In reference to the alleged impropriety of Mohamed Dzaiddin's acceptance of the consultancy position from a legal firm, Bar Council chairperson Kuthubul Zaman Bukhari told malaysiakini , that at this moment "there were only allegations, there being no facts as yet to substantiate the allegations that Mohamed Dzaiddin had delivered a judgment in favour of Skrine & Co two days prior to his retirement".

The important thing is to establish whether the allegations were true. It is all there is. The allegations may be checked for their veracity or falsity against the court's record of decisions delivered around that time.

A conflict of interest arises only if it could be shown that the legal firm employing him as consultant actually received a favourable judgment in which he presided two days before he clocked out for good on March 15.

The issue is not whether Dzaiddin was actually compromised in independence and impartiality in respect of the judgment in question by inducement of the job offer. He might well not be.

He must however not be 'seen' to be in a position where an improper inducement might be deduced as possible, given the character of human nature to reciprocate gratitude. Knowing that he might take up employment from the legal firm after retirement, he should have abstained from sitting in judgment of the case, as a director would abstain from voting on a transaction that he has personal interest.

The question of whether the offer and its acceptance of the appointment were made before or after the favourable judgment and retirement would not matter since it is difficult to prove either way.

For even if the offer and his acceptance of it were documented in writing on a date much later than the dates of judgment or retirement, it would not preclude the possibility of oral negotiations and understanding concluded on dates earlier.

What matters is the period of time between the delivery of judgment and the time the legal firm advertised his appointment in a daily English tabloid.

If that period is short and I would say that one to three months would be close enough - it would be considered as sufficiently contemporaneous for the nexus between an earlier favourable judgment and a subsequent appointment to be inferred.

If so, his acceptance of the consultancy position not only raises conflict of interest issues but it will also cast a shadow of doubt over the 'favourable judgment' delivered. It opens up the question whether such a decision should be allowed to stand in law when it was made in circumstances where impartiality may be questioned by the party that lost the case.

Such a judicial decision is impugned not because of actual bias, but the possibility of bias inherent in its making.

Taking the wider issue of whether a judge should be prevented for a certain period of time - say, two years - after retirement from practising law at the Bar, as a general rule, I don't think that he should be so barred.

The main area of concern is not that a judge joins a law firm upon retirement. It is not even the proximity in time of such an employment to his retirement per se.

For conflict of interest to arise, there must exist an 'additional element' - in the present case it is the favourable decision he allegedly delivered to the firm soon employing him, so much so that there is reasonable ground to be concerned that the commercial offer might have influenced, consciously or subconsciously, the impartiality of his discharge of judicial function prior to retirement.

In the absence of such 'additional element', there is nothing wrong in a judge's joining any law firm straightaway after retirement because he has, after all, to make a living in a profession he knows best. We cannot be seen to reward the culmination of a distinguished judicial career and public service by imposing a moratorium on a judge's career in the craft he knows best.

Such a code of ethic, if imposed, may achieve the opposite effect of inducing judges to make hay while the sun shines that is, to take bribes from litigants whilst in office to cover the retirement nest in the two years when they are out.

Again, if there is no general rule to say that a judge should not be drawn from ranks of lawyers practising two years immediately preceding his appointment as judge, there should be no general rule stopping him from practising two years immediately after retirement.

If at all there is a fear that a retired judge may, if allowed to immediately practise law, have an unfair advantage over the other side when arguing a case before a panel of grateful and friendly judges earlier appointed by him whilst he was chief justice, then by all means, there should be a rule prohibiting him from arguing any case before such a panel of judges so appointed.

There is no sense in barring him generally from consultancy work when the nature of such work is advisory or bearing on non-contentious commercial, corporate, conveyance or other areas of legal work not involving court litigation.

The suggested 'cooling-off period' of two years is arbitrary (what's the difference between two from one or three?) and should not be used as benchmark.

Does it mean that if he were precluded from working for any law firm for two years, he cannot be so induced to give a favourable decision to a particular law firm that promises him employment immediately after the two year moratorium expires or, for that matter, other forms of inducement other than the job offer? I should think not.

In the absence of a cogent reason, and the existence of that 'additional element' from which one could infer a conflict of interest, this blanket ban of two years on retired judges from practising law will only boomerang on the image of the Bar.

It will be inferred against the Bar that the real reason for advocating such a code of judicial conduct is not because of conflict of interest and judicial integrity.

It is because its members, the lawyers, are jealous that a particular legal firm was able to recruit a distinguished ex-judge in its employ and gain unfair advantage over the rest in relation to market's perception of the latter's experience and capability.

The real grouse here is that of unfair level playing field in the canvassing of legal business from the market that is euphemistically camouflaged under the pretext of upholding judicial independence and avoiding conflict of interest.

In such a case it is the Bar that will appear petty and small in preventing a judge from making a living for a period of time immediately after retirement just so that he and the firm in which he is employed will not have greater competitive edge over the rest in the marketplace.