Param Cumaraswamy, the former UN Special Rapporteur on the Independence of Judges and Lawyers, has expressed concerned over the judiciary's position on retired judges appearing in court as lawyers.

 

scah ipcmc talk 181207 param cumaraswamy In a press release today, Param explained that a retired Court of Appeal judge appears before the High Court or a lower court, it might have an intimidating effect on the bench.

 

"His submissions could include judgments decided by him in the Appellate Court with his brother/sister judges. It is open to him, if those very judgments are not in favour to the case of his client, to argue that those judgments were wrongly decided.

 

"Then there are situations when a decision given in the appellate court by him may not have been followed by written published grounds. It is open for him , the retired  judge, to cite such decisions and post rationalise before the court to suit the needs of his client," argued Param.

 

Param also warned that opposing lawyers might try to recuse judges who sat alongside the former judges and that such a situation would cause embarrassment and disrepute to the judicial system.

He said that senior judges in Malaysia should emulate their Australian and British counterpart by restricting themselves to mediation and arbitration appointments.

 

NONE He urged Chief Justice Arrifin Zakaria ( left ) and the Bar Council to deliberate on this issue carefully and formulate a policy to discourage retired judges, particularly former Court of Appeal judges, from appearing as counsel in Malaysian courts.

 

Param was commenting on Arrifin's position that former judges have the right to become lawyers if they want to, citing how former Lord President Salleh Abbas had done so.

 

"It does not matter as the court will decide the case on merits and facts. It does not matter who appears before us. It is the same," he said when approached by reporters yesterday.

 

The chief justice was quizzed on this because former Court of Appeal judge Gopal Sri Ram is representing Pakatan Rakyat in several election petitions filed in Perak.