Chief Justice Arifin Zakaria's comments on the question of retired judges returning to the practice of law sweep past the essence of the rule of law and what the concept entails with respect to the behaviour of judges the way a six-lane bypass does a busy intersection.
The issue has arisen as a result of retired Federal Court judge Gopal Sri Ram's (right) prospective return to the courts where he may appear as counsel in election petitions filed by PAS in constituencies in Perak where the party lost narrowly in GE13.
On the face of it, Arifin's comments in support of the return to the practice of law by retired judges appear innocuous.
But on a second look, they hint at a cavalier attitude towards such ineluctable questions as the rule of law and the role of judges in upholding the edifice of the law.
His comments are the obverse of the lesson implicit in the episode of the applicant who wanted to join the navy. Asked if he could swim, he said, "I don't, but I know the theory."
Needless to say, the chap failed to get enlisted; his interviewers decided that his knowledge of swimming theory was no substitute for actual ability to swim.
Arifin holds that a judge's actual ability to establish "facts" and adjudicate the "merits" of a case is all that matters.
Sure, that process of determination must be connected to sundry jurisprudential theories but if these are attenuated from the vitally important one - that justice must not only be done but must be seen to be done - those theories are like sand castles on a beach.
How can justice be done and seen to be so if retiring judges award cases to counsel whose law firms they later join if only to return to the practice of a trade they have studied for and become adept at all of their adult lives?
How can justice be done and seen to be so if retiring judges award commercial disputes to corporations on whose boards they sit after retirement from the bench, as has happened in recent decades?
Role of retired judges
The top judge in the country has chosen to view the issue of retired judges returning to the practice of law in the context of an individual's freedom to do as he/she properly pleases and within the confines of the 'restriction of trade' imperative.
But those views scant the monastic ideal that judges must be otherworldly to be more judicial.
Under the concept of the rule of law, judges - sitting and retired - must stay above and beyond the fray to uphold the majesty of the law.
As former UN Special Rapporteur on the Independence of Judges and Lawyers Param Cumaraswamy (right) has argued, retired judges can put the accumulated store of their knowledge to use in mediation and arbitration disputes, but not as counsel in mundane cases.
In the latter instances, retired judges would be returning to an arena where a whole range of conflict of interest issues arise whose effect would be to detract from the majesty of the law with detrimental consequences to the concept of the rule of law.
In constitutional society, a judge derives his august standing from that concept. His adherence to a monastic ideal which mandates the practice of detachment is in service and support of that concept.
His otherworldliness is not of the sort that some religions require of its adherents - a temporary surcease to win merit; it's more like the permanent detachment that yet other religious orders mandate in its votaries.
The paramount objective of the practice of this detachment is freedom from conflict of interest situations, something retired judges-cum-revenant lawyers would be prone to and cannot avoid.
Conflict of interest
In a sense, Arifin cannot be faulted too much for his seeming amnesia about the conflict of interest issues ineluctably tied up with the question of whether retired judges ought to return to the practice of law.
A predecessor of his by several removes, Abdul Hamid Omar, topped the bill in amnesia about conflict of interest when, in 1988, he headed a tribunal convened to impeach then Lord President Salleh Abas (left) whose position Hamid was in line to assume once Salleh was impeached, which turned out to be the case.
The late Hamid pleaded that he was chosen by the king to head the tribunal, conveniently forgetting that ours is a constitutional - not absolute - monarchy.
That tawdry bit of rationalisation, offered in extenuation of the larger monstrosity of impeachment, had conduced to the moral climate of which the return of judges to the practice of law is only the latest symptom of malaise.
What was it that Dr Samuel Johnson, author of that immortal aphorism about patriotism being the last refuge of scoundrels, said about negligence - that we are in greater danger from it than from our ignorance.
The issue has arisen as a result of retired Federal Court judge Gopal Sri Ram's (right) prospective return to the courts where he may appear as counsel in election petitions filed by PAS in constituencies in Perak where the party lost narrowly in GE13.On the face of it, Arifin's comments in support of the return to the practice of law by retired judges appear innocuous.
But on a second look, they hint at a cavalier attitude towards such ineluctable questions as the rule of law and the role of judges in upholding the edifice of the law.
His comments are the obverse of the lesson implicit in the episode of the applicant who wanted to join the navy. Asked if he could swim, he said, "I don't, but I know the theory."
Needless to say, the chap failed to get enlisted; his interviewers decided that his knowledge of swimming theory was no substitute for actual ability to swim.
Arifin holds that a judge's actual ability to establish "facts" and adjudicate the "merits" of a case is all that matters.
Sure, that process of determination must be connected to sundry jurisprudential theories but if these are attenuated from the vitally important one - that justice must not only be done but must be seen to be done - those theories are like sand castles on a beach.
How can justice be done and seen to be so if retiring judges award cases to counsel whose law firms they later join if only to return to the practice of a trade they have studied for and become adept at all of their adult lives?
How can justice be done and seen to be so if retiring judges award commercial disputes to corporations on whose boards they sit after retirement from the bench, as has happened in recent decades?
Role of retired judges
The top judge in the country has chosen to view the issue of retired judges returning to the practice of law in the context of an individual's freedom to do as he/she properly pleases and within the confines of the 'restriction of trade' imperative.
But those views scant the monastic ideal that judges must be otherworldly to be more judicial.
Under the concept of the rule of law, judges - sitting and retired - must stay above and beyond the fray to uphold the majesty of the law.
As former UN Special Rapporteur on the Independence of Judges and Lawyers Param Cumaraswamy (right) has argued, retired judges can put the accumulated store of their knowledge to use in mediation and arbitration disputes, but not as counsel in mundane cases.In the latter instances, retired judges would be returning to an arena where a whole range of conflict of interest issues arise whose effect would be to detract from the majesty of the law with detrimental consequences to the concept of the rule of law.
In constitutional society, a judge derives his august standing from that concept. His adherence to a monastic ideal which mandates the practice of detachment is in service and support of that concept.
His otherworldliness is not of the sort that some religions require of its adherents - a temporary surcease to win merit; it's more like the permanent detachment that yet other religious orders mandate in its votaries.
The paramount objective of the practice of this detachment is freedom from conflict of interest situations, something retired judges-cum-revenant lawyers would be prone to and cannot avoid.
Conflict of interest
In a sense, Arifin cannot be faulted too much for his seeming amnesia about the conflict of interest issues ineluctably tied up with the question of whether retired judges ought to return to the practice of law.
A predecessor of his by several removes, Abdul Hamid Omar, topped the bill in amnesia about conflict of interest when, in 1988, he headed a tribunal convened to impeach then Lord President Salleh Abas (left) whose position Hamid was in line to assume once Salleh was impeached, which turned out to be the case.The late Hamid pleaded that he was chosen by the king to head the tribunal, conveniently forgetting that ours is a constitutional - not absolute - monarchy.
That tawdry bit of rationalisation, offered in extenuation of the larger monstrosity of impeachment, had conduced to the moral climate of which the return of judges to the practice of law is only the latest symptom of malaise.
What was it that Dr Samuel Johnson, author of that immortal aphorism about patriotism being the last refuge of scoundrels, said about negligence - that we are in greater danger from it than from our ignorance.
TERENCE NETTO has been a journalist for four decades. He likes the occupation because it puts him in contact with the eminent without being under the necessity to admire them.
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