MB -v- MB: 3 different judges, Same final decision is OK but SAME way they came to that decision will be ODD..would it not?

Well, there were 3 judges sitting and hearing the appeal of BN's Zambry at the Court of Appeal.

Or was it only 1 judge, who sat, heard and decided...and the other two were there for show only...

How did they come to their conclusions? We shall see...we shall see. Interestingly in Malaysian courts, we always see only one judge coming out with the grounds of judgment...and the other 2 just state that..."I concur...", and this is very odd. It is reasonable to say that 3 judges come to the same final conclusions - but surely how they came about that decision will differ a bit. [Grab a law journal from England...or any other commonwealth jurisdiction...and you will see that whenever there are 3 ...or 5...or 7, there will also be grounds of judgment also given by the other judges - but not in Malaysia (or very rarely in Malaysia)]

It always seems that ONLY one judge hears and decides, and the other 2 are there just as 'show-pieces'...and the concur(agree) not only on the final verdict but also on how they came to that final verdict.

I sincerely hope that this will not be the case in the Perak MB -v- MB. I hope that we will be able to read 3 grounds of judgments. Surely, the 3 minds do not operate as one - certainly not for all matters...

Below, is some notes of what transpired in court I obtained from a posting by lawyer Edmund Bon

These are the notes taken of the Court of Appeal’s Decision in the MB v MB matter delivered orally on 22.5.2009 by Raus Sharif JCA on behalf of the His Lordship, Zainun Ali JCA and Ahmad Maarop JCA. Any mistakes herein are mine.

Firstly, we would like to thank counsel in assisting us to arrive at our decision. The decision is unanimous and these are our views:

1. The granting or withholding of consent to dissolve the State Assembly is a royal prerogative to be exercised by His Royal Highness (HRH).

2. From the facts of this case, the request made by the Respondent (Nizar) to dissolve the State Assembly was made under Article 16(6) of the Perak Constitution, and not under Article 36(2).

3. Under Article 16(6) of the Perak Constitution, upon the exercise of HRH’s royal prerogative to withhold consent for dissolution, the Respondent shall tender his resignation.

4. There is no mandatory, express requirement that provides for a motion of no-confidence to be passed in the State Assembly against the Respondent before he ceases to command the confidence of the majority.

5. The fact that the Respondent has ceased to command the confidence of the majority may be ascertained through extraneous means. We approve the case of Amir Kahar. The case of Stephen Kalong Ningkan, adopted by the learned Judge (High Court), is distinguishable on its facts.

6. HRH was right to make enquiries to satisfy himself whether the Respondent had ceased to command the confidence of the majority before deciding on the Respondent’s request for dissolution.

7. On the facts of the case, it is clear that the Respondent had ceased to command the confidence of the majority thus HRH, in accordance with Article 16(6), was right to appoint the Appellant (Zambry) as Menteri Besar of Perak after being satisfied that the Appellant commanded the confidence of the majority.

8. The learned Judge (High Court) erred in law when interpreting the Perak Constitution. He failed to properly appreciate the evidence rendering his decision clearly wrong.

The appeal is allowed. The orders of the High Court are set aside.

…[Exchange between counsel for Nizar and Zambry with the Bench on the issue of costs.]

No order as to cost.

…[Exchange between counsel for Nizar and Zambry with the Bench on ancillary matters:

Haji Sulaiman: My Lords and My Lady, I have been instructed to appeal the decision.Due to the urgency of the matter, I pray that Your Lordships and Ladyship supply us with the grounds of judgment as soon as possible.

Raus Sharif JCA: I have tried to prepare the full grounds last night but could not do so. Will supply in a week's time. What about the application to set aside the stay?

Haji Sulaiman: We leave it to the Court to decide.

Raus Sharif JCA: Isn't it academic already?

Haji Sulaiman: We are of the view that the Court of Appeal was wrong to grant the stay. To say that we concede is not entirely correct but it has served no purpose anymore. We therefore leave it to Your Lordships and Ladyship to decide. Alternatively, for a Court to to fix a hearing date.

Cecil Abraham: We seek that the application be dismissed.

Raus Sharif JCA: Enclosure 9(a) is dismissed.

Haji Sulaiman: My Lord, it should be struck out as it has not been heard on the merits.

Raus Sharif JCA: Yes. Application struck out.]

So, what do you think - did the other 2 judges even considered the arguements and came to a decision - or they just sat there as 'show-pieces' to satisfy the requirement that it is 3 judges sitting to hear the matter.

From the notes above, it seems that the other 2 did not even say anything..

Even when counsel for Nizar asked all 3 of the judges for their grounds of judgment - only one replied 'Raus Sharif JCA: I have tried to prepare the full grounds last night but could not do so. Will supply in a week's time. What about the application to set aside the stay?...' . Haji Sulaiman should not have stopped there, and should have asked Zainun Ali JCA and Ahmad Maarop JCA when their grounds of judgment would be ready...

So, there was no full grounds prepared yet - so what did the other 2 look at and agree 100%, mmm. I wonder.

I sincerely hope that we will see 3 different grounds of judgment for logically no 3 persons, even if they had reached the same conclusion, would have come by it in exactly the same manner...but alas, this is Malaysia - and here anything is possible.

For me, the questions before the court should have been simple...

Acknowledging that it is his HRH the Sultan's full right to consent to the dissolution of the State Assembly or not...

Fact, the Sultan decided not to dissolve the State Legislative Assembly...

Thereafter, the law is that the Menteri Besar shall tender his resignation and that of his other Exco members..

(6) If the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender his resignation of the Executive Council.

The fact is that there was yet any tendering of resignation by the Menteri Besar and the Exco..

The question is whether there can be any appointment of a NEW Menteri Besar before the old Menteri Besar tendered his resignation...

That is all there is...

I also wonder the Pakatan Rakyat's Nizar went to see the Sultan under this Art. 16(6) ...or did he just go ask the HRH to dissolve the State Legislative Assembly under Art. 36(2), and of course pursuant to Art.18(2)(b) it is totally up to HRH the Sultan. If this was the case, then there was no issue of tendering any resignation...

Again, the question here would be whether there can be any appointment of a NEW Menteri Besar before the old Menteri Besar tendered his resignation...

.....

We all know that after the 3 jumped - it was the BN who had the majority...

Can there be a new Menteri Besar appointed when there is already a Menteri Besar of Perak?

That is, and should have been the question for the Court of Appeal to decide...

The decision now seem to say that if Anwar Ibrahim now goes to see the YDP Agung, who thens appoint him as Prime Minister - Najib is suddenly no more Prime Minister...someothing is wrong with that kind of thinking - but alas this is only my opinion on the matter...