Contemporary issues of bias in adjudication

• Author: Calvin A. Eversley
• Position: Senior Lecturer in Law, University of Guyana
• Pages: 276-296

CONTEMPORARY ISSUES OF

BIAS IN ADJUDICATION

CALVIN

A. EVERSLEY*

INTRODUCTION

Recently, in the United Kingdom and Guyana, a startling and unthinkable

scenario has emerged whereby two final Courts of Appeal have run afoul of

that ancient and sacred principle of natural justice that no man shall be

a

judge

in his own cause. Like King Belshazzar of the fallen Babylonian empire of old

they have been, in this particular context, "weighed in the balance, and found

. . .

wanting."4

Furthermore, in the case of Guyana, the issue of unconstitu-

tionality is also impacted since the principle of impartiality in the adjudication

process has been buttressed in the constitution

itself.

The rule against bias in adjudication has been authoritatively established

and re-affirmed in many high judicial authorities from as early as 1613, as

illustrated by the case of Egerton v. Lord

Derby.

Also in 1852, in the classic

case of Dimes v. Grand Junction Canal,7 the decrees of no less a person than

the Lord Chancellor himself were nullified by the House of Lords on the

*Senior Lecturer in Law, University of Guyana.

1

Re

Pinochet

Ugarte

(No.2), 1999, House of Lords, Publications on the Internet; [2000] 1

A.C. 119 (also referred to herein as

Re

Pinochet).

2 Drepaul

v.

Alphonso,

Appeal

No.

13

of

2000;

Alphonso

v.

Drcpaul,

Petition No.30 of 2000.

3 In the case of

Pinochet

it was the presumed bias of one Law Lord alone,

i.e.

Lord Hoffmann,

which tainted the entire majority decision of three. Whereas, with respect to the Guyana

Court of Appeal, all three of the appellate judges were judges in their own cause and were

therefore automatically disqualified. The Law Lords later redeemed themselves by nullifying

their earlier decision. Sadly, however, this distinction of humility eluded the Guyana Court

of Appeal.

4 Dan. 5: 27.

5 See Article 144 of the Guyana Constitution.

6 (1613) 12 Co.

Rep.

114.

7 (1852) 3HLC 759.

ground that the Lord Chancellor had acquired a pecuniary interest of some

several thousand pounds in the canal company in question.8 It is to be noted

that the Lord Chancellor was merely affirming a number of decrees which were

already made by the Vice Chancellor in favour of the said company.

Moreover, the House of Lords found that the Lord Chancellor was not in

fact affected by the presumed bias arising from his pecuniary interest.10 Indeed,

Lord Campbell, speaking on behalf of the House of

Lords,

pellucidly expressed

both the principle and the rationale in these terms:

"No one can suppose that Lord Cottenham could be, in the remotest degree,

influenced by the interest that he had in this concern; but, my Lords, it

is

of the first

importance that the maxim, that no man is to be

a

judge in his own cause, should be

held

sacred.

And it will have a most

salutary

influence on (inferior) tribunals, when it

is known that this high Court, of last

resort,

in a

case

in which the Lord Chancellor of

England had an interest, considered that his decree was on that account a decree not

according to law, and

was

set

aside.

This will be

a lesson

to all infirior tribunals to take

care not only that in their

decrees

they are not influenced by their personal

interest,

but

to avoid the appearance of labouring under such an influence."

JUDGE NOT LEST YE BE JUDGED12

This biblical injunction prescribed by our Lord Jesus Christ, which I am sure

finds expression in a number of varying religions, gives vivid expression to the

grave and sacred responsibility which is cast on any person who is entrusted

with that high and noble task of judging his or her fellow man or woman. At

one

level,

it enjoins us not to judge another man or woman. However, I would

suppose that even this rigid interpretation would permit of one logical excep-

tion and that is where someone has been duly appointed as a judge by those

persons or institutions vested with the legitimate authority to appoint judges.

At another level, it pronounces upon both those who judge by legitimate

or lawful authority and those who judge without any authority whatsoever;

the divine judgment being that diey will be judged in the very manner and

8 Wade and Forsyth,

Administrative Law

7th edn. (1994) p.

471.

9

Ibid.

10

Ibid.

11 (1852) 3 HLC at 793-794 (emphasis supplied).

12 (Adapted) Matt, 7: 1.