Can a judge who previously presided over a matter then take up the case as counsel after his retirement from the bench? If you don’t know the answer because you recently had a lobotomy, consider the High Court decision of Perbadanan Pembangunan Pulau Pinang v Tropiland Sdn Bhd  2 CLJ 1061.
Most judges who retire from service from the Bench (i.e.: the Judiciary) often end up as consultants or arbitrators if they don’t stay retired. For those with drama in their career would sometimes end up compiling legal reference books of little import for several years before emerging many years later to speak publicly about their the injustice that befell them.
The exalted few end up like NH Chan who despite retiring from legal authority has gained far more in moral authority if not fame. Others disappear as soundlessly and without any notice like dew that hug the blades of glass in the late morning sun.
And after all that you have the extremely rare breed that are so in love with the law that they return to practise as a court-going lawyer. Dato’ Dr. Kamalanathan Ratnam, better known as RK Nathan, a former High Court Judge, is such a breed. This was evident in the decision of Perbadanan Pembangunan Pulau Pinang v Tropiland Sdn Bhd  2 CLJ 1061.
From 8 August 2001 to 25 August 2004, on 13 occasions, RK Nathan had presided over this case while serving as a High Court of Malaya Judge in Penang. After his retirement, the Defendant’s solicitors, Messrs. Clement, Dawn & Associates, had the brilliant idea of appointing RK Nathan along with his son, Vinod Kamalanathan (popularly known as “VK Nathan”) to argue on behalf of the Defendant’s case. In the meantime, Dato’ Mohamad Zabidin, another judge, took over the case and disposed of it by allowing the Plaintiff’s claim and dismissing the Defendant’s counterclaim. The Defendant filed an appeal against the decision. It also filed an application for stay of proceedings which it then appointed RK Nathan and son to argue.
This made perfect sense. RK Nathan had presided over the matter and so he would know the file intimately because he was a hard working judge when he was on the Bench. Appointing him as counsel may also be advantageous from another perspective. Since RK Nathan was a former High Court Judge he may appear to have greater authority compared to the Plaintiff’s counsel who was a mere lawyer all his life. When you couple his knowledge of the case with his former High Court Judge credentials and match it with his unparalleled ability in advocacy, if you were the Plaintiff in this case, you should be concerned.
The Plaintiff, of course, would have none of that and raised an objection contending that the appearance of RK Nathan was “improper because of his substantial involvement in the case while serving” as a High Court Judge. It was also argued that his appearance would create “great risk that the impartiality of the court as an institution might be questioned because of an appearance of impropriety.”
The Defendant argued in reply that “issues dealt with by him (RK Nathan) were on matters of getting up the case for trial” and “mainly for the smooth running of the case.” He said no decisions were made by him which may give rise to impartiality and accused the objections raised as being “frivolous and vexatious.” It was also argued that no prejudice would be caused to the Defendant “and on the contrary Dato’ RK Nathan will be beneficial to the legal fraternity considering his past experience and expertise.”
Justice Balia Yusof Wahi who heard the application decided that a “fair minded member or the public would not have expected that Dato’ RK Nathan would act for any of the parties therein after having been involved in the matter before. Questions are bound to be asked.” In addition to the fair minded member of the public, I would also add “any person with half a brain and a semblance of rudimentary ethics,” just to be complete of course. His Lordship helpfully pointed out Head Note No. 8 of the Nora Chisolm v Tansouth Financial Corporation  US Dis Lexis 8483 which bears quoting in full:
8. A discrete problem is that of a judge appearing as counsel in a case that was filed in his or her former court before he or she resigned. The appearance is improper. In such cases, the judge sitting in the case has an affirmative obligation, pursuant to Code of Conduct for United States Judges Canon 3B(3), to take appropriate steps to disqualify the former judge as counsel. A majority of the Committee is of the view that this rule applies whether or not the court has an individual calendar and whether or not the former judge who is appearing as counsel had any involvement with the case. The public is unlikely to be aware of judges’ contacts with the case, and litigants have no way of assuring themselves there was no such contact. There is a substantial risk that the impartiality of the court as an institution might be questioned. (Emphasis is mine)
The Judge ended his decision by stating, “In my view the appearance of impropriety is real and this is sufficient to disqualify Dato’ RK Nathan from acting as counsel for the defendant in this case.”
For myself, I think it firstly, rather surprising to hear of a former High Court Judge appearing in court to argue matters. Secondly, I think it astounding that he should do so on a matter he presided over before. Thirdly, it is downright disgraceful that he should insist on appearing after an objection was raised against him.
One would think that being a former High Court Judge he would be more sensitive to such negative perceptions and try not to court such negative attention especially in the current climate where the Judiciary’s independence and propriety are called into question. Questions are bound to be asked on why RK Nathan insists in representing the Defendant despite all common sense, ethics, and law pointing to the contrary and the fact that he should know better. Questions also abound as to why the Defendant was insistent in using him as its counsel when there are many equally good counsels of RK Nathan’s seniority and ability.
What is not in question as a result of this sorry episode is that the real losers were not the Defendant but the Bench and the Bar.