I love You 1000+ Advocacy

The former deputy prime minister and current UMNO (United Malays National Organisation), Datuk Seri Dr Ahmad Zahid Hamidi, was charged with 12 counts of criminal breach of trust offences, 8 bribery charges and 27 money laundering charges in relation to the use of Yayaysan Akalbudi’s (“YA”) funds. YA was a limited company with the purpose of carrying charity work and eradicating poverty.

A ‘submission’ is a lawyer’s argument. At the close of his defence, his lawyers were reported to have filed a submission of ‘about 1,000 pages’ on 15 June 2021. The prosecution filed their submission, which was ‘about 200 pages. We can infer the High Court judge hearing the case has to consider 1,200+ pages of written submission.

Let’s do a thought experiment.

Let’s assume it takes 2 minutes to read and understand each page of submission. We assume the cut off is 1,200 pages. That’s 2,400 minutes. That’s 40 hours of reading only the written submission. This hasn’t taken into account the notes of proceedings for 99 witnesses over the course of 53 days of trial.

The report is not clear about it but my guess is the page count does not include the bundle of authorities. A bundle of authorites often accompanies a written submission. That is the collection of reported cases a lawyer refers to support their submission during a hearing. A bundle of authorities is often at least five times thicker than the written submission. So for 1,200 pages of submission, the bundles of authorities would be at least 6,000 pages.

A member of the public would be entirely reasonable in thinking that with 40 hours worth of submissions to read prior to the hearing, it would be a short one. After all, the Judge should have seized the arguments by then. But no, the news report says that 7 days – 5, 6, 9, 11, 13 and 24 August 2021 – were allocated for oral submission. Now assuming the judge devotes a full day’s hearing to each of those days, we get 6 hours (10am – 1pm and 2pm – 5pm) x 7 days, which gets us 42 hours worth of oral submission.

By the end of submission, theoretically, the judge would have spent at least 82 hours of time on just reading and listening to submissions alone. The astonishing thing is this is just the end of the prosecution’s case. We have not yet arrived at the end of the defence’s case. I fear to speculate how long the end of defence submission would be.

This is what Lord Bonomy wrote in his opinion in relation to submission prolixity:

[28] I deal now with the remainder of the original thirteen grounds of appeal in the reclaiming motion relating to the petition. The reclaimer’s case, like so many before this Court conducted by litigants rather than lawyers, includes many grounds of appeal, some relating to the points discussed so far, but a number relating to other issues. They are expressed in a series of written submissions that in many places seem designed to conceal rather than elucidate the point that is sought to be made. The danger of unduly prolix submissions by litigants, naturally immersed in the complexities of the case and the emotional turmoil that it has generated for them, is that good points may not be highlighted and may go unnoticed, drowned in a morass of sludge. The reasons why none found favour with me may be brief, but the time devoted to ensuring that no point of substance is overlooked has been considerable.

John Humphries Parkes + John Humpries Parks v Robin Macgregor and Cintec International Limited + Cintect International Limited [2011] CSIH 69

I imagine it is well within the court’s jurisdiction to impose a page limit. Even if the court sets a 100 page limit, I think that more than enough for such a case. Criminal cases are not rocket science.

A seasoned litigator and a seasoned judge too would look upon a 1000+ page submission, not as a show of strength but an inference of infirmity. A strong case does not need a battalion of pages to carry it; twenty well-written pages would suffice to manifest it. A 1000+ page submission is not a submission, it is a monument of a submission; it is meant to awe the unlearned, not persuade the wise.

I think the volume of material submitted to the court on both sides has not helped the court but done a disservice to it. It may also have done a disservice to the impressionable of our profession as well as members of the public in leaving them with the thought that this is how submissions are done.

It is not.

A lawyer’s job is to distil, distil and then distil some more the legal issues and relevant facts to its pivotal issues to assist the court in coming to a decision. We, as lawyers, are there to narrow the issues, not inflate and conflate them. We are there to facilitate the court arriving at a sound, reasonable and fair decision as efficiently as possible so it can get on with its many other cases

The longer a court spends on our case, the less time it has for others. Contrary to popular belief, a lawyer’s job is not to confuse, obfuscate or make a case more difficult for the court to decide. It is to lessen the more, and do more with less. The following eloquently makes the point:

[10] The case of Taman Bandar Baru Masai Sdn Bhd v. Dindings Corporation Sdn Bhd provides a salutary reminder of the need to ensure that a party’s case is presented, at the very least, in an organised manner, and better yet with clarity, succinctness and coherence. It was said in this case:

It is a condition precedent, when a party relies on any of the sub-section under s. 37 of AA 2005 there is a duty and obligation in law to clearly identify the sub-section, set out the facts leading to the grounds which is recognized in the said section. This was not done in the instant case. The averments in the affidavits are all lumped up unintelligibly paving the path to prolixity. Prolixity is not condoned by courts.

[11] The passage above, in my view, should apply with equal force to submissions of counsel. This is not a matter that is raised lightly or capriciously, for it is the duty of the court to dispose of cases in an efficient, expeditious and economical manner. As officers of the court, advocates should assist the court in the pursuit of this aim, and to shoulder their part of the responsibility. It is my view that, where advocates have unnecessarily increased the complexity of proceedings, by pleadings or submissions that are prolix and disproportionate to the case being advanced, they would have failed in their duty to the court.

[12] Be that as it may, I consider myself duty-bound to analyse each and every point raised and to determine each such point on its merits.

Proton Edar Sdn Bhd v Electric Angels (MSC) Sdn Bhd [2019] 1 LNS 2289, Justice Azizul Azmi Adnan

In paragraph [12] there, I felt for the judge. The judge has to remind himself, in writing, of his duty to brace himself for the morass of sludge he has to wade through. Judges have no choice in having to address it because if they don’t it may be an appealable error that affects the integrity of the rest of their decision. In that way, they are forced to waste their time and energy in wading their way to a decision. And that is unfair to them and the other cases.

Coming back to the Ahmad Zahid case. Aside from prolixity on the part of his lawyers, his case shares similar features as other criminal cases against the political elite such as Najib, Tengku Adnan, and Anwar. Recently, there is a creep towards special accommodation for local celebrities in courts too. The businesswoman Neelofa was allowed to enter the court premise with her car whilst the court’s common clientele were made to park their cars across and walk into court.

When cases involve the political elite one cannot help but observe how they appear to receive preferential treatment from the courts compared to the common unwashed accused bereft of standing and cables in society. A special path is cleared for the political elite and their supports to the court in the court building. They are given a special cordoned entrance at the courts. Members of the public and lawyers have to make way for them and their entourage. Their cases are allocated more court time than a common criminal case. Their counsels’ dates and their excuses for adjournments are accepted if not accommodated. A common case that would take three days trial to complete often takes a month or more to complete if it involves a political elite. In fact, everything about their cases are long drawn despite being prioritised. A recent example is the Court of Appeal’s hearing of Najib’s appeal against his conviction for the SRC International convictions; it lasted 15 days.

I can’t imagine it taking more than half a morning to point out what is wrong with the trial court’s judgment. In my experience, if I can’t interest the court in five minutes and persuade it on at least one point in the next fifteen, it usually means I have lost the bench. I can’t imagine spending seven days pointing out of pointing out the judge’s mistakes. By the first day I imagine the top three submissions would have been canvassed. If the court is not persuaded by then, that should be the end of it.

Judgments for the political elite are novel-sized compared to a judgment for the common criminal, which are usually disposed of in a double-spaced thirty, forty pager judgment. Defence counsels give official press conferences disrespectful of the trial judge in the courthouse lobby are allowed. An obligatory stay of execution pending appeal feels like a given following a conviction of a political elite. If you are a nobody, the common course is you go straight to prison. The nobody accused is not given any time to commiserate with his family or friends before he is taken to prison; they put him immediately behind the lock-up bars. He is not given the opportunity of an embrace at the dock before he goes in.

Given their financial power, political and social influence, and the fact they were found guilty beyond a reasonable doubt, I would have thought the political elite are prime candidates to be immediately incarcerated after their conviction – as an example, as a deterrent the courts often proclaim when they sentence a nobody heavily. To cut them from their source of power. They need to be imprisoned immediately because it is unseemly to have a convicted person exercising power and influence strutting about in society as if he were a free man partaking in public and political life.

I know this because a majority of my criminal clients are and were Nobody. Nobody does not get treated like the political elite do. Nobody’s cases are not prioritised. Nobody is in remand because Nobody can’t afford bail or it’s a capital offence. Nobody is, at best, treated perfunctorily by the authorities. Unlike the political elite that gets the tenderloin portions of the court’s schedule; their cases are always prioritised and ours make way for theirs. Nobody must make do with whatever schedule chuck. Nobody’s lawyer does not dream of giving a press conference in a judicial building about Nobody’s case because Nobody would come anyway, and Nobody is interested. Rarely is there a stay of execution pending appeal after Nobody’s conviction; Nobody is taken down to the holding cells almost immediately. Nobody notices or cares.

What all the above adds up to is this: cases involving the political elite take up a disproportionate amount of the court’s time, effort, resources, and generosity compared to Nobody. Of course, justice is done, it’s just that it’s seen to be done in a fashion that accommodates the political elite to a far greater extent compared to Nobody. We have come to the point where it is normalized and we think there is nothing wrong with treating a political elite accused of a crime very differently from a Nobody.

If you don’t believe me answer this question honestly: Do you think a common citizen will be treated the same way as Najib if they were charged for the same offence? Simply answer from what you see and read in the news or just turn up in the court buildings to watch how their hearings and trials go.

That’s a concern because we have Article 8(1) of the Federal Constitution which reads:

All persons are equal before the law and entitled to the equal protection of the law.

Article 8(1) of the Federal Constitution

All persons are equal before the law means the law and therefore the courts must treat everyone the same; it has a duty to ensure everyone is equally protected by the law. What Najib gets Nobody should get. If Najib is given cordon rouge, Nobody should get cordon rouge too. What Nobody gets Najib should get too. If Nobody gets tight deadlines and no extensions of time, then Najib should get the same too.

The courts in treating everyone similarly are under a duty to ensure its time, effort, and resources are distributed equally. That means those resources ought to be distributed fairly – to each according to its need. I concede getting the balance right is an art, not a science. I concede some cases because of the nature of the facts or evidence, or specialization of the technical knowledge involved requires more court time and resources to make the case out.

But the decision to allocate the court’s resources cannot be on the basis of the accused’s social and political standing in society. It should not be accommodating a political elite’s case because in doing so the courts will be seen to be unfair because they treat others differently. A political elite’s case should be treated as if it were just another criminal case. The cases of the political elites should not be allowed to dam up and slow down the streams of justice. To do that would be a breach of Article 8(1) of the Federal Constitution by the judiciary, the guardians of the Federal Constitution.

A judge is entitled to reject prolix submissions and demand counsels provide skeleton submission which did not exceed X amount of pages. No need to summarize the facts. The submission would state the proposition followed by the evidence or law in support. Submission is limited to a maximum of three propositions that will determine the case; war propositions, not battle propositions. If we cannot persuade with our best three, then we are not going to do so with our next three. There should be no need to delve into the rest. If a tree trunk is felled, it goes down with its branches. The judge has other cases to get on with.

Unless, and just maybe, I have read this whole 1000+ page submission thing all wrong. Maybe, I am not reading in between the bundles of authorities enough or correctly. Maybe, this 1000+ page Godzilla submission is a secret code.

What it’s really saying is, I love you 1000.

I’d just hate to see what I love you 3000 looks like.

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