Public trust and confidence in a legal system rely heavily on the judicial system and, in particular, on the way in which judges conduct themselves, both inside and outside the courts. This column discusses the concept of judicial impartiality by reference to internationally recognised principles, and the rules that apply in two jurisdictions – the Hong Kong Special Administrative Region and mainland China. It then outlines a current inquiry into judicial impartiality in Australia by the Australian Law Reform Commission.
The concept of judicial impartiality, which includes the need for judges to avoid bias and conflicts of interest, is an integral element of the notion of justice. As this column has previously noted, the notion of justice has often been depicted in Western culture in the form of a blindfolded lady, Lady Justice, who carries a sword and a set of scales. The blindfold represents objectivity and impartiality, and the concept that everybody is equal before the law.
The scales represent the need to weigh or balance the evidence on both sides of a dispute before arriving at a decision, reflecting the concept of fairness. The sword represents swift and final punishment, and is usually held with the blade pointed downwards, or below the scales, to show that the weighing of evidence precedes punishment (for a discussion about justice, see China Business Law Journal volume 11, issue 7: The notion of justice).
The need for judges to be impartial, and for the public to have confidence in the impartiality of judges, is also reflected in the dress that judges wear in court (for a discussion about court dress, see China Business Law Journal volume 10, issue 9: Wigs and robes).
Like other people, however, judges are vulnerable to natural biases as a result of their personal background and world view. It is therefore important for judges to minimise the risk that their judgment will be influenced by natural biases by receiving training and increasing their awareness of areas in which natural biases may arise. One area in which judicial training is becoming increasingly important is strengthening judicial awareness of cultural diversity (for a discussion about this area, see China Business Law Journal volume 11, issue 3: Culture in the courtroom).
The Bangalore Principles of Judicial Conduct arose following a meeting that was held in 2002 between a group of judges from both common law and civil law jurisdictions. When the Bangalore principles were endorsed by the UN Commission on Human Rights in April 2003, they became an important statement of internationally recognised principles to guide judges in respect of their conduct. The Bangalore principles identify six core values: Independence; impartiality, integrity; propriety; equality; and competence and diligence. Each of these values is supported by relevant principles.
In relation to impartiality (Value 2), the Bangalore principles identified the following principle:
Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself, but also to the process by which the decision is made.
The above-mentioned principle reflects the notion that justice must not only be done, it must also be seen to be done. It also reflects the reality that the process by which a decision is made not only affects the decision itself, but also the way in which the fairness of the decision is perceived by those who are affected, and the broader public.
Hong Kong SAR
The concept of judicial impartiality is expressly incorporated into the judicial codes of conduct or ethics in many jurisdictions. In the Hong Kong Special Administrative Region, the Guide to Judicial Conduct provides as follows:
11. Three guiding principles are relevant to any consideration of judicial conduct. First, a judge must be independent. Second, a judge must be impartial. Third, a judge must display integrity and propriety in all matters of conduct, both in and out of court.
18. Impartiality is the fundamental quality required of a judge. Judges should conduct themselves in and out of court in a way that maintains confidence in their impartiality and that of the Judiciary.
19 Justice must be done and must be seen to be done. Impartiality must exist both as a matter of fact and as a matter of reasonable perception. If partiality is reasonably perceived, that perception is likely to leave a sense of grievance and of injustice having been done, which is destructive of confidence in judicial decisions.
20 The perception of impartiality is measured by the standard of a reasonable, fair-minded and well-informed person, as discussed more fully in relation to questions of apparent bias.
21 A perception that a judge is not impartial may arise in a number of ways, for instance, by a perceived conflict of interest, by the judge’s behaviour on the bench, or by the judge’s out-of-court associations and activities.
(for the Chinese version, see https://www.judiciary.hk/doc/zh/publications/gjc_c.pdf )
Paragraph 19 expresses the need for impartiality to exist, both as a matter of fact and also as a matter of reasonable perception. Paragraph 20 confirms that an objective standard is applied in measuring the perception of impartiality, and refers to the question of apparent bias. Similar to the rules in other common law jurisdictions, the rules in Hong Kong provide that judges should be disqualified from hearing a case not only if there is actual bias, but also if there is apparent (or apprehended) bias. The rule in respect of apparent bias is as follows:
A particular judge is disqualified from sitting if the circumstances are such as would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the judge would be biased.
Two key questions arise out of this rule – the specific criteria that should be applied to determine whether there is apparent bias on the part of a judge; and the process by which a judge should be disqualified in circumstances that involve apparent bias.
The rules governing the conduct of judges in mainland China also recognise the requirement of judicial impartiality. In 2010, the Supreme People’s Court issued the Basic Rules on Professional Ethics of Judges of the People’s Republic of China. These rules include the following provision in respect of judicial impartiality and recusal for apparent bias:
When performing their duties, judges must achieve substantive impartiality and procedural impartiality, and reflect impartiality through their words and deeds inside and outside the court, so as to prevent the public from having reasonable doubts about judicial impartiality.
During trial activities, apart from consciously abiding by the recusal system as provided by law, if judges believe that the public may have reasonable doubts about the impartiality of [their] judgment in respect of a case that they are hearing, they should make a request that it is not appropriate [for them] to hear the case.
In 2011, the Supreme People’s Court issued the Provisions on Several Issues Concerning the Implementation of the Recusal System of Judges in Litigation Activities. The provisions are expressed to be issued “to further regulate the recusal conduct of judges in litigation, and safeguard judicial impartiality”, and set out rules of conduct for judges to follow, including a prohibition on meeting separately with a party or its representative:
During trial activities, a judge must not privately meet with a party or its representative alone.
A similar provision appears in article 32(12) of the Judges Law.
Under article 10, judges must treat the parties equally and must not express any prejudice through their words or actions. In addition, judges must pay sufficient attention to differences arising out of factors such as nationality, race, religious beliefs and educational levels. This is an interesting example of a written requirement for judges to be aware of the factors that create cultural diversity.
Australia Law Reform Commission inquiry
As noted at the beginning of this column, the Australian Law Reform Commission is currently conducting an inquiry into the principle of judicial impartiality and the law governing judicial bias in Australia (for a discussion about law reform and law reform bodies, see China Business Law Journal volume 12, issue 2: Law reform). The Terms of Reference for the Inquiry, i.e., the questions to be considered by the commission, are as follows:
. Whether the existing law about actual or apprehended bias relating to judicial decision-making remains appropriate and sufficient to maintain public confidence in the administration of justice;
. Whether the existing law provides appropriate and sufficient clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality;
. Whether current mechanisms for raising allegations of actual or apprehended bias, and deciding those allegations, are sufficient and appropriate, including in the context of review and appeal mechanisms; and
. Any other matters related to these terms of reference.
Interestingly, one of the factors that led to the Inquiry was a family law case in Australia in which the judge had failed to disclose private contact, consisting of private drinks and social interactions, with the counsel for one of the parties. The case was appealed on the question of whether the private contact gave rise to a reasonable apprehension of bias on the part of the judge, and is currently the subject of a further appeal to the High Court, which is the final appeal court in Australia.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew is currently on secondment to the ALRC as special counsel to assist with its inquiry into corporations and financial services regulation. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com