Bar: Don’t allow retired judges to appear in court as counsel

(The Sun Daily) – The Bar Council feels that judicial procedures should be amended to prohibit retired judges from appearing as counsel in court as the “the improper practice” could lead to embarrassing situations.

It also posed the question of whether they could have an undue advantage when appearing before judges who were once their subordinates.

Council president Christopher Leong suggested that they become consultants who could advise counsel appearing in court.

He said it was also against judicial convention for retired judges to appear subsequently as counsel in court although this was not part of the judges’ code of ethics.

He said the council has been calling for this unwritten practice to be part of the code for some time, but that the judiciary had not taken up the matter.

“The Bar Council has been calling for this convention to be expressly provided for in the code of ethics. Some retired judges do comply with the convention, but some judges have not only reappeared in court, but have cited cases they had decided on,” he told theSun.

The question of judges appearing as counsel emerged with a June 13 report in a news portal stating that retired Federal Court judge Datuk Gopal Sri Ram would be representing Pakatan Rakyat in court for some of the coalition’s election petitions for Perak-based seats.

Legal circles have also been talking of the possible return of High Court judge Datuk V. T. Singham to the Bar following his early retirement last Wednesday.

Besides Gopal, other retired judges practising as counsel include former lord president Tun Salleh Abas and former High Court judge, Datuk R.K. Nathan.

Leong said in England, judges strictly follow the convention prohibiting judges from appearing in court after retiring from the bench.

“This is because it may give the impression that the retired judge may have an advantage in court and secondly, it would embarrass the judge before whom the retired judge appears and it would also embarrass the retired judge’s opponent,” he said.

Asked why he thought this would embarrass the presiding judge, Leong said one reason is that the sitting judge hearing the case may be junior to the retiree now appearing before him or her.

“The retired judge may have pronounced on a point of law as a judge, and the sitting judge now may find themselves disagreeing with this point of law,” he said.

Asked why it could embarrass opposing counsel, Leong cited the example of a retired judge using his own decisions as legal authorities which may be awkward for opposing counsel.

On the possibility of a cooling-off period for judges seeking to be advocates in court, he said that this should not be considered at all as “my view is that all judges should not appear in court as counsel.

To a question on why he was agreeable to retired judges becoming consultants, he said they have a wealth of experience and should be allowed to still contribute to the law.

“The Bar Council welcomes retired judges becoming consultants in legal firms,” he said.

Similar views were shared by Malaysian Centre for Constitutionalism and Human Rights coordinator Edmund Bon, who said that once a lawyer accepts an appointment as a judge, he will have to accept that his career as a lawyer is over.

“You can still be a consultant but you should not appear in court. You don’t want to be seen as using your time and experience at the bench over judges who are more junior than you. It is a perceived conflict situation,” he said.

On the possibility of regulations prohibiting retired judges from appearing as counsel, Bon concurred with Leong that the Bar Council make it part of its ethical rule of practice for retired judges to refrain from practising.

He said that if they want to, they should allow a cooling-off period of five to 10 years which may mean that judges could only practise at 71 or older.

“If you make it a strict law, there might be arguments that it is unconstitutional as a restriction of livelihood as per Article 5 of the Federal Constitution,” said Bon.