[UPDATE] Comptroller of State Sales Tax, Sarawak & 1 other v Petroleum Nasional Berhad (Petronas)
by Avinash Kamalanathan ~ 24 March 2020
“The law will not suppose a possibility of bias in a judge who is sworn to administer impartial justice and whose authority greatly depends on that presumption and idea.”
This piece seeks to analyse the recent decision by the High Court in the case of Comptroller of State Sales Tax, Sarawak & 1 other v Petroleum Nasional Berhad (Petronas) wherein an application to recuse the Judicial Commissioner (JC) by the Defendant (Petronas) was dismissed.
This application was unique in its nature as the Defendant was seeking to recuse the learned JC on an alleged perceived by bias which, if any, would have favoured the Defendant.
The rationale for this application was due to the fact that the confirmation of a Judicial Commissioner is a decision made, inter alia, by the Prime Minister of the nation. This then, as alleged by the Defendant, creates a perceived bias for the Defendant as the Prime Minister and Petronas are linked due to Petronas being ‘subject to the control and direction of the Prime Minister’. Therefore, to avoid there being any public perception that the ultimate decision of the learned JC could be skewed, the application to recuse was filed.
TEST IN RECUSAL
What the Court needs to be satisfied of prior to allowing an application for recusal is the test of a real danger of bias by the Judge. There are two forms of biasness; apparent/perceived bias or actual bias. For the purposes of this article, the discussion will be solely on the element of perceived biasness.
Bar Council Malaysia v Tun Dato’ Seri Arifin Zakaria & Ors And Another Reference; Persatuan Peguampeguam Muslim Malaysia (Intervener) 10 CLJ 1291 (FC) at p.140:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
Gillies and Secretary of State for Work and Pensions  UKHL 2 at :
“The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matter, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed, as Kirby J put it in Johnson v. Johnson  201 CLR, 488, 509, para 53, that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.”
Premised on the two passages above, the test is a purely objective one. In applying the test to the case at hand, it ought to be reflected as follows:
Would a fair-minded and informed observer conclude that there is a real possibility of biasness due to the learned JC, being subject to confirmation by, amongst others, the Prime Minister, in determining a matter involving Petronas, in which the Prime Minister is so intrinsically linked?
DECISION BY THE HIGH COURT
The learned JC dismissed the application and briefly these were his Lordship’s grounds:
“Even the judiciary has the right to the presumption of innocence.”
i. The oath of office taken by a Judicial Commissioner is the guiding principle and a judge must be satisfied that he or she would decide the case before him based only on the relevant law and facts.
ii. All decisions of a JC are subject to appeal and revision by the Appellate Courts. Any ruling blatantly favouring the executive will be apparent to the appellate judges and the record of the particular JC would be tarnished.
iii. Procedures within the Judicial Institution such as the uncertain tenure of the Judicial Commissioner’s post cannot be a ground to recuse a judge for a judge is sworn to administer impartial justice. A recusal on the above ground defeats that presumption.
iv. Judicial Commissioners cannot be presumed to be biased purely on the temporary nature of their tenure.
v. A judge should not be quick to recuse himself for it may set a precedent for litigants judge shopping and on the opposite end of the spectrum, a judge case shopping.
This decision was appealed to the Court of Appeal by the applicants (Petronas) and was dismissed by the appellate court. Safe to say, the written grounds of the Court of Appeal are eagerly anticipated.
The practical implications of an application to recuse a judge has always been one that required reform. In simple terms, such an application is essentially informing the judge that he or she is not fit to hear the case for whatever reason, be it personal or institutional.
The above is not stating that a judge is biased when determining an application to recuse for it is severely presumptuous to say that a judge is incapable of having the judicial appreciation to determine a matter solely on the law and the grounds put before him. Even if the same is in relation to his or her own impartiality in determining a case.
However, it quite certainly falls squarely within what has been widely accepted as a conflict of interest in every other circumstance. The prejudicial value here clearly indicates that change is needed. Change here should at the very least be that any application to recuse a judge ought to be heard by a separate judge of similar standing, if not of a higher standing.
This is beneficial to the applicant and more importantly to the judge sought to be recused as he need not make a determination on his own suitability to hear a matter.
As alluded to by YA Tan Sri Idrus Harun FCJ, there is pressure on a judge when hearing an application to recuse his or herself. With all the pressures that come with being a judge, this is one that can and should be alleviated of their shoulders.
The application (and now the appeal) by Petronas in this case to recuse the learned JC is one that we ought to keep a close eye on, as it is an application filed by the party which ought to benefit from the alleged biasness of the JC. Such applications are not the norm.
Nevertheless, reforms seem a necessity in this area of law. It would be beneficial for both the judiciary and litigants. Whilst the fear of judge shopping by litigants does arise as alluded to by Justice Vernon Ong, these are issues that can be curbed by high awards of costs for applications filed without merit.
Honourable mention ought to be given to the learned JC for his Grounds of Judgment which were bold and very well-articulated. It epitomized the independence of the institution that is the Malaysian Judiciary. Something we should all take much pride in.