Bar Council 'AMUSED' by ruckus kicked up over Anwar's choice of retired judge as defence counsel

The Malaysian Bar read with interest and quiet amusement some of the recent comments made regarding the position of the Malaysian Bar with respect to retired judges appearing in court as counsel. The stance of the Malaysian Bar on this issue is as stated in the resolution passed at our Annual General Meeting held on 15 March 2014. The resolution, which is reproduced below, is clear and speaks for itself.

Notwithstanding the concerns of the Malaysian Bar on this issue, which were articulated in court, the Federal Court has ruled that there is nothing presently in law that prohibits a retired judge from appearing as counsel in court.

The Malaysian Bar also notes the recent issues or controversies involving the propriety or otherwise of the appointment and appearance of the lead prosecutor in the Dato’ Seri Anwar Ibrahim appeal. Again, the Federal Court has decided that there is nothing improper in this regard.

Dato’ Seri Anwar Ibrahim

Although for different reasons, a common issue and concern of the Malaysian Bar relating to both the appointments and appearances of the lead prosecutor for the Respondent and the lead counsel (a retired judge) for the Appellant in the said appeal is that justice might not be done, or might not be perceived to be done.

Apart from the above, the Malaysian Bar will make no further comment whilst the hearing of the appeal is ongoing in the Federal Court.

Christopher Leong is President of Malaysian Bar

68th Annual General Meeting of the Malaysian Bar

Renaissance Kuala Lumpur Hotel

Saturday, 15 March 2014

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 practice 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.