IN his judgment in the case of Metropolitan Properties Co (FGC) Ltd v Lennon [1969] 1 QB 577, Lord Denning said, and I quote: "It brings home this point: in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity.

" It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people.

"Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.

"Nevertheless there must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court would not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough.

"Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking : 'The judge was biased'."

Though the case of Metropolitan Properties primarily concerns one of the principles of natural justice, that is, the rule against bias, nevertheless the views and reasons expressed by the great English Court of Appeal judge apply with equal force in relation to the proposed Judicial Appointments Commission, especially with regard to the issue of conflict of interest.

I was of the initial impression that the proposed Judicial Appointments Commission was only concerned with the appointment of judges. However the delay in the setting up of the commission enabled me to study the proposal put up by the Malaysian Bar Council. It was only then I realised that the proposed commission, though named as a Judicial Appointments Commission, was intended not only to deal with the appointment of judges but also their promotion. That this is the role of the proposed commission has been confirmed by the comments of the president of the Malaysian Bar, the presidents of the respective Bar of Sabah and Sarawak and those personalities interviewed by the press ("Include lawyers in commission" -- NST, Oct 4).

Apparently, one of the reasons holding back the setting up of the commission, is the objection by the government to the inclusion of the respective heads of the Bar associations as members of the proposed commission. According to the current de facto law minister, such an inclusion will give rise to a situation of conflict of interest.

While the view of the minister may not be shared by certain quarters, I am inclined to say that it is not without legal basis.

Not only will the inclusion of the heads of the respective Bar associations give rise to a situation of conflict of interest but also for that matter the inclusion of any practising advocate and solicitor and the attorney-general or any of his senior officers from the chambers.

The idea for a Judicial Appointments Commission was thought of several years ago. However, the need was given greater urgency in the wake of the expose in the "Lingam Tape" inquiry. It was felt that in order to prevent the recurrence of such questionable and unsatisfactory process of appointment and promotion of judges, certain quarters suggested that the proposed commission should comprise members from various walks of life such as non-governmental organisations (NGOs), politicians, professionals other than lawyers and even the lay public.

The underlying reason appears to be that the inclusion of such persons, especially the "stakeholders" as members of the commission, with the power to determine as to who should be appointed and who should be promoted, will ensure transparency and fairness in the process of selection, appointment and promotion of judges, and consequently the restoration of the integrity and credibility of the judiciary.

In pursuit of their desire, they overlooked the fundamental reasons behind the introduction and development of universal principles, such as the principles of natural justice and other legal principles developed over the ages, which in their application sought primarily to safeguard the legal system, process and society against the imperfections and idiosyncrasies of those who sit in judgment over their fellow men.

The proposed commission comprised two parts. One deals with the appointment of judges, the other, their promotion.

Even if the proposed commission is only concerned with the process of appointment of judges, it is arguable whether politicians, members of the other professional bodies, NGOs or lay persons should be appointed to sit on the commission.

Will they be in a position to assess and evaluate the suitability of the prospective appointee? What criteria will they be applying in such assessment and evaluation? How does an accountant, engineer, a doctor, a member of the NGO for environmental protection, or a member of the organisation called Sisters-in-Islam, for example, assess and evaluate the suitability of the candidates?

No purpose is served unless those appointed to sit in the proposed commission are in a position to make a fair and independent assessment and evaluation.

However, the involvement of the heads of the respective Bar associations and the attorney-general in the appointment process are useful, since the Bar associations and the Attorney-General's Chambers may be privy to information pertaining to the professional standing, conduct, character, integrity and credibility of the appointee, if the appointee is someone from the Bar or the legal service.

In the past, before consultation with the Bar was discontinued, views of respected senior members of the Bar were sought before judges were appointed.

On the matter of the promotion of judges, I beg to disagree with the views of those who feel that the heads of the respective Bar associations and practising lawyers should be appointed to sit on the commission. Even the attorney-general or his officers should not sit in the commission. I say so for the following reasons.

Firstly, judges are only human, with inborn imperfections and idiosyncrasies. They can repeatedly shout from the highest of peaks in their loudest of voices, that when they preside over a trial, they will strive to be independent, unbiased, neutral and will judge each case fairly and justly, without fear or favour.

The test is not grounded in the loudness of their claims from the highest of peaks, but by the impression created in the minds of right-thinking members of the public, and to repeat the words of Lord Denning: "Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: 'The judge is biased'."

How does a judge presiding over a case, feel or react, when one of the counsel appearing before him is a member of the commission, who has a say in his promotion? Is the judge expected to be unconcerned and oblivious? Will he be careful not to upset or antagonise the said counsel? Will he treat the said counsel with more respect and indulgence as he would the other counsel? Will the actions of the judge, in the words of Lord Denning, cause reasonable people (members of the public present in court and the litigants) to think that he favoured one side unfairly? Will the losing party go away thinking that the judge is biased?

It was for the purpose of dispelling such perceptions and to prevent such situations that universal principles, such as the principles of natural justice and the principle regarding conflict of interest, were developed, which in their application were intended primarily to ensure as far as possible, that justice must not only be done, but must be seen to be done.

As for politicians, members of other professional bodies, NGOs and lay persons, I fail to see any meaningful role on their part in the promotion of judges.

Secondly, the promotion of judges should be left to those who are in the best position to assess and evaluate their performances. Those in such positions are none other than their superiors and perhaps retired judges.

Some, like the president of the Malaysian Bar, may argue that practising lawyers are in the best position to understand what is required and desired of a judge from the perspective of a practitioner. If reference to the "practitioner" means a "litigation lawyer", there may be some basis for making such a claim.

However, how often do these litigation lawyers appear before a particular judge to enable them to make a fair and accurate assessment and evaluation of the performance of the said judge in deciding whether to recommend, support or reject his promotion? What if the practising lawyer concerned had a few "unsuccessful" hearings or "unpleasant" encounters before with the particular judge? Who is to ensure that the said lawyer will not be affected by such unpleasant experiences when making his decision on the promotion of the particular judge? After all, like the judges, lawyers are also human.

It is not enough to state generally that practising lawyers would be in the best position to understand without defining the criteria to be applied in determining such promotion.

The promotion of judges is best left to the judiciary. This power cannot and should not be placed in the hands of "strangers" or "outsiders" who not only are in no position to make a fair assessment and evaluation but who may be accused of having a vested interest in the process, more so those who claim to be "stakeholders".

Speaking for myself, if I happen to be conducting a case where the opposing counsel is a member of the commission, I will have no hesitation in applying for the disqualification of the opposing counsel or the recusal of the learned judge.

The present system may have its weaknesses. However, in our pursuit of a judiciary that exudes integrity, credibility and confidence, any effort taken to improve the system must not lead to the devolution of those fundamental and universal legal principles that were evolved and developed over the years by brilliant legal minds endowed with vision and foresight, such as the late Lord Denning -- principles that are intended to ensure a legal system and process that is fair and just.