01 August 2013

On Bias

This article was written over a decade ago, during the Benazir Bhutto’s appeal against her conviction by an Accountability Court.  Then, the Court convicting her was accused of bias.  I wrote this article - part of a series of columns for TFT on the miscellany of law - reflecting on some aspects of bias.

Recently, the Supreme Court has been criticised for being biased again.

The Mohtarma Benazir Bhutto is launching another attempt to enter Pakistan triumphantly, bringing allegations of bias against the judiciary with her.  Her lawyers who, at this moment, are prevaricating and delaying in our august Supreme Court, seek to introduce into evidence, amongst other things, alleged phone conversations recorded by (what our press likes to call) the ‘sensitive’ agencies.

Sensitive or not, these intelligence agencies seem to have tapped the phones of the judges hearing Ms. Bhutto’s case in 1999.  More interesting is the alleged phone conversation between the then Law Minister, Khalid Anwar, and the High Court Judge Malik Mohammad Qayoom.  Less interesting is Khalid Anwar’s tepid defense of his actions (published in the daily DAWN).

One of the rules of ‘Natural Justice’ is that everyone is entitled to be heard by a judge who is not biased or prejudiced in a way that precludes a fair and genuine trial.  This rule of Natural Justice was first set out by Lord Hewart CJ in what is now a familiar phrase: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done” (R v. Sussex JJ., ex parte McCarthy [1924] 1 KB 256).  Of course, judges are only human, and it impossible to expect from them “the icy impartiality of a Rhadamanthus”, the cruel judge of Hell, who punished before he heard (cited by Bowen LJ in Jackson v. Barry Ry. [1893] 1 Ch 238).  Evidently, even Satan is unfamiliar with that other rule of Natural Justice, the audi alterem partem principle that no one should be condemned unheard.  But I digress.  Judges are not supermen, an astute observation made by our Supreme Court (for more on that particular farce, read Justice Akhlaq Hussain’s case PLD 1969 SC 201).  They are men, and hence liable to their individual temper, constitution and passion; which is why if and when these three emotions are exercised, a litigant is entitled to a new, unbiased trail.

The tests for bias are settled principles of law, but their development has thrown up the odd case or two of some interest. 

Take, for example, R. (Donoghue) v. Cork County JJ. ([1910] 2 IR 271) where the conviction by an Irish magistrate – and it is important to remember the Magistrate was Irish – of a certain defendant was quashed when it was shown that “a very bad feeling” existed between him and the defendant’s family.  DeSmith’s does not elaborate on the case, and reveals only that the animosity was the result of “a trespass by a fowl.”  Ghar ki murghi = conviction, I suppose.

The natural right of every litigant to have a fair trial is so fundamental to the practice of the law that even the most absurd allegations of bias have been adjudicated upon.  In R v. Dublin JJ. ([1904] 2 IR 75), the owners of a public house whose liquor license had not been granted by the licensing judge (in England, establishments that serve liquor must have permission to do so) brought a case of bias against him on the grounds that he was a teetotaler.  Their argument was that the licensing judge’s state of mind was “likely to prevent him from dealing fairly with applications before him”.  The challenge, however, was unsuccessful.

Of course, the act of trying to bias a judge is a different story altogether.  An Indian case, reported as 45 Cr LJ 244 (RC) is quite succinct on the issue: Here, interference by a minister in a trial case was proved.   It was decided that the case was to be retried because of this alleged interference, even though it had not been proved whether or not it had been a cause of the verdict.  Of course, all this case puts Mr. Khalid Anwar’s rather tepid defense of his action in serious doubt, regardless of what Ardeshir Cowasjee or Amina Jilani may say.  

For the prosecution, on the other hand, the issues raised by these tapes are different.  To them it seems that the introduction of the tapes into evidence is only a means to divert attention from the fact that Ms. Bhutto and her husband are guilty of corruption.  Their argument before the Supreme Court will attempt to bar the admission of the tapes into evidence on the grounds that the phone tappings were obtained unlawfully. In the United States, for example, the Supreme Court has held that under the Constitution a conviction obtained on evidence disclosed an unlawful search (which include phone tappings) cannot stand. The zeal of the prosecution team can be understood.  For them, the threat is that Ms. Bhutto and her husband will be acquitted on a technicality.  The American Supreme Court judge Benjamin Cardozo once expressed a similar view on the American law in People v. Defore (242 NY 13), describing it as one by which “the criminal is to go free because the constable has blundered.”  But one wonders if the prosecution’s zeal has not clouded their better judgment: A convict is still entitled to a fair trial.  Denying Benaizir this right can set an awful precedent.  The rule of law cannot be denied, for even the devil is entitled to a fair trial.

Robert Bolt’s play, “A Man for All Seasons”, sets out an eloquent defense of the rule of law. Henry VIII’s former Chancellor, Sir Thomas More, refused to take an oath “renouncing all obedience to the Bishop of Rome” and acknowledging the King as head of the Church of England.  Of course, he was tried for treason (the analogies with Pakistan are so glaringly obvious that one need not dwell on them).

Richard Rich, once a friend of More’s, gave fatal evidence against him.  In the play, Rich’s treachery is forecast in a powerful exchange between More, his daughter, Margret, and her husband-to-be:

MARGRET (speaking of Rich): Father, that man’s bad.
MORE:  There is no law against that.
ROPER:  There is! Gods law!
MORE:  Then God can arrest him.
ROPER:  Sophistication upon sophistication.
MORE:  No, sheer simplicity.  The law, Roper, the law.  I know what’s legal not what’s right.  And I’ll stick to what’s legal.
ROPER:  Then you set Man’s law above God’s!
MORE:  No, far below; but let me draw your attention to a fact – I’m not God.  The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate, I’m no voyager.  But in the thickets of the law, oh there I’m a forester.  I doubt if there’s a man alive who could follow me there, thank God . . . (He says this to himself.)
ALICE  (exasperated, and as is pointing to Rich): While you talk, he’s gone!
MORE:  And go he should if he was the Devil himself until he broke the law!
ROPER:  So now you’d give the Devil benefit of law!
MORE:  Yes.  What would you do?  Cut a great road through the law to get after the Devil?
ROPER:  I’d cut down every law in England to do that!
MORE  (roused and excited): Oh? (Advances on Roper.)  And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat?  (Leaves him.)  This country’s planted thick with laws from coast to coast – Man’s law, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then?  (Quietly.)  Yes, I’d give the Devil benefit of law, for my own safety’s sake.

It’s a pity, then, that More’ faith in the law did not work out.  He was condemned to a traitor’s death, but ‘mercifully’ this was commuted to just execution.  Of course, Benazir’s case is not one of life imitating art, and so Thomas More (and his gory fate) cannot be used as arguments.  Our Supreme Court should give Ms. Bhutto the fair trail she deserves, and ensure that the rule of law is protected and preserved.

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