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
minded and informed person in deciding whether or not there is a reasonableapprehension of bias. 44Irrelevant grounds89. A judge’s religion, ethnic or national origin, gender, age, class, means orsexual orientation may not, as such, usually form a sound basis for an objection.Nor, ordinarily, can an objection be soundly based on the judge’s social,educational, service or employment background; a judge’s membership of social,sporting or charitable bodies; previous judicial decisions; or extra curricularutterances. However, these general observations depend on the circumstances of theparticular case and on the case before the judge.Friendship, animosity and other relevant grounds for disqualification90. Depending on the circumstances, a reasonable apprehension of bias might bethought to arise in the following cases:(a) If there is personal friendship or animosity between the judge and anymember of the public involved in the case;(b) If the judge is closely acquainted with any member of the public involvedin the case, particularly if that person’s credibility may be significant in theoutcome of the case;(c) If, in a case where the judge has to determine an individual’s credibility, heor she had rejected that person’s evidence in a previous case in terms sooutspoken that they throw doubt on the judge’s ability to approach thatperson’s evidence with an open mind on a later occasion;(d) If the judge has expressed views, particularly in the course of the hearing,on any question at issue in such strong and unbalanced terms that they castreasonable doubts on the judge’s ability to try the issue with an objectivejudicial mind; or(e) If, for any other reason, there might be a real ground for doubting thejudge’s ability to ignore extraneous considerations, prejudices andpredilections, and the judge’s ability to bring an objective judgment to bearon the issues.44 See Panton v Minister of Finance, Privy Council on appeal from the Court of Appeal ofJamaica, [2001] 5 LRC 132; Kartinyeri v Commonwealth of Australia, High Court ofAustralia, (1998) 156 ALR 300.72
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United NationsOffice on Drugs and C
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CONTENTSPreface… ................
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DRAFTING HISTORYI. BackgroundIn Apr
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g. The Iowa Code of Judicial Conduc
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IV. The Bangalore Draft Code of Jud
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Davide of the Supreme Court of the
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The Commission has frequently expre
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(h) Requested the UNODC to convene
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Value 5EQUALITYPrinciple:Ensuring e
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Application5.1 A judge shall be awa
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5.3 A judge shall carry out judicia
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5.5 A judge shall require lawyers i
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Value 6COMPETENCE AND DILIGENCEPrin
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Application6.1 The judicial duties
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judgment, the expedition of cases,
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The quality of judgment and demeano
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6.4 A judge shall keep himself or h
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about decisions that appear to them
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impossible, to suggest a uniform st
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IMPLEMENTATIONBy reason of the natu
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DEFINITIONSIn this statement of pri
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AnnexCULTURAL AND RELIGIOUS TRADITI
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When a judge does not inquire into
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. . . deal impartially with the sui
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Jewish LawThe following is an extra
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Sanity: A person whose judgment is
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9. A judge must be prompt in delive
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8. He must not permit a litigant to
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SELECT BIBLIOGRAPHYBooks and Monogr
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Delaware Judicial Ethics Advisory C
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INDEX 80accused personrights, 49app
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prompt disposal of matters, 207rese
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apprehension of bias, 56abuse of co
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family members, activities of, 69fo
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personal knowledge of disputed fact
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sentencing, rights relating to, 50s