PETALING JAYA: Judges should not hold positions in the public or private sector immediately after retirement to remove any doubt over their independence while on the bench, former United Nations special rapporteur on the independence of judges and lawyers Param Cumaraswamy says.
He said there should be a cooling off period, like three years after retirement, before they are appointed to hold positions.
Param said it remained an attraction for ex-judges to be appointed in government-linked companies but that those seen as independent while in office could lose this opportunity.
“I strongly feel that retired judges should not be appointed as even those who are known to be independent will bend a little towards the government,” Param told FMT in an interview.
He said in Malaysia this was the norm, especially over the last 20 to 30 years.
In Taiwan, he added, ex-judges did not seek employment after retirement because the pension was good enough to sustain them.
He also said retired judges should be prohibited from entering legal practice and representing clients in courts because they were drawing a pension.
“It is convention in several Commonwealth countries like the UK, Singapore and Australia that retired judges do not practise law and represent clients in courts.”
Param, who was named this year’s recipient of the Malaysian Bar Lifetime Achievement Award, said it was embarrassing for former judges to appear in court and cite case laws of their own previous judgments.
“It will also be intimidating if retired judges appear before junior judicial officers,” he added.
Param said clients would also be tempted to engage ex-judges in the belief that they could influence the presiding judge or members of the bench due to their past association with them.
In Sri Lanka, he said, it was in the constitution that retired judges could not appear in court without the permission of the president of the country.
“In fact, I have raised this issue before former chief justice Arifin Zakaria but he noted that amendments to the Legal Profession Act (LPA) should be made to stop this practice.
“The Federal Court has ruled that nothing stops retired judges from coming to court as the LPA was silent on the matter.
“To my mind, it may be legal but it is definitely unethical,” Param added.
Among the ex-judges who returned to practice were former lord president Salleh Abas, retired Federal Court judge Gopal Sri Ram and ex-High Court judge R K Nathan.
Similarly, Param said judges should not join private law firms as legal consultants immediately after retirement as this was an advertising of sorts.