The resolution was jointly submitted by retired Court of Appeal judge Datuk V.C. George, who has returned to practice, and lawyer Razlan Hadri Zulkifli.
George, who practised law before joining the bench, has not litigated any cases in court after his retirement. Most judges become consultants after retiring from the bench.
Both want the Bar Council to take the necessary steps to call on the attorney general to amend the Legal Profession Act (LPA) to stop superior court judges from appearing as counsel in court.
Bar Council secretary Richard Wee confirmed with The Malaysian Insider that the resolution would be debated.
Former Lord President Tun Salleh Abas, retired Federal Court judge Datuk Seri Gopal Sri Ram and former High Court judge Datuk R.K. Nathan had, since returning to practice, appeared in court to argue cases.
Razlan said he would explain to members why the resolution must be supported, while another faction which wants retired judges to litigate in court is canvassing support to defeat the proposal.
"We need the support of members to direct the in-coming Bar Council to persuade the AG to amend the LPA to stop ex-judges from litigating cases before their peers or juniors," said a lawyer who declined to be named.
However, the lawyer said many did not mind the ex-judges returning to practice to do arbitration or consultancy work.
A lawyer who is for retired judges returning to active practice questioned why the issue was being raised now and not when Salleh litigated in the courtroom.
Sri Ram declined to comment on the matter.
Singapore and South Africa are among several Commonwealth countries which prohibit retired legal eagles from going to the courts.
Colonial judge T.R. Hepworth was the first member of the Bench to go into private practice in 1960, five years after his retirement — a move which rankled both the Bar and Bench.
In September, the Federal Court ruled that retired judges could appear in court after it dismissed an application to prevent Sri Ram from appearing for a developer.
Judge Tan Sri Raus Sharif said there was no legal basis to the application by Gan Than Gee, a director of I-Innovations Construction Sdn Bhd, to have Sri Ram removed.
Lawyer Harpal Singh had argued that the LPA did not prevent a retired judge from appearing and any restriction would also violate Sri Ram's right to livelihood under the Federal Constitution.
Gann said Sri Ram's appearance before his peers would undermine the administration of justice.
"There was a great risk that the impartiality of the bench might be questioned and will be injurious to public interest," Gann said in an affidavit to support his application.
The controversy started last July when Sri Ram said retired judges could appear in court in exceptional cases like constitutional and contract cases to assist the court in making decisions.
Sri Ram said there may be public interest cases where the input of retired judges (who appear for their clients) would be invaluable.
The ex-judge said the necessity for retired judges to appear was to help move the "law forward, especially in constitutional or very important commercial cases".
He said in countries like the United Kingdom, Australia, New Zealand and South Africa, the Bar and the Bench were "intellectually very strong".
"In those countries, practitioners who had served on the bench need not appear as counsel," he told The Malaysian Insider.
Chief Justice Tun Arifin Zakaria then threw his support behind ex-judges, citing the right to livelihood, love for the law and restraint to trade if the doors were closed.
Bar Council chairman Christopher Leong, in response, said the public may perceive that former judges had an unfair advantage because they would be appearing before their friends on the bench.
Leong, who is heads the 13,000-strong Bar in the peninsula, said former judges may have worked with or discussed points of law with sitting judges and that may affect confidence in the judiciary. – March 14, 2014.
~ The Malaysian Insider