When the matter came for its first day of hearing at the Federal Court yesterday (October 28, 2014), it is interesting to note the full list of counsels appearing for Datuk Sri Anwar Ibrahim for his final appeal against the Court of Appeal’s sodomy conviction. Leading the long list of 14 lawyers was former judge of the Federal Court, Datuk Seri Gopal Sri Ram.
While as of to date there is no specific law that bars former judges from appearing in Court, the Malaysian Bar had however just seven months ago in its 68th Annual General Meeting held on March 15, 2014, passed a resolution calling for the prohibition of retired judges of superior courts from appearing as counsels. In the said motion that was passed by majority vote, it was made clear that one of the fundamental principles of the Malaysian legal system is that not only must justice be done, it must also be seen to be done, and thus appearances matter.
In this regard, it was agreed upon based on the said resolution, “that it is a principle of antiquity in common law jurisdiction that a retired judge of a superior court should not practice as counsel before the judges who were previously his colleagues or his juniors to him on the Bench”, since “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.”
Thus it is indeed a cause for concern when Sri Ram appeared as counsel before the panel judges of the Federal Court, who were clearly his former peers and juniors on the Bench. This is a clear breach of the long held tradition and convention that has been observed and honoured by members of the legal fraternity until recent years. As stated clearly and unequivocally in the said resolution, this may not only affect the public perception of the administration of justice in Malaysia, but also cause conflict when the retired judge/counsel relies on or distinguishes decisions made by him while he was on the Bench; and worse still situations may arise where such retired judges invoke the principle of stare decisis to submit that the Court is bound by grounds of judgment of his handed down when he was a judge.
Adding salt to injury is the fact that as at the time of writing, the Bar Council has yet to make a stand on the issue. This failure to issue a statement against Sri Ram’s appearance as counsel yesterday and to act swiftly is indeed deafening, and nothing short of dumbfounding, considering that the Bar has, based on its previous undertakings, prided themselves for ostensibly being protectors of justice without fear or favour, and are always on their toes to bark against any such infringements, especially against certain parties.
That is not to mention that the Council’s silence on the issue is also a clear non-compliance of the Malaysian Bar’s resolution resolving that the Bar Council shall take all reasonable steps to educate the public on the reasons why it took such stance against retired judges. It is indeed cause for concern as the failure of the Bar shows how selective and biased they are in upholding justice, and raises pertinent questions as to whether the whole Bar must now be reformed.
It is also noteworthy that a news portal had even reported that Anwar has said that it was Sri Ram who approached Anwar instead of the other way around, which, if such were true, might be further cause for investigation for an infringement of the non-touting rule under Rule 51 of the Legal Profession (Practice and Etiquette) Rules 1978.
*Lukman Sheriff Alias is a lawyer practising in Kuala Lumpur, while Aidil Khalid and Faidhur Rahman Abdul Hadi are lawyers practising in Kota Damansara, Selangor, and Hartamas Heights, Kuala Lumpur, respectively and are activists for Concerned Lawyers for Justice (CLJ).
*First published in The Malaysian Insider, 29th October 2014