A five-member bench of the Federal Court will decide on Wednesday if High Court judge Augustine Paul had acted in bias in dismissing habeas corpus applications of five Keadilan and reformasi activists.

The bench headed by Chief Justice Mohamed Dzaiddin Abdullah said this today after hearing submissions from defence counsel Malik Imtiaz Sarwar and senior deputy public prosecutor Azahar Mohamed.

Malik contended that the impartiality of justice Paul was called into question as he had also presided over former deputy premier Anwar Ibrahim's corruption case where his verdict on Sept 14 1999 had created the infamous Black 14 reformasi movement.

"In this regard, a fair minded lay observer might reasonably apprehend that the judge might not be impartial on the issue the judge was required to decide and as such, justice might be seen to be done. In any event there was a real danger of apparent bias," Malik said.

The Federal court is hearing the appeal of Keadilan vice president Chua Tian Chang (Tian Chua), party youth chief Mohamad Ezam Mohd Nor, malaysiakini columnist-cum-film maker Hishamuddin Rais , FreeAnwar.com webmaster Raja Petra Kamaruddin and reformasi activist Saari Sungib against Paul's dismissal of their habeas corpus hearing on April 25.

'Militant attempt'

In April the five were detained under the Internal Security Act (ISA) for alleged involvement in a 'militant attempt to over throw the government'.

While four have been sent to the Kamunting Detention Centre for a two-year detention period, Raja Petra was released unconditionally.

"There was a clear association between the judge and Black 14 in that the judge had delivered the judgement which became the foundation for Black 14.

"The courts must act impartially and must also be seen to act impartially. This is fundamental to the adversarial system and is essential for the maintenance of public confidence in the judiciary," Malik said.

He also called on the Federal Court to re-hear the matter as it had jurisdiction to do so.

Senior deputy public prosecutor Azahar, on the other hand, stated that chaos would reign if judges were forced to disqualify themselves on every 'flimsy excuse'.

"It is grossly inadequate and manifestly unsafe on any jurisprudential thinking to allow such suggestions (of bias) and think there is necessarily proven apparent bias by merely tendering some lame and loose associations of fact.

"Otherwise, there will be chaos and obvious 'judge shopping', with judges being asked or disqualifying themselves on the flimsiest excuses," Azahar said.

'Not quite proper'

He also added that the notion of judicial bias cannot be allowed as it would undermine the judicial system in the country.

"To do so would be to undermine the system and suggest in minds of all that there is something not quite proper with this judicial system and its judges.

"Judges are assumed to be people of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances. He is sworn to administer impartial justice," Azahar.

Azahar is assisted by Mohd Yusof Zainal Abideen, Mary Lim Thian Suan and Abdul Majid Tun Hamzah.

The defence is also represented by Sulaiman Abdullah, Christopher Leong, R Sivarasa and M Moganambal.

The other judges presiding over the appeal are Chief Judge of the High Courts of Malaya, Wan Adnan Wan Ismail, Chief Judge of the High Courts of Sabah and Sarawak Steve Shim Lip Kiong, Federal Court judges Abdul Malek Ahmad and Siti Norma Yaakob.