publications_unodc_commentary-e

2.5 A judge shall disqualify himself or herself fromparticipating in any proceedings in which the judge isunable to decide the matter impartially or in which it mayappear to a reasonable observer that the judge is unableto decide the matter impartially.CommentaryThe reasonable observer77. The Bangalore Draft referred to a “reasonable, fair-minded and informedperson” who “might believe” that the judge is unable to decide the matterimpartially. The formulation in the Bangalore Principles - “may appear to areasonable observer” - was agreed upon at The Hague meeting in November 2002on the basis that “a reasonable observer” would be both fair-minded and informed.“One may not be a judge in one’s own cause”78. The fundamental principle is that one may not be a judge in his or her owncause. This principle, as developed by the courts, has two very similar but notidentical implications. First, it may be applied literally: if a judge is in fact a party tothe litigation or has an economic interest in its outcome, then he or she is indeedsitting as a judge in his or her own cause. This is sufficient ground fordisqualification. Second, the principle can also be applied in cases where a judge isnot a party to the suit and does not have an economic interest in its outcome, butbehaves in such a way as to give rise to a suspicion that he or she is not impartial;for example, through friendship with a party. This second case is not strictlyspeaking an application of the principle that one must not be a judge in his or herown cause since the judge’s real or perceived partiality does not normally benefithim or her but another person. 40Consent of parties irrelevant79. Even if the parties consent to a judge who feels he or she should bedisqualified, the judge would not be justified in continuing to preside over the case.This is because the public also has an interest in the manifestly impartialadministration of justice. Nevertheless, in most countries the parties are entitled tomake a formal waiver on any issue of impartiality. Such a waiver, if properly40 R v. Bow Street Stipendiary Magistrate, Ex parte Augusto Pinochet Ugarte (No.2), Houseof Lords, United Kingdom, [1999] 1 LRC 1.68