When I studied law and started my legal practice in Malaysia, I thought being appointed a judge would be the crowning glory of my career. And by judge, I am not talking about magistrates, sessions court or syariah court judges; I mean a superior court judge, a High Court, Court of Appeal or Federal Court judge.

Back then, I imagined patiently working my way through the litigation ranks from pupil to lawyer to able lawyer to senior and experienced one, recognised for integrity, intelligence, industry, independence and intrepidity. The judiciary would eventually recognise and acknowledge my qualities with an invitation to the bench.

I would write judgments that were read not just for their ratio decidendi (the rationale of the decision) but for literary merit, too, because I would write witty, pithy and yet incisive judgments laced with profound insights into the Malaysian politico-legal milieu or compulsive legal thrillers that had you at the edge of your seat as to how the decision would go until the very last line.

I would break new legal ground not just in substance but in form. I would pioneer picture judgment, a judgment without words composed entirely of a deft, meaningful sequential arrangement of pictures. With my infamous controversial mime judgment, I would put Malaysian on the map, delivering my grounds of decision using gesture, expression, and movement in a skintight black velvet bodysuit with a little skull motif in the inner lining of the cape.

My justice-infused phrases would smear the general national consciousness through memes, t-shirts, windshield stickers, lesser-known legal journals and mugs with metal caps. My judgments would be vigorously discussed and settled through fistfights in coffee shops, outside massage parlours and private urinals nationwide.

Like Denning, I, too, would pontificate about the law in my books despite my backlog of written grounds and colleagues looking at me askance. And maybe, a massive maybe, if the geo-political, domestic political, cultural, societal, legal, and royal factors coincidentally coalesced and collided with a miracle, I might even ascend from the far reaches of the Tawau High Court, my first posting and after occupying it for the majority of my career, to the very top. I would hope for a tenure of at least 93 days to avoid the dubious honour of being the shortest-serving Chief Justice.

The short and simple truth is that I thought being a judge was the thing back then. I considered judgeship the highest privilege and honour one could achieve in legal practice.

The traditional idea that a judge, having presided over the arena of conflict for many years, would not do well to be seen near the arena floor agreed with me. Mastery does not automatically follow from mere proximity and observation. Hearing swords clanging from a distance does not build endurance to swing away with it in a loin skin cloth in close quarters. After rising to the top, one doesn’t drop back into the bog. After beating about as a butterfly, the butterfly does not crawl like a caterpillar again. Have you ever seen a butterfly try to behave like a caterpillar? I haven’t. But I imagine it is awkward, bizarre, and disturbing.

But as with many things in Malaysia, that tradition is eroded, corroded and turned on its head. I now contend the crowning glory of a legal career is not judgeship but to be a lawyer. I also contend this state of affairs is the doing of our retired judges: it is becoming uncomfortably common for a retired judge to get called as an advocate and solicitor and then plead in the very courts they presided over before. They fail to realise that by doing so, they reduce, lessen, and debase their former position’s prestige, distinction, and exclusivity.

I want to trot out the traditional arguments against judges returning to court practice as a reminder of why it was prohibited in the first place because I feel it has been forgotten.

Firstly, judges are not encouraged or motivated to see out their full term. Judges who cannot go back to practice are likelier to see out their full term. Allowing such a thing encourages those who join the judiciary to retire early and use their former appointment to improve their employability or earning capacity as a lawyer.

I am often advised about this when we somehow get on to the topic of whether I want to or should apply for a judgeship or judicial commissionship with well-meaning colleagues at the bar. Fahri, you should go into the judiciary. After you complete your service as a Judicial Commissioner/judge, you can command greater fees because you have experience and contacts with the judiciary. You don’t even have to be a Court of Appeal or Federal Court judge! You can command a higher fee even if you were previously a serving judicial commissioner or judge.

That is not a reason to be a judge – to improve future earnings as a counsel after retirement. With respect, I think that is a poor, if not miserable, reason to join the judiciary. Those who join for that reason have a damaging long-term impact on the judiciary. This kind of thinking could lead to a high judiciary turnover rate and taking judicial office for collateral reasons other than public service. That, in turn, brings a lack of stability and predictability about judicial affairs, policy and trends, leaving it vulnerable politically, which is dangerous in a Malaysian setting.

This setting provides opportunities for judges to curry favour with litigants or lawyers in the years leading up to their retirement as part of their career planning. That distracts them from concentrating on their work and maintaining their integrity. If judges decide with one eye on their exit, they are likely to favour certain legal positions or litigants over others, and it will inhibit, if not skew, their decision-making. For example, if, as a judge, I keep ruling for a rich and powerful corrupt politician, I can better make a case that he should hire me as his lawyer after I retire from the bench, or that would be my reward after retirement.

It is not whether the judge does but whether they are given the opportunity to do so.

Secondly, it is unfair to go up against former judges, especially former office holders, i.e., Chief Judge of Sabah and Sarawak, Chief Judge of Malaya, President of Court of Appeal, or Chief Justice.

Consider this: you pit an unknown five-year-old lawyer against a former Chief Justice. In a 50/50, which do you think the judge hearing the matter will decide for? Who is he more likely to give the benefit of the doubt to? Lawyer or a former Chief Justice? The opportunity and ease of choosing the latter over the former is available. That creates temptation and a strong one.

Even if I am overruled on appeal, I can say, “Hey, I relied on the former chief justice’s argument.” Optics-wise, it looks far better to be wrong about a former chief justice’s argument than a nobody-five-year-old lawyer. Which is easier to go with? This situation allows for this temptation to exist.

I am inclined to think allowing former judges and former office bearer judges back into active litigation breaches Article 8(1), which provides:

All persons are equal before the law and entitled to the equal protection of the law.

Article 8(1), Federal Constitution

It breaches this provision because the first limb is impossible to achieve before a court setting against a former or former office-bearing judge. Any lawyer who has never been a judge will never be equal from an institutional perspective to a lawyer who was a former judge or held high office; it will always be asymmetrical because of the latter’s previous judicial experience, contacts and insight. Saying so doesn’t make it so.

The former judge benefits from his previous judicial experience, prestige, and instinctual, if not institutional, deference, which the lawyer lacks. That creates an unequal playing field. The fair treatment of the counsels does not neutralise that advantage because the issue is the asymmetrical advantages and impressions between a lawyer and a lawyer who was formerly a judge.

Thirdly, there is the embarrassment of a former judge having to argue against his decisions or take legal positions against his previous rulings. That inevitably calls into question the lawyer’s competency or credibility as a judge and his ethics as a lawyer now.

Fourthly, there is the issue of the public interest. How would it look to an ordinary public member when they see a former judge arguing against a lawyer? I am confident that most of them will say the former judge will likely win it. Right or wrong, that is, the perceived effect of their involvement. If they think that, and they are likely to do so from my anecdotal experience, justice is no longer seen to be done already. It doesn’t matter whether it is done; as far as the public is concerned, it wasn’t done. It was an unfair battle. A Tun versus Tuan situation.

This perception does not accrue favourably to the judiciary as a whole. It will damn the doctrine of judicial impartiality. A judge must continue upholding the dignity of the judicial profession even during retirement because their personality has been closely associated with it. They remain a symbol of the judiciary.

Ultimately, this matter should be decided with the public interest in mind, not the private former judge’s interest prioritised. If the public interest is served despite the misgivings I listed above (which are not mine alone but shared by other lawyers worldwide), then fine. But it is regrettably not, and for this reason, I remain steadfastly of the view that former judges, of whatever rank, should not appear in courts anymore. When we make such assessments, we must not take the best example of a judge or lawyer but bear in mind the worst of them, too; that is being realistic.

Why should former judges persist with court work? It is not as though they cannot do anything else. There is enough non-court private dispute resolution work for them, such as arbitration and mediation. There is also enough advisory, speaking, teaching, and consulting work. In other words, much other work can be done instead of court work.

Judges receive a pension after they retire. If they were in government or legal service before their elevation, they would also get a pension for their employment too. They would have savings from their previous legal practice if they were high-flying lawyers before their elevation. There is enough compensation for them to stay away from court work. The inability to do anything else demonstrates a lack of imagination, a small and rigid circle of competency or an inherent insufficient respect for their previous office.

That is why judges should not return to court practice after retirement.

My view is not the prevailing one. But it is shared by the Malaysian Bar in its resolution passed on 15 March 2014, which reads:

(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;

Motion jointly proposed by V C George and Razlan Hadri Zulkifli, dated 5 Mar 2014

The seemingly prevailing legal position in Malaysia is that there is no bar for a former judge to return to practice as a lawyer, no matter how high the office. This was decided by the Federal Court in 2013 when the Bar Council objected to Dato’ Sri Gopal Sri Ram acting for Dato’ Anwar Ibrahim for his sodomy appeal before the Federal Court.

Considering all that, I cannot help but wonder: Did the judge have his eye on a return to legal practice when he decided that case? Did that case open his eyes to the possibility of such a career afterwards? I don’t know, and I am not saying he did. But these questions should not even have to be asked in the first place.

The one good thing about that decision was there were no written grounds. That means, as a source of precedent, that decision is worthless in light of the Federal Court decision of Tetuan Wan Shahrizal, Hari & Co. v PP [2023] 4 CLJ 843, which held, amongst others:

Thus, where there are no grounds written, there is no point or principle of law that can officially be decided or settled by the ruling of a competent court. The correct position of the law is that an unwritten decision of a higher court, whether sitting in its original or appellate jurisdiction, binds the parties to the action but is not authority for any principle or rule of law and does not bind the lower courts. 

Tetuan Wan Shahrizal, Hari & Co. v PP [2023] 4 CLJ 843, per Abdul Rahman Sebli CJ (Sabah & Sarawak), Held (1)

That means this issue is open for consideration, submission and an authoritatively written decision by the courts.

This new normal of former judges returning to practice was marked by the former Chief Justice, Tun Md Raus Sharif’s call to the Bar on 17 January 2023 at the age of 72. He was robed by Tan Sri Zulkefli Ahmad Makinudin, who served as the President of the Court of Appeal during Tun Md Raus’ tenure as Chief Justice. Tan Sri Zulkefli was also called to the bar after his retirement on 12 March 2021.

Those were the two top judicial officers in the judiciary, having reached such heights, now back in court as lawyers, just like lowly me. Tun Md Raus Sharif’s call to the Bar was significant because it was the first admission of a top former judge as a lawyer since Tun Salleh Abbas after the latter was unceremoniously removed from office in 1988.

Interestingly, the former speakers of Parliament, Tan Mohamad Ariff bin Md Yusof (16 July 2018 to 13 July 2020) and Tan Sri Azhar Azizan Harun (13 July 2020 to 18 December 2022), returned to legal practice after completing their tenure, with the latter making court appearances.

Thankfully, we do not have any former Prime Ministers who want to be admitted as lawyers after their tenures. However, Malaysia’s first three Prime Ministers were legally trained and called to the English Bar. Tunku Abdul Rahman and Tun Abdul Razak went straight into government legal service after their return. Only Tun Hussein Onn appears to have had a stint of legal practice before becoming Prime Minister.

From history and the behaviour of more recent former judges and Parliamentary speakers, we can appreciate how the prestige of the legal profession has now reached such lofty heights: those who served at the highest levels of Parliament and the Judiciary (two out of three of the organs of government) want to be a lawyer. Although the legal profession does not yet have the dubious distinction of having a former Prime Minister wanting to be admitted as a lawyer, the legal profession is the place for them to spring forth.

Nowadays, if you ask me, what is the crowning glory of a legal career in Malaysia? It’s being an advocate and solicitor, a lawyer. Retired Chief Justices, Presidents of the Court of Appeal, Federal Court judges, Court of Appeal judges, High Court judges and even the transitory judicial commissioner want to appear in court as counsel. Speakers of Parliament want to be lawyers again. Prime Ministers of Malaysia were lawyers.

Mad, isn’t it? Ah, Malaysia!

This situation is the best thing for people like me who are unlikely to make it to the bench or never reach high office and won’t amount to much in life; I don’t have to go through a career at the bench, serve time in Parliament or any government ministry to get to where they are.

I am already there.