publications_unodc_commentary-e

countenances the possibility that justice might not be seen to be done, even where itis undoubtedly done. In other words, it envisions the possibility that the judge maybe totally impartial in circumstances which nevertheless create a reasonableapprehension of bias, requiring the judge’s disqualification. But even where theprinciple is understood in these terms, the criterion for disqualification still lies inthe judge’s state of mind, albeit viewed from the objective perspective of thereasonable person. The reasonable person is asked to imagine the judge’s state ofmind, under the circumstances. In that sense, the oft-stated idea that “justice mustbe seen to be done” cannot be severed from the standard of reasonable apprehensionof bias.A judge should not be unduly sensitive when recusal is sought87. A judge should not be unduly sensitive and ought not to regard an applicationfor recusal as a personal affront. If the judge does take recusal as a personal affront,his or her judgment is likely to become clouded with emotion. Should the judgeopenly convey that resentment to the parties, the result will most probably be to fuelthe applicant’s suspicion. Where a reasonable suspicion of bias is alleged, a judge isprimarily concerned with the perceptions held by the person applying for therecusal. It is equally important that the judge should ensure that justice is seen to bedone, which is a fundamental principle of law and public policy. The judge shouldtherefore so conduct the trial that open-mindedness, impartiality and fairness aremanifest to all those who are concerned in the trial and its outcome, especially theapplicant. Accordingly, a judge whose recusal is sought should bear in mind thatwhat is required, particularly in dealing with the application for recusal, isconspicuous impartiality. 43Previous political affiliations may not be ground for disqualification88. Any responsibilities and interests that the judge may have had during thecourse of his or her professional career prior to appointment to the judiciary may betaken into account in assessing his or her impartiality. In countries where judges aredrawn from the private profession of advocate, a judge is likely to have held anoffice or appointment in which he or she may have given public expression toparticular points of view or acted for particular parties or interests. This willnecessarily be so if he or she had been involved in political life. Experience outsidethe law, whether in politics or in any other activity, may reasonably be regarded asenhancing a judicial qualification rather than disabling it. But it has to berecognized and accepted that a judge is expected to leave behind and put asidepolitical affiliations or partisan interests when he or she takes the judicial oath oraffirmation to perform judicial duties with independence and impartiality. That hasto be one of the considerations which should weigh in the mind of a reasonable, fair-43 See Cole v Cullinan et al, Court of Appeal of Lesotho, [2004] 1 LRC 550.71