Malaysian court judgments could be improved to reflect better that all judges sitting in a coram, did individually consider the facts and arguments and came to a decision....Judgments, as such, should reflect this...as such, a judgment of just one judge may be insufficient. Other judges should at the very list state their agreement and sign below this statement.
At our Court of Appeal, a case is usually heard by 3 or more judges.
At our Court of Appeal, a case is usually heard by 3 or more judges.
Let's take the Court of Appeal, where 3 judges hear a case - then, let us look at the Judgment.
3 judges means 3 persons hearing the arguments, considering the facts - they may come to the SAME conclusions - but how they came to the same conclusions would reasonably differ...
So, 1 judge after discussing with his/her fellow judges may write the Judgment of the Court...Other judges, though they came to the same conclusion may write out what may be some different points that also led him/her to the same conclusion.
OR maybe, the 3 judges went through the preparation of the judgment together and all agreed to the text of the judgment completely...
In any event, it would be good that at the end of the 1st judges written judgment, the other 2 at the very least says 'I agree' or 'I concur' and put their name to it. Such an 'I agree' or "i concur' really means that I agree to the points made, and the final decision... BUT reasonably, it does not mean that I agree word for word including any grammatical or spelling mistake or drafting style...
An example, of a Court of Appeal Judgment in another jurisdiction Economical Mutual Insurance Company v. Optimum West Insurance Company Inc., 2019 BCCA 184 – 2019/05/29
Court of Appeal
[58] I find that the chambers judge erred in finding that Ms. Wong was a Residence Employee as defined in the policy. I need not determine the authoritative approach to analyzing employment relationships in the context of interpretation of standard form insurance contracts. Accepting without commenting on the chambers judge’s finding that Ms. Wong was employed by Mr. Wong and Ms. Lai, Ms. Wong was nonetheless performing duties in relation to Mr. Wong’s and Ms. Lai’s rental business. That determination is sufficient to dispose of the appeal and it is not necessary to deal with the other grounds raised.[59] In the result therefore, I would set aside the order of the chambers judge and dismiss the petition.“The Honourable Mr. Justice Goepel”I AGREE:“The Honourable Chief Justice Bauman”I AGREE:“The Honourable Madam Justice D. Smith”
Well, let's look at another judgment in a Court of Appeal before 2 judges - After LORD JUSTICE HADDON-CAVE's 60 para judgment, then we have the judgment of the other Judge in a few paras
Well, here again, we are confident that both the judges were listening and deciding ...on the case.Neutral Citation Number: [2019] EWCA Civ 851Case No: A2/2018/2893IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONMR JUSTICE GOOSE [2018] EWHC 3383 QBRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 17/05/2019 Before :LORD JUSTICE DAVIS and LORD JUSTICE HADDON-CAVE---------------------60.Finally, I would add that the message needs to go out to those who might be tempted to bring-or lend their names to-fraudulent claims:that dishonest claimants cannot avoid being liable to committal proceedings merely by discontinuing their original fraudulent claim.LORD JUSTICE DAVIS61.I agree entirely with the reasoning and conclusion of Haddon-Cave LJ.62.The appeal court will always be slow to interfere with the evaluation and exercise of discretion of a first-instance judge in deciding whether or not to grant permission to bring contempt proceedings. But, as explained by Haddon-Cave LJ, the Judge’s approach here was, with all respect to him, flawed: and that entitles this court to intervene.63.The Respondent among other things says that he did not in fact approve or authorise the various Statements of Truth and also complains of a lack of proper advice from his then solicitors. Those no doubt will be issues which can be explored at the substantive hearing. However, I observe at this stage that the signature of the solicitor to the Amended Particulars of Claim carries with it the connotations set out in paragraph 3.8 of Practice Direction 22 which supplements CPR Part 22. As to the Response to the Part 18 Request and the Witness Statement of the Respondent (both of which on their face bear the signature of the Respondent in electronic form) it is difficult at this stage to see how the substantive statements there made could have derived from any source other than the Respondent: nor should he have needed express legal advice to the effect that, in providing such information, he should tell the truth.64.Accordingly I too would allow the appeal. What the outcome of the substantive contempt hearing will be will be entirely a matter for the court on that occasionin the light of the evidence, materials and explanations presented to it..
What about Malaysia?
Looking at Federal Court judgment, where there are 7 judges in the Coram - and we often see that the Judgment ends with the signature of 1 Judge ...and the judgment uses 'we'...indicating that all 7 agreed...BUT would it not have been better, if the remaining 6 also specifically stated at the very least the words "I agree'...or 'I concur" ..or '
...I agree entirely with the reasoning and conclusion of RICHARD MALANJUM, CJ..'
Looking at Federal Court judgment, where there are 7 judges in the Coram - and we often see that the Judgment ends with the signature of 1 Judge ...and the judgment uses 'we'...indicating that all 7 agreed...BUT would it not have been better, if the remaining 6 also specifically stated at the very least the words "I agree'...or 'I concur" ..or '
...I agree entirely with the reasoning and conclusion of RICHARD MALANJUM, CJ..'
They may all have come to the final conclusion, and even the same reasoning - but was there not even some that had something extra that one of the other judges had to say...
IN THE FEDERAL COURT OF MALAYSIA(APPELLATE JURISDICTION)[CRIMINAL APPEAL NO. 05(L)-(72-74)-03/2019(W)]BETWEEN
JUDGMENT OF THE COURT
35. For the foregoing reasons we set aside the stay order of the criminal trial granted by the Court of Appeal. Similarly the Respondent's oral application for a stay of proceedings before us is dismissed in the absence of any "exceptional or unusual circumstances". The matter was therefore remitted forthwith to the High Court to proceed with the criminal trial.
(RICHARD MALANJUM)Chief Justice
Or maybe, a statement that indicated that all read and agree with the reasoning and conclusions.. as written by one lead judge...in the above case CJ Richard Malanjum?
And some where all the name of the judges is recorded at the end of the judgment...this also is ODD, in my opinion - agreeing with the reasoning and conclusions is OK but to also 'writing style', etc ...but then it can happen sometimes but not always..
When 3 or 5 or 7 judges are hearing a case, the judgment should also reflect that all were really listening to arguments, considering all points...and finally coming to their own judgment...and these individual judgments all are in agreement with the conclusions reached(and, maybe in some case the reasonings as well...).IN THE FEDERAL COURT OF MALAYSIA AT PUTRAJAYA(APPELLATE JURISDICTION)CIVIL APPLICATION NO. 08(i)-394-07/2018(W)BETWEENPCP CONSTRUCTION SDN BHD(COMPANY NO. 520191-U) … APPELLANTANDLEAP MODULATION SDN BHD(COMPANY NO. 922377-P) … RESPONDENTANDASIAN INTERNATIONAL ARBITRATIONCENTRE … INTERVENERDalam Perkara Permohonan Bagi Perintah KomitalUntuk Menghina Mahkamah di bawahAturan 52 Kaedah-Kaedah Mahkamah 2012)Peguam Negara Malaysia … PemohonDanArunachalam a/l Kasi … Responden 2CORAM:RAMLY BIN HAJI ALI, FCJAZAHAR BIN MOHAMED, FCJROHANA BINTI YUSUF, FCJTENGKU MAIMUN BINTI TUAN MAT, FCJNALLINI PATHMANATHAN, FCJJUDGMENTIntroduction[1] This is our judgment in respect of the Honourable Attorney-General’s application dated...
...129] In the circumstances we are of the view that the appropriate sentence is a term of imprisonment of 30 days from today and a fine of RM40,000-00 in default, a further 30 days.
SignedRAMLY BIN HAJI ALIFederal Court JudgeSignedAZAHAR BIN MOHAMEDFederal Court JudgeSignedROHANA BINTI YUSUFFederal Court JudgeSignedTENGKU MAIMUN BINTI TUAN MATFederal Court JudgeSignedNALLINI PATHMANATHANFederal Court JudgeDated : 23 April 2019
When I am before 3 or 5 or 7 or 9 judges, is my case case being heard and considered by all judges independently - if so, then judgments should really reflect this, should they not?
An Election Manifesto of PH can be one that is endorsed signed by all PH parties - but a Judgment is not an election manifesto...it is not simply laying out commitments but also includes reasoning and considerations of the various arguments and facts ...
Should the new Chief Justice be looking into improving the way judgments are written in Malaysia ...It may be best that who was responsible for writing the substantive judgment is clear, and the agreement of the other judges in the panel be clear...at the end of the day, they may all agree with the conclusions - so express this? Or they may also agree with the reasonings that led to the conclusion - so state this.
Now, when it comes to citing and mentioning judgments, it is best that it be a judgment of 1 judge ...adding later the point that the remaining 2 or 4 or 6 judges also agreed with the conclusions, or even the reasoning.. It is however better if the remaining judges penned a few paragraphs highlighting maybe the different thought process that reached a similar conclusion, or an additional(but different reasoning or train of thoughts) that led to the same conclusion...
This is my personal opinion how judgments could be improved...and hopefully, this will stimulate thought and discussion...in Malaysia .
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