Justice should not only be done, but should manifestly and undoubtedly be seen to be done

Justice should not only be done,

but should manifestly and undoubtedly be seen to be done

Every judge, unless he is a bad judge, knows that the right thing to do is to apply the oft-repeated saying of Lord Chief Justice Hewart in R v. Sussex Justices, ex parte McCarthy: “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

As Lord Denning would have put it in Metropolitan Properties Co (FGC) Ltd v. Lannon [I9691 1 Q.B. 577: “The court will not inquire whether he did in fact, favour one side unfairly. Suffice in that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

When perception matters most

It is the perception of the people that matters; and the confidence of the people is destroyed when they go away thinking that he was biased – that he had been influenced by the other party.

The judge’s reputation for fairness and justice has been shattered when they go away thinking that he had been influenced by the other party. It does not matter whether he did, in fact, favour one side unfairly. 

Suffice it that reasonable people might think that he did. The die is cast and we cannot put the clock back. Hereafter, there may be many who will no longer believe in his speeches on good governance and the integrity of the judiciary. 

The impression is that he does not practise what he preaches.

FROM MALAYSIAKINI