Doctrine of bias in Singapore law

Bias is one of the grounds of judicial review in Singapore administrative law which a person can rely upon to challenge the judgment of a court or tribunal, or a public authority's action or decision.

Imputed bias arises when a decision-maker has a pecuniary (monetary) or proprietary (property related) interest in the decision he or she is charged to adjudicate.

In Re Shankar Alan s/o Anant Kulkarni (2006), a different High Court judge disagreed with this view, holding that the reasonable suspicion test is less stringent as it requires a lower standard of proof than satisfaction on a balance of probabilities.

It is an aspect of the principle nemo iudex in causa sua – no one should be a judge in his or her own cause – which is regarded as one of the twin pillars of natural justice.

[4] What public authorities must do to avoid bias was expressed in the High Court of Singapore decision Re Singh Kalpanath (1992)[7] by Justice Chan Sek Keong as follows: "A judge is expected to maintain the highest standard of conduct in the exercise of his functions.

[10] In Chee Siok Chin v. Attorney-General (2006),[11] allegations of actual bias were made based on the actions of the judge, Justice Belinda Ang.

[12] Justice Ang adopted the view in Locabail (UK) Ltd. v. Bayfield Properties Ltd. (1999)[13] that cases of actual bias are rare due to the difficulty of proving the existence of a prejudiced judicial mindset.

In Wong Kok Chin v. Singapore Society of Accountants (1989),[20] the High Court held that people hearing disciplinary proceedings have to approach the issue with an open mind without prejudgment.

[34] Similarly, in the Alkaff case Acting Chief Justice Terrell noted that the rule against bias applied even though, quoting the trial judge, "[the Commissioner of Lands] was in fact completely unbiased.

[38] It observed:[39] If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit.

The Court of Appeal of England and Wales noted that while it is "dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias", such a danger may be found if, among other things, a judge is found to be:[40] ... closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind ...; or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him.In Alkaff,[5] the Singapore Improvement Trust (SIT) had made three proposals for back lanes to be laid out.

The Governor-in-Council appointed the Commissioner of Lands, who was an ex officio member of the SIT, to inquire into the merits of the proposals, and eventually made orders approving them.

[41] Imputed bias was also referred to in Yong Vui Kong v. Attorney-General (2011),[42] which involved the issue of whether the President exercises the power of clemency in his personal discretion or whether he is required to act upon the Cabinet's advice.

The appellant argued that Chief Justice Chan Sek Keong, who was a member of the Court of Appeal hearing the matter, ought to be automatically disqualified.

[45] In the Court's view, the disqualification application was frivolous and appeared to be motivated to diminish the judicial process such that a fresh hearing had to be convened.

[52] This is essentially the same position in Singapore, as Tang Liang Hong v. Lee Kuan Yew (1997),[53] which applied the Australian cases Bainton v. Rajski (1992)[54] and Re JRL, ex parte CJL (1986),[55] indicates.

It omitted from the test the reference to "real danger" as it was not mentioned in European Court of Human Rights cases and "no longer serve[d] a useful purpose here".

Following the legal developments in the UK, the test for apparent bias in Singapore was extensively reconsidered by the High Court in the 2005 case Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board.

According to him, "[t]he common substance of both tests appears, in a nutshell, to be this: The key question is whether or not there was a perception on the part of a reasonable person that there would be a real likelihood of bias".

[67] Judicial Commissioner Phang also thought that "one ought not to draw a sharp distinction between the court's perspective ... and that of the public" as both are "integral parts of a holistic process".

In Re Shankar Alan s/o Anant Kulkarni (2006),[71] Judicial Commissioner Sundaresh Menon definitively answering the question left open by Phang as to whether the two tests for apparent bias were the same.

[73] Menon disagreed with both Lord Goff in Gough and Judicial Commissioner Phang in Tang Kin Hwa in that he thought the shift of the inquiry from how the matter might appear to a reasonable man to whether the judge thinks there is a sufficient possibility of bias was "a very significant point of departure"[74] The real likelihood test is met as long as the court is satisfied that there is a sufficient degree of possibility of bias.

As Judicial Commissioner Phang put it in Tang Kin Hwa, "a definitive view ought to be expressed by the Singapore Court of Appeal itself.

Therefore, the suggested approach is that the court, in personifying the reasonable man, should take into account all relevant circumstances and determine if there is the suspicion or possibility of the appearance of bias whilst being mindful to exclude considerations stemming from the individual judge's personal preferences, special knowledge and legal sophistication.

[84] Dame Sian Elias, the Chief Justice of New Zealand, observed at a lecture to the Singapore Academy of Law in 2004 that while the appearance of impartiality matters, it is necessary to acknowledge that good judges cannot be "ideological virgins",[85] and that it is disadvantageous to require them to be cloistered from society.

[88] According to Anwar Siraj v. Tang I Fang (1982),[89] necessity is the greatest single common law exception to the general rule that an adjudicator who appears to be biased or prejudiced must disqualify himself from participating in a proceeding.

The rule applies regardless of whether the disqualification arguably arises from the combination of prosecutorial and judicial functions, pecuniary interest, personal hostility or bias.

If the parties choose to proceed on with the claim without any objections to the judge, it stands to reason that a court will infer a waiver to the accusation of bias if either party had not raised an objection to bias at the commencement of a suit or at any time during it, following the approach taken by Locabail which was applied by the Federal Court of Malaysia in M. G. G. Pillai v. Tan Sri Dato' Vincent Tan Chee Yioun (2002).

[92] In Locabail, Mrs. Emmanuel and her lawyers did nothing after the judge's disclosure of a conflict of interest and only sprung into action to complain about bias after learning she had failed in her claims.

[93] Similarly, in Pillai, although the applicant had knowledge of all matters grounding his complaint of bias before judgment was delivered, he only decided to complain after he had lost the appeal.