A few thoughts on Judicial Conduct post-retirement

One of the hot topics of discussion in Bangladesh at the moment concerns the actions of judges post-retirement. As per our Constitution, a retired Justice of the High Court Division of the Supreme Court of Bangladesh may practise before the Appellate Division of the Supreme Court of Bangladesh but the question is whether it is ethical to do so, given the dignity of their position and the post-retirement benefits they enjoy.

The Bangalore Principles of Judicial Conduct (2002), the leading ‘soft law’ instrument on the issue, and Bangladesh’s Judicial Code of Conduct (2000) are silent on the rights and responsibilities of superannuated judges. It is also unclear whether their principles should simply extend to such judges. Perhaps, instead, it is worthwhile to look at the example of the UK and Australia in this regard:

Chapter 9 of the UK’s Judicial Conduct Guide (2013) states that: “9.1. The conditions of appointment to judicial office provide that judges accept appointment on the understanding that following the termination of their appointment they will not return to private practice as a barrister or a solicitor and will not provide services, on whatever basis, as an advocate in any court or tribunal in England and Wales or elsewhere, including any international court or tribunal, in return for remuneration of any kind, or offer or provide legal advice to any person. The terms of appointment accept that a former judge may provide services as an independent arbitrator/mediator and may receive remuneration for lectures, talks or articles.” Crucially, 9.2 adds: “Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary and any activity that might tarnish the reputation of the judiciary should be avoided.” In my view, this would seem to extend many of the obligations under the Bangalore Principles to retired Judges.

In contrast, Australia’s Guide to Judicial Conduct (2007) is less explicit about what judges can and cannot do. Chapter 7.2.1 of the 2nd edition of this Guide states that a Judge (re-)joining the Bar “is a “grey area” in which it is not possible to formulate Australia-wide guidelines. A judge contemplating retirement should consult the Australian Bar Association, and the local Bar Association or Law Society for relevant rulings. All however proscribe appearance as counsel in a court of which the judge was formerly a member, for various periods ranging from two to five years.” Similarly, judges are allowed to engage in commercial and political activities subsequent to retirement but with the same caveat as the UK: “[e]ven in retirement…a former judge may still be regarded by the general public as a representative of the judiciary, and any activity that might tarnish the reputation of the judiciary should be avoided. “

I think this last guideline should also be incorporated in Bangladesh’s Judicial Code of Conduct, to emphasize the need for retired judges to be sensitive to their exalted status in society.

Morshed
the Hague

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