By virtue of being a former/retired FEDERAL COURT JUDGE, Apandi Ali should not appear personally in any court case as lawyer/public prosecutor...It really is a question of ethics and/or principles - not so much of being the law in Malaysia?
Well, in Malaysia, this issue of what a retiring senior Judge do or do not do arised when one of Malaysia's senior judge on retirement allegedly almost immediately joined a law firm... the thinking then was that retiring judges should really have a 'cooling off period', maybe of at least a certain number of years - it was suggested that it should be at least 3...The matter was discussed by the Malaysian Bar, and was even tabled as a motion during the Bar AGM...
As time past, the position changed - suggesting that former senior judges really should never really return to the courts to fight battles as lawyers before other judges...
The resolution adopted by the Malaysian Bar at its AGM in 2014 may give you some idea of some of the reasons why former senior judge like AG Apandi Ali really should not be appearing and fighting in court...
There was no problem for the previous Attorney General Ghani Patail appearing personally to prosecute in court because he was not a former senior Judge - but Apandi Ali is a former Federal Court judge...
# There may be other arguments as to why the Attorney General should not...but we will not discuss that here.
Resolution regarding retired judges of the superior courts appearing as counsel in court(A) WHEREAS it is a fundamental principle of the Malaysian legal system that not only must justice be done, it must be seen to be done; thus perceptions and appearances matter.(B) WHEREAS it is a principle of antiquity in common law jurisdictions that a retired judge of a superior court should not practise as counsel before the judges who were previously his colleagues or his junior to him on the Bench.(C) WHEREAS that tradition and convention was likewise observed in Malaysia for decades, until in recent years.(D) WHEREAS retired judges now frequently appear as counsel, not only in the superior courts, but also in the subordinate courts and even to argue chamber applications.(E) WHEREAS such conduct may involve the retired judge/counsel purporting to rely upon, distinguishing or criticising decisions made by him while he was on the Bench; worse, there could arise a situation of such a retired judge invoking the principle of stare decisis to submit that the Court is bound by some decision of his handed down when he was a judge.(F) WHEREAS such conduct may have the effect of intimidating the Bench and worse, it could give the perception that the said retired judge/counsel and his client have an advantage over other counsel and adverse parties.(G) WHEREAS such conduct may adversely affect public perception as to the administration of justice.(H) WHEREAS the co-proposer of this motion, Tan Sri V C George and five other retired Judges of the superior courts have written a letter to the President of the Malaysian Bar dated 2 March 2014, expressing their view, concern and objection with the practice of some retired Judges of the superior courts appearing as counsel in Court.(I) In the context, retired Judges of the superior court having failed to honour tradition and convention by appearing as counsel, they must now be prohibited or restricted by law from continuing with such unacceptable conduct.The Malaysian Bar therefore resolves:(1) That a retired judge of the superior courts should be prohibited or restricted by law from appearing as counsel in court, and to achieve that objective calls on the incoming Bar Council to propose an amendment of the Legal Profession Act 1976 to the Attorney General for urgent presentation to Parliament; and(2) The Bar Council takes all reasonable steps to educate the public on the reasons for the proposed amendment to the law. - Malaysian Bar Website
Below, an article from the Star, which is also relevant
| Ex-judges must remain ethical |
| Monday, 29 July 2013 08:13am | |||||||||||
| ©The Star (Used by permission) LEGALLY SPEAKING BY ROGER TAN
Who a former judge later associates with and what he subsequently does or says will still be closely scrutinised by the public.
THE
morning after I retired, a Rolls Royce arrived at my house with a
message that I was required to attend a very important board meeting.
Without further ceremony, I was taken to the penthouse of the Chartered
Bank. Here, I was appointed chairman and required to call the meeting to
order.
“There
were only three items on the agenda. Caviar, champagne and any other
matters arising therefrom. At noon, we adjourned to a private room in
the Shangri-La for a sumptuous lunch. When I was driven back home at
3pm, I greatly regretted I had not retired years earlier!”
Those
were the bantering words of one of Malaysia’s most celebrated judges,
Tun Mohamed Suffian, at a dinner given in his honour shortly after his
retirement as Lord President on Nov 12, 1982. At first glance, these may
well be facetious remarks, but it does go to show that a retired judge
can be commercially marketable and become an asset for any organisation
to be associated with.
Needless
to say, who an ex-judge later associates with and what subsequently he
does or says will still be closely scrutinised by the public. His
judicial conduct during his pre-retirement or resignation days may even
be called into question if he later exhibits strong inclinations or
preferences whether politically, socially or morally.
However,
currently, the Judges’ Code of Ethics 2009, made pursuant to Article
125(3B) of the Federal Constitution, does not deal with the conduct of
judges after their retirement or resignation. Hence, an ex-judge will
have to be guided by his own conscience when he embarks on any
post-retirement activities. Most of them will become an arbitrator or
join a legal firm as its consultant or a statutory body as its chairman.
To date, only three are said to have returned to the court as counsel –
Tun Mohamed Salleh Abas, Datuk Kamalanathan Ratnam (better known as
R.K. Nathan) and Datuk Gopal Sri Ram.
For
Abas, with respect, he had not been winning many cases. Neither, in my
view, had he been treated with the respect he should deserve by some
members of the Bench. I must say I felt rather sorry for him. But apart
from being a consultant of a legal firm, he also went on to become an
elected state assemblyman for PAS and a state executive councillor of
Terengganu.
For Ratnam, he created controversy in the case of Perbadanan Pembangunan Pulau Pinang v Tropiland Sdn Bhd
(2009) when he attempted to act as a counsel for the defendants in two
consolidated suits over matters which he had previously presided for no
less than 13 times when he was a High Court judge in Penang. It was
argued, inter alia, that his appearance would “be beneficial to
the legal fraternity considering his past experience and expertise”. The
court would have nothing of this and disqualified him as counsel.
For
Ram, he had a great maiden appearance as a “judge counsel” before a
five-bench Federal Court on July 18. It was also reported that after the
hearing ended, lawyers and chambering students were seen taking
photographs with him.
To
the Bar Council, it now appears that it is dead set against any
ex-judge of the superior courts (High Court, Court of Appeal and the
Federal Court) appearing in court as counsel. Of course, one would
wonder why only now the Bar had expressed its disapproval. But certainly
if this is wrong, then two wrongs cannot make a right.
Chief
Justice Tun Arifin Zakaria even weighed in to give his approval, adding
that advantages would outweigh disadvantages as the judge counsel could
share his experience with the Bench but the Bench would still decide
each case based on its merits.
Writing for the Malaysian Judiciary Yearbook 2011,
former Court of Appeal judge Tan Sri V. C. George (who, together with
former Chief Justice Tun Mohamed Dzaiddin Abdullah, are now consultants
to the same legal firm) argued in his article, “Appearance in Court by Retired Judges of the Superior Courts”, that it is timely that all stakeholders should meet and form a consensus on the ethical principles of such a practice.
I
could not agree more with him as this has now become a cause celebre
especially in Malaysia when there is no statutory prohibition against
this. It is, therefore, germane to look at how other Commonwealth
jurisdictions deal with it.
In
England, when former Lord Chancellor and Secretary of State for
Constitutional Affairs Lord Falconer first informed the judiciary headed
by Lord Chief Justice Lord Phillips in October 2005 that the British
government had decided that judges below High Court level should be able
to return to practice, the Judges’ Council immediately set up a working
party to study the issue and formulate a response.
In
January 2006, the group came to a unanimous conclusion that the current
convention against retired judges returning to legal practice should be
adhered to by all members of all levels of the judiciary.
It
added that it was not persuaded that adequate safeguards or conditions
could be put in place which would overcome the objections of principle
to departing from this established convention.
Recognising
that there would be a danger of pomposity and excessive
self-importance, the group concluded that the major objection to
removing this prohibition is that “if return to practice became the norm
or even something which was overtly permitted or encouraged, it would
inevitably diminish the standing of the judiciary and seriously weaken
its independence”.
In November 2007, Falconer’s successor, Jack Straw, announced that this convention would stay.
In
fact, Lord Dilhorne once said: “... It should be clear, surely, to
everyone at the Bar that if one accepts a judicial appointment, there
are obligations attached to it that one cannot return to the Bar and
practise as a barrister and that, having embarked on a judicial career
one is under a moral obligation to do the job and not give it up in
favour of one that appears more attractive.”
Similarly,
the great Lord Denning was in favour of the convention, arguing that if
allowed, the sitting judge would have his eye too much on what he was
going to do when he retired. Perhaps, it is best summed up by Lord
Bingham in his lecture and essay, “Judicial Ethics”: “... On
becoming a judge, a practitioner ceases to be a barrister or a solicitor
(whether he remains on the roll or not) and becomes solely a judge,
with the result that on retirement he lacks any qualification to
practise. I would for my part be very sorry to see that rule eroded.”
In Australia, this issue was extensively discussed by Justice J.B. Thomas in his book, Judicial Ethics in Australia,
with particular reference to what the late Dame Roma Mitchell, a
distinguished judge who later became Governor of South Australia, said
that “acceptance of a judicial appointment should have, as a corollary
the final farewell to the Bar”.
Even
though some law bodies in the states of Australia impose a cooling off
period for a retired judge to return to practice, there are state laws
which provide that a retired judge will lose his judicial pension if he
returns to practice, such as Section 83(4)(ii) of Constitution Act 1975
of Victoria and Section 15(1) of Judges’ Salaries and Pensions Act 1950
of Western Australia. In India, Articles 124(7) and 220 of the Indian
Constitution disallow and impose restrictions on ex-judges pleading or
acting in any court or before any authority.
All
said, the jurisdiction most relevant to us would be Singapore. Under
Section 26(2) of its Legal Profession Act (Chapter 161), an ex-judge or
judicial commissioner of the High Court or Court of Appeal of Singapore
who has held office for a period of three years or more will only be
allowed to practise as a solicitor but not an advocate or counsel.
However, it is interesting to see that Section 26(1)(d) totally
proscribes any ex-judge who has served for three years or more as a
judge or judicial commissioner of the Supreme Court and High Court of
Malaysia to practise as an advocate and solicitor in Singapore. Even
though this section requires an amendment to state correctly the names
of our superior courts, what is clearly intended is to bar all our
ex-judges of at least three years’ standing to practise in Singapore.
In
other words, ex-judges of Malaysia including Abas, Ratnam and Ram are
barred from practice in Singapore but not in Malaysia because there is
no similar prohibition expressed in Section 30 of our Legal Profession
Act, 1976 (LPA)! Further, the aforesaid Section 26 has not been declared
to be contrary to Article 9(1) of Singapore Constitution which is
identical to Article 5(1) of our Federal Constitution. This means an
ex-judge’s right to livelihood has not been deprived by this statutory
restriction, and I agree this is rightly so because he can still
practise as a solicitor. A person’s life and liberty would be best
protected if we have an independent judiciary.
It
follows a judge’s duty to uphold and protect the independence and
integrity of the judiciary does not cease upon his retirement or
resignation. He and his clients will be perceived to have an unfair
advantage if he is allowed to appear as a counsel. Surely, we cannot
allow a retired senior judge appearing before a magistrate to ask the
latter to follow the former’s decision made when he was a judge of a
higher or the highest court! But it is not objectionable if he
undertakes national service by arguing as counsel for the country before
international courts and tribunals.
In
fact, because a judicial appointment is always regarded as a farewell
to the Bar, many senior lawyers including yours truly have refrained
from applying to join the judicial service. This is an unwritten
convention. Now that it has been shown that our ex-judges, unlike
British judges, cannot be relied upon to observe this convention, the
Bar must now initiate an amendment to Section 30 of our LPA. Without
this, the perception of a possible bias can be a constant threat to the
administration of justice in Malaysia.
The writer, called to the Malaysian and Singaporean Bars, is a former member of the Malaysian Bar Council.
Below is something I wrote in 2007, which deals also with post-retirement conduct of judges..
| |||||||||||
Malaysia under the premiership of Abdullah Ahmad Badawi is,
unfortunately, still pre-occupied with having the tallest and biggest structures
and buildings in the world in Malaysia. Soon, we will have what is proclaimed to
be the biggest court complex in the world. 
Posts
No comments:
Post a Comment