Saturday, 3 April 2010

Bias Jurisprudence & Institutionalised Racism

Judicial Bias - A Fine Line Between Bias & Racism
Wikipedia, The Free Encyclopedia Jurisprudence on Bias

Dr S Deman, BSc, MA (India), MA&ABD (US)
M.Phil (UK), PhD (Japan)

Administration of justice has always been a controversial subject in democratic societies within an institutional framework of capitalism operating under the umbrella of globalisation. Criticism of democracy as an institution of governance ‘flourishing’ under the principle of one-dollar-one vote is quite well known despite claim of consumer sovereignty, free speech and fairness based on Hayekian lassaize fair economy and Karl Popperian principles of testing a conjecture. If the objectives of economic growth and social justice are in conflict in a capitalist democracy due to inadequacy of theory of distribution in Neo-Classical economics then the same conflict remain unresolved in administration of justice in legal system bequeathed by capitalism. However, our task is limited to judicial bias. It is possible to identify in judicial decisions a number of principles emerging and scope for further challenges to the conduct, as opposed to the decisions, of courts and tribunals. At the same time the implications of these decisions may make even more difficult the task of dispensing justice to parties in the legal system by those who are appointed through the political process.

In the literature on Jurisprudence of judicial bias, it is diffcult to prove actual bais but a general rule is that where there is evidence of actual or apparent bias, the judge in question will automatically be disqualified from hearing the case. Recently, Landy Smith in D'Silva v UCU & others [2009] recused herself before the hearing commenced.  Lord Sadley and Lord Walls heard Dr D'Silva's appeal and granted permission in first instance and then upheld the appeal by striking out HHJ McMullen's racist comments about the Council for Ethnic Minority.  As Lord Hewart puts in R v Sussex Justices, ex parte McCarthy (1924), it is of “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. Perhaps unsurprisingly, applications for judicial recusal tend to be brought, not on the back of allegations of actual bias, but on the less emotive grounds of apparent bias: that a “a fair-minded and informed observer [may] conclude that there was a real possibility that the tribunal was biased” (Taylor v Lawrence (2003).

Since the the well-known Pinochet extradition proceedings in 1998, the House of Lords’ original decision was set aside on the basis of apparent bias because of Lord Hoffmann’s links to Amnesty International, effectively one of the parties to the proceedings, there has been renwed interest in  jurisprudence on bias.  In fact, applications for recusal have dominated fisrt decade of the new millenium 2000.  A flavour of recusal applcations can be gleaned in Alexander Morrison and Anor v AWG Group Limited and Anor (2006), where the Court of Appeal held that Mr Justice Evans-Lombe should recuse himself as he had known one of the parties’ potential witnesses socially for some 30 years and in Norbrook Laboratories v A Tank and Moulson Chemplant (2006), an arbitrator was compelled to stand down having contacted witnesses to the case direct, while not informing the parties that he had done so. This was enough to give rise to the real possibility of bias.  The author provides a chronolgy of cases laws and facts which can be found in

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