The Hubris of Long Judgments (and the Folly of Long Submissions)
Louis Rhead (1898) The Pilgrim’s Progress, The Century Co.
Lawyers are taught that long-winded submissions are unnecessary and long judgments are also unnecessary. In reality they are both alive and well. In reality, long submissions and long judgments still inhabit the practice.
Short concise submissions and short concise judgments are better and I wish to discuss this here.
Written Submissions are becoming Dominant at the Expense of Oral Submissions
When I started my career, I was made to think that oral submissions is the dominant mode of delivery for criminal matters; trial and appeal. The submissions are good for the record but it is mainly to support the oral submissions.
When I was a prosecutor, I was trained that written submissions were important so that you do not leave anything out. Unfortunately at the time, I hardly had time (or maybe discipline) to prepare full blown written submissions for all my trials. In one case I had zero case law and in another all I had was R v Baskerville. I just relied on my facts and my arguments. Now that I am in private practice, I prepare full written in all my cases because I just have the flexibility and motivation to do so, but that is just me. We know that prosecutors from the Appellate & Trial Division roll out big submissions all the time every week.
I have observed that even in the criminal practice, the courts, even the lower courts, have been instructing full written only for a couple of years now. I have seen full oral in Penang and KL and Selangor more than 10 years ago, with loose copy authorities. I do not handle many cases outside Klang Valley, but the practice in Jalan Duta and Shah Alam tend to be full written. Selayang and Sepang have been full written so far. I trust your observation is more or less the same.
In the criminal bar, families of accused are sometimes in consternation: Why did the lawyer not fight the case with passion and charm like on TV? Why did the lawyer instead of arguing with wit and skill, just hand up a pile of papers over the interpreter’s table? Or worse, in this age of e-filing, hand over nothing. They should see how thick our submissions are getting! As though to compensate for no oral, the submissions are made thicker with lots of case law. As I will repeat later, the increased use of online digital libraries has contributed to this development.
The public is reminded that a lawyer is not appointed nor paid for the thickness or weight of their submissions (only). But courts (at least those that I appear in) are still more inclined for full written with clarification on the decision date.
For many years now, even before e-filing, even the lower courts tend to instruct for written submissions only. When they fix a date for clarification (klarifikasi), some lawyers fully ventilate from A to Z.
Some of my unbest hearings were those chaired by the former Tan Sri Raus Sharif. I had probably 3 or 4 cases only (he heard my short call but that doesn’t count). All except one were assigned. He reads beforehand. Submissions before His Lordship were like sipping from a full cup of water. You only get a short sip and then he takes the cup away from you. Half the time, he dismissed my case without hearing the DPP. Many other appellate judges gave good hearings and I feel satisfied that they gave fair consideration even if I lost. Lots of appeals before Tun Tengku Maimun, Dato’ Wira Mohtaruddin (two sweet wins before His Lordship), Dato’ Rahman Sebli, Dato’ Zawawi Salleh, and many others. I had 2 cases before Datuk Umi and I was scared each time. But she was always great.
Most of the time you can give full ventilations at the appellate courts and the panel will patiently listen. Their patience and temperance befits their station.
Baron David Pannick, member of the House of Lords wrote [1]:
Even if all English barristers had the skills of Cicero, it is difficult tojustify the willingness of the English judge to spend his professional life listening (or at least appearing to listen) to the counsel's long submissions. Legal authorities and docu- ments are slowly recited to judges, whose own ability to read is not in doubt, and who could therefore more efficiently acquaint themselves with the material in private in a fraction of the time, leaving the advocate to draw attention to particular passages on which special reliance is placed.
The senior barrister suggested that English barristers have no difficulty in accommodating themselves to the practice in the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg of supplementing written submissions with oral argument of about 30 minutes. He concludes:
If advocates are notable to make short submissions, they may find the hitherto tolerant English judiciary imitating the Canadian judge who is said to have dismissed a lengthy legal argument with the short judgment: "Bullshit, costs to the respondent".
On the local scene, in advocacy courses and even remarks from the Bar, or by the learned Timbalan Pendaftar during case management, we are often advised to make the submissions brief and concise. But it does not happen, does it.
Senior lawyer GK Ganesan advised in his article “How to succeed in Federal Court Leave Applications” published on 25 October 2018:
Long submissions don’t work
Easy understanding does. ‘Efficiency does not mean the paper with the shortest length; rather, (it means) the paper that takes readers the shortest time to understand.’
I have heard from a few law lecturer colleagues who lamented marking exam scripts from undergraduates. I wonder if it is the same feeling that a Judge goes through having to read through and listen through long submissions.
But how about long judgments? Good grief, the Bench beat the Bar hands down.
I get the point that parties have the right and duty to ventilate and the court has the duty to listen. I get it. But let’s reason please. Let’s take this constructively and not confrontationally.
The Maharaja of Long Judgments and Basic Structure Doctrine
In my humble view, the King (or rather the Maharaja) of Long Judgments must be the Supreme Court of India. I can’t vouch for the accuracy of this statement, but my pupilmaster joked, in a serious tone, that the Supreme Court of India Judgments is the only place where the law reports print the names of the Judges larger than the name of the case itself.
One of my former heads of division remarked in my earshot, that in the Supreme Court of India, the judgments are long enough that for every argument on constitutional law, you will be able to find another Supreme Court of India judgment that says the opposite. Sometimes within the same judgment.
Let’s hear it from our learned brother and sister lawyers themselves [2]:
Notably, the verdict in the Kesavananda Bharati case (1973) that propounded the Basic Structure Doctrine contained 700 pages and was difficult to comprehend. The SP Gupta case (1981) that had roughly 830 pages. However, during the last few years, the Supreme Court of India has broken its own record of writing the longest verdict. It seems there is a competition among the judges to make new records in terms of writing long judgments. The NJAC judgment (2015) had 1042 pages; the Aadhaar judgment (2018) in the Puttaswamy case had 1,448 pages; the Ayodhya judgment had 1,045 pages.
A couple of years back, my department assigned me and my colleague to work with a senior prosecutor at the Appellate & Trial Division of the Attorney General’s Chambers, because our department faced a constitutional challenge in one of our insider trading cases. The opponent in our insider trading case referred to the massive decision referred above, Kesavananda Barathi. The only part that we really needed was a couple of paragraphs in a few pages only because that was the pages referred by our learned opponent, a famous and respected constitutional lawyer. But suddenly the pages spilled out of the photocopy machine! What will we tell Tuan (the “owner” of the printed judgment)? Me and my prosecutor colleague had to reconstruct the decision. Imagine doing that for a 700-pager. His PA said that Tuan had his own copy, so we were saved. Be assured, the 700 spilled out pages mentioned just now was repurposed for a righteous cause in service of the nation.
But today we have to show respect to that decision even though it is super-long and super-thick (and super terkhilaf).
Years ago, a few highly respected Judges in Malaysia thought it was fitting to import the basic structure doctrine into our system, relying on that 700-page judgment. Now this doctrine has been repeated enough times among their judgments and even in a speech by our Chief Justice, that it has become part of our law. My view is that the basic structure doctrine is alien and does not exist in Malaysia. For something of such gravity with its intended purpose to have a place in our country’s legal system, it would require something to the tune of an Act of Parliament or a Constitutional Amendment Act. But my view does not matter. Basic structure has proliferated and it is here to stay. We can observe that in the leading cases which promoted this doctrine, there have been quiet concurring panel judges. What is at stake now is the content of basic structure. I think our courts should moderate this doctrine because the way it is evolving now it can get out of hand and even work against liberty in the long run.
More from our brother and sister lawyers from India:
Lengthy judgments do not serve any purpose. Rather, they create more confusion and bring inconsistency in case laws. A five-judge bench was created in the Islamic Academy of Education case (2003) to explore the true import of the 11 judge-bench judgment of TMA Pai (2003). But the same was miscarried, and finally a 7 judge-bench in PA Inamdar (2005) resolved the issue.
A question comes to mind as to why judges write lengthy opinions. The primary justification may lie in the fact that the Constitution permits every judge to write their own opinion (concurring or dissenting). But what is distressing is that when judges agree, they do not critically engage with the views of their colleagues. In the majority of cases, it becomes hard to decrypt the precise law from the discordance of different opinions; all judges seem to be saying the same thing.
The unanimous privacy judgment (9:0) pitched six separate but concurring opinions. Each judge offered a different test to define the contours of the right to privacy, resulting in a long judgment. Similarly, in the NCT Delhi Case, three separate concurring opinions with substantial agreement on all important issues eventually increased the number of pages to 535.
The role of Doctrine Formulations in Long Judgments
We learned in law school about the evolution of the concept of prima facie from Haw Tua Taw, Khoo Hi Chiang, all the way to Arulpragram’s 4-3 split decision, then the amendment to the Criminal Procedure Code in respect of prima facie. The maximum evaluation test as enunciated in a string of leading cases, often cited in Balachandran, Radzi, and others. In all fairness, Haw Too Taw until Arulpragasam were in my humble view of reasonable length in view of the issues covered and the gravity of the matter under consideration. So length is justified there.
Personally I have to respect these formulations distilled by the best minds of our judiciary over the decades. The criminal procedure has a few of these formulations. You need to be a judge or lawyer to find them because a layperson would not be able to find them in any written law. I accept this as a lawyer, but I think if we can codify the most important doctrines in statute, at least laypersons can see what they look like, even if they could not make sense of it as deeply as a trained lawyer.
Ritualistic Recitations and Housekeeping
Regretfully, I have some feelings of disdain of the use of such formulations in certain situations because they only encourage thicker and thicker judgments containing what appear to be ritualistic recitations of the formulas. Have you seen the quality of the leading high court and apex court judgments from the 1970’s and 1980’s and 1990’s"? They were of acceptable length, they needed not recite every formula. They need not recite every fact, just the central material ones. As the first decade of 2000 concluded, we saw thicker judgments with paragraphs and paragraphs of recitations. Did the quality of decisions follow the increasing length of decisions? Some were overruled hard and later departed hard. We hardly saw dissenting judgments.
Lawyer’s Contribution? : Lengthy Submissions and Long Petitions of Appeal
Perhaps lawyers were to blame. The judgments became thicker and thicker because the appellate solicitor would state in the petition of appeal that the trial court erred for failing to consider so-and-so formulaic recitation and thus there was a misdirection by way of non-direction. I have read about old cases arising from long petitions of appeal, but they were the exception. I have not practiced law long enough, so I do not know whether lawyers of times past often wrote long submissions with volumes of authorities that say the same thing.
Are we saying all those brilliant judgments of short length from the 1950’s and 1960’s and 1970’s were misdirected? In the late 2010’s onward -- I wonder if the trial judge actually cycled through each process of the formulas in the process of convicting or acquitting an accused person.
Criminal Cases are Dominated by Evidence
Every proper criminal lawyer knows that criminal cases are dominated by evidence. Procedure is very important but there are less strictures and less paperwork compared to civil procedure. The rules of relevancy and admissibility are the real masters of the criminal law. Those things like what a judge does after receiving and making sense of the evidence are within the realm of the judge’s consideration. Here is an example below of a decision that overruled a trial judge’s decision. Can you see why our judgments are getting thicker and thicker?
“[21] The aforesaid finding of the learned trial judge can be broken into two parts Firstly, he held that "having made the maximum evaluation of the evidence of SP5, SP6 and SP8 in their totality especially with regard to the identity of the accused person". Secondly, he continued by saying that "and his joint involvement with others in the attack on the deceased at the scene". The first part appears to be rather general as it is vague and not helpful. The learned trial judge appears to have glossed over the material evidence with regard to identification and common intention. What is the meaning of the first part of his finding? What did he mean by saying "the evidence of SP5, SP6 and SP8 in their totality with regard to identity of the accused person"? SP5 did not identify the appellant. As for SP6 and SP8, we have demonstrated how SP6 contradicted himself in his own evidence and how his evidence materially contradicted SP8's evidence in respect of the description and thus the identification of the appellant. It is true that the learned trial judge did consider the discrepancy in the evidence of SP5 and SP6, respectively, regarding the number of persons seen by them alighting from the car However, there is nothing in his judgment to show that he had considered the material contradictions within SP6's own evidence, and the material contradictions between SP6's evidence and that of SP8 regarding the description and the identification of the appellant at the scene of the offence, let alone the ultimate vital question whether in view of the contradictions it was safe to rely on their evidence. That failure is a serious misdirection on the part of the learned trial judge in his handling of the issue of identification of the appellant which was so crucial to the question as to whether the prosecution had established a prima facie case against the appellant. In our view, this misdirection (by way of non-direction) alone is sufficient to warrant appellate intervention. Additionally, in the second part of his finding, which is the continuation of the first part of the finding, the learned judge said "and his joint involvement with the others in the attack on the deceased at the scene, the intention of which was clearly to cause the death of the deceased". According to the learned judge, this finding was made by him after "having made the maximum evaluation of the evidence of SP5, SP6 and SP8 in their totality". What did he mean by that? What did he mean by "his joint involvement with the others in the attack on the deceased"? He did not make specific findings as to what the appellant did or did not do in "his joint involvement". In his evidence in court, SP6 did identify the appellant as one the attackers However, as we demonstrated, there were contradictions within SP6's own evidence, and contradictions between SP6 and SP8's evidence which raise serious doubt on the identification of the appellant as one of the attackers of the deceased or as one of the culpable participants of the offence. As we have said, the learned trial judge did not direct his mind to those contradictions in considering the issue of the identification of the appellant. There is also nothing to show that he had addressed his mind to these contradictions in considering what was the act done by the appellant in participating in the criminal act which actually committed to make him liable by the operation of s 34 of the Penal Code. Indeed there is no finding made by him on the specific act done by the appellant in furtherance of the common intention which is crucial in a case such as this where reliance is placed on s 34 of the Penal Code. This is another serious misdirection made by the learned judge. We conclude that the learned trial judge had not made maximum evaluation of the evidence at the close of the prosecution's case, which in our view had occasioned a serious and substantial miscarriage of justice, warranting appellate interference.
[22] In the result, we allow the appeal. The conviction and sentence is set aside. The appellant is acquitted and discharged.”
I handled the trial and the trial judge ruled in our favour. So the above decision criticised the trial judge’s findings. Parliament makes laws. Police investigate violations of the law. Prosecutors frame charges and prosecute offenders of the law. Judges interpret the law and consider evidence. In the wheel of justice, each of us is a cog that plays a role, and we just need to play that one role well and fairly. We cannot and need not save the world. But out of all the cogs, there is one cog, which can break the wheel: the apex court.
A few top decisions by the apex court shows that in very exceptional cases, the apex court can review past decisions or depart from previous findings. That will be the cog that replaces the wheel of basic structure. Or we may not need to reinvent the wheel with a long judgment, we just need decisions or Parliamentary involvement that can moderate or limit the effect of its scope.
More trends
Now my further views on the trend of judgments in the last 15 years since I started my career. I think some of the formulations are unapproachable, artificial and even unnatural. It made sense during jury trials where the direction of the judge to the jury was just as important as the findings themselves. I wish I could hear about this issue from lawyers and judges who handled many jury trials.
Now we have lengthy directions that the judge give themselves to their own judicial mind. This is has evolved into an artificial practice, and can be imagined like the old practice of a trial judge warning themselves of the danger of convicting on uncorroborated testimony for certain categories of witnesses. Like rape victims and molested children.
The judge writes down the direction that he supposedly gave themselves. Since I have never been a Magistrate or Judge, I have no experience doing this. But I have some experience assisting the Court with this.
In my humble view, there is no check and balance with self-directions. What is the point of having so many species of formulas that you read to yourself? There is no way of seeing whether the direction was complied or not complied.
How Long Doctrines Has Masked the Dangers of Prejudice
On the issue of prejudice, realistically one human judge cannot partition their minds once they have seen and heard prejudicial evidence. Can the judge unsee or unhear or unthink the prejudicial evidence? Can you? Can writing down certain directions actually partition the judge’s mind? Are directions written down to really perform that function (eliminating prejudice) or is it to avoid allegations of non-direction by the appellate counsel?
Arguments on prejudice are often brushed aside with reasons such as:
There is no prejudice because the Accused is represented by counsel.
There is no prejudice because the Accused can still cross examine the witness.
There is no prejudice because the Court has not marked it yet (even thought the Court has seen it, gory details and all, and heard the police testify about it and rely on it for their investigations).
There is no prejudice because it can be expunged. (Press “undo”, “unsee”, “unhear” or “unthink”).
There is no prejudice because the Court shall warn itself.
Prejudice does not matter because the evidence is relevant and the probative value is loaded.
In a jury setting, the judge directs the jury on the instructions, what they should think and how they should think (from my understanding, as I came of age after the extinction of juries). The jury comprises a dozen laypersons who have great respect and deference for the instructing judge.
In the long excerpt quoted above, the appellate court criticised the trial decision for not considering this and that, on the basis that it appeared as though this and that were not considered. Just because it was not written down. Inscrutable!
Though I am still studying the jurisprudence, I consider the originalist thinking most helpful in illuminating and discovering the law. I fully support robust judicial activism that is moderated within the parameters of the established legal structure. The courts should not invent new structures or underlying structures. I have mixed views about judges inventing more and more formulations of the characteristics discussed above. Perhaps it works best in jurisdictions where the law reports feature names of judges in larger font than the name of the case.
What does Parliament have to say about this?
Let us look at 2 provisions in our favourite statutes.
Section 167 of the Evidence Act 1950 provides that there shall be no new trial for the improper admission or rejection of evidence.
Section 422 of the Criminal Procedure Code also provides that no decision of the court shall be set aside due to technicalities unless such technicalities occasioned a failure of justice.
You can see that Parliament in its wisdom, or moreso the pre-Merdeka lawmakers in their wisdom, codified the prohibition against these petty rigmaroles that can cast adrift the ship of justice. But Parliament left a lot of power with the courts. There was real judicial power back then. With a phrase like failure of justice, you can really take it to town. Some terms are used interchangeably either by accident or intention such as miscarriage of justice.
In respect of the long excerpt above, we should study how perceived omissions are handled by the appellate courts. Firstly, how omissions are actually perceived and recognised as omissions, and against what standard. Secondly, the effect of such recognition.
Omissions in Judgments and Omissions by the Accused
Give this a thought for a moment. It is an idea.
This indulgence for omissions in judgments should be extended to omissions by the Accused. Trial judgments and Accused’s statements are not apples and oranges per se. You see, the Accused and the Judgment are the starting point and the conclusion of all criminal cases. The beginning and the end. So they are both opposite poles of the same goal, to strive for justice. Omissions should not be penalised for either one, unless it is very blatant and intentional. You cannot say that an omission by an unrepresented arrested person was blatant and intentional.
More and more Accused appellants are getting hanged for not saying the right thing at the right time to the right witness. An accused who is arrested by the police would not know whether they should say something or what they should say or how. But this split second moment of arrest and the Accused’s verbal and physical reaction or non-reaction has been assigned great importance and weight even though the arrest is not recorded by video or sound. So often that the incident of arrest is described differently by the parties.
I was assigned a drug trafficking case where the Accused’s instructions was that he held the bag containing drugs in his hand. He was an Igbo Nigerian gentleman and very nervous. But the police’s version was that the drugs were in his underpants. Such uncharitable disparity, it was not even funny. Suppose my client’s version was the truth (and my instructions were that he was telling the truth), what kind of audacity and zeal would move the police to say the drugs were in his underwear. We all know even drugs held in the hand is incriminating. It was cruel. Fortunately, the Prosecution accepted our representasi and offered an alternative charge. Allah loves those who are merciful. God bless the Prosecution.
Louis Rhead (1907) A Collection of Book Plate Designs
So the Courts should excuse the omissions by the Accused at the time of arrest just as they sometimes excuse judges who omit giving certain directions to themselves. I think the situation of accused omitting to say something to plainclothes police who suddenly raid them, is more suitable to be given the benefit of such omissions. People do not omit things only because they are lying or hiding something. There are lots of reasons people do not disclose certain facts at certain times. How about those instances of suspects whose defence was not recorded by the police? Because the statements were not recorded (as I have recommended above in the context of confessions), we have no way of knowing who is telling the truth and who is lying. The police should be benefitting from the “cow jumping over the moon” (overruled by Her Ladyship Tengku Maimun in a Court of Appeal decision), and the presumption under Section 114(e) of the Evidence Act 1950. The Accused should not have to justify what he is benefitting from. The Accused gets the benefit of the doubt and the Prosecution has the burden delivering the proof. Ultimately this comes down to the recognition of a fundamental right which is the right to remain silent. The right to say something becomes significant only when you also have the right to not say anything if you do not want to.
Long Submissions
I am not going to show how to write submissions. I am not the best lawyer around. I might write about it for law students and beginners another time.
We know that if we trim out all the highlighted case laws, pages and pages of it, and trim out the housekeeping pages (introduction, the ingredients of the offence, the definition of prima facie, the burden of proof, fakta kes, and other things that the judge may or may not need), we will have the argumentation at the heart of the submissions.
We should be spending more time and focus on this and not on housekeeping. Housekeeping should be abolished. The Appellate courts are good at cutting out the fat and telling parties to get to the point.
Imagine if all prosecutors and defence counsel only made submissions consisting of the argumentation, in point form, with a punchline conclusion. It would look like an expanded petisyen rayuan, each point perhaps with one or two case law, but the case law does not need to be copied in full, just the reference.
I don’t know, we see more and more decisions delivered on a date fixed for keputusan / klarifikasi with no oral submissions as often as we used to. This could be a push-back to decades of counsel going on and on and then in reply, repeating the same thing without adding anything new.
I am a believer of oral submissions. Written submissions do not cut it as well. They are really good for looking good in the Rekod Rayuan, so that the appellant parties can see whether a particular argument was already litigated before the court in a particular way. Bonus points for oral submissions that goes on a different angle from what was in the written submissions, and the grounds of judgment follow the oral one only or the written one only.
I do not know this myself, but I heard that certain appellate judges receive much assistance, sometimes very good assistance, from the Timbalan Pendaftar or Research Officers. Keep doing what you do best, I say, and do it well for the sake of justice.
Written submissions and oral submissions also keep the client happy in different ways. Written submissions can be circulated through the office of important management in a company. Oral submissions placate anxious relatives in the public gallery. They need to see their lawyer doing the best for their loved one in the dock. Handing a pile of papers over the jurubahasa’s table does not do it. E-filing removes it entirely.
I appreciate all the above. But we need to do something about excessive submissions. I do not know whether big submissions do much damage to overwhelming evidence, for example, unless you are hammering on a point of law full of research, for example.
I suspect, but cannot prove, that the proliferation of longer submissions are partly due to digital online libraries helped by keyword searches, and this has therefore affected the length of judgments. I wonder how often lawyers use keyword search (Control + F) on the PDF grounds of judgments. Contrary to my earlier belief on the subject, AI could impact the litigation practice more than I expect.
Let’s simplify our submissions. Maybe the courts would be more open to hear our oral submissions as often as they used to.
Back to Fundamentals
I hope courts remain firmly on the fundamentals of the Federal Constitution, statutes and common law. On the other hand, I have mixed feelings about numerous judge-made doctrines and formulae. Before such doctrines were made in a pioneering case, the sitting judge would have referred to some English cases or India cases. I have issues with this and hope to explore this further in another writing. Some of the so called developments have taken us on what could be a wily tangent, to realms unforeseen by the founding fathers and monumental mothers of our nation.
You see, if a judge wanted to hang someone so badly or to acquit someone so badly, or to impose a heavy sentence so badly or a lenient sentence so badly, there are abundant areas of discretion on which an unassailable frolic is possible. Unassailable frolic means it is hard for an appellate panel to find fault with with the agenda of overruling. All they need to do is make a finding on demeanour and credibility, tick a few boxes on prima facie, maximum evaluation, burden of proof, and you are home, Dato’. I think over time, especially for drug trafficking cases, considering alternative theories and favouring theories that favour the defence are becoming less and less important – because failure to do so is being criticized less and less or with less and less intensive quality.
Outside the law, let’s say literature or music. If a junior or less established person criticizes a respected literary or musical piece, a more senior or more established person will tell the former that they just don’t get it.
“She had enough of it”
This is a story of an appellate bench in another country and it is fictional with no innuendoes. One judge kept writing his grounds by inserting points that were never litigated by the parties. The purpose was to imprint his concept of jurisprudence into the common law of that country. He developed a concept of the “Trinity of Cases” involving 3 cases that were nominally comparable but were actually different. He repeated this “Trinity of Cases” with the branding of “Trinity of Cases” so often that some high courts started picking up from it and even an apex panel or two. He developed some jurisprudential philosophy thereby. Then one day this lady judge had enough of it. She sat through so many of his judgments as a quiet panelist and she did not dissent nor did she write the grounds in her own name. But she was being patient about his frolic into the Trinity of Cases, pushing issues that were not litigated. One day she just wrote it down in a separate judgment that she found the Trinity of Cases and this new jurisprudence irrelevant to the case even though she agreed with the outcome. This did not happen in Malaysia.
What we can say is that we can rely on judges including panel judges to put their Honourable foot down and put a stop to long judgments if they venture too far a frolic.
The Quantitative Challenge
It is difficult to prove my observations above on comparative statistics. This is because of the reality that not all good decisions are reported and not everything reported are good decisions. But if you ply the trial and appellate courts, I trust you would not depart very far from my concerns. Below are some ideas that can help the Judiciary, the Attorney General’s Chambers and the Bar see things better in so far as how are cases are running along.
Some Ideas
We have highlighted some issues with long judgments with zero dissent, unmoderated activism into structural concepts of the legal system, among other things.
Reserving my right to revisit, may I propose:
1. All Courts from High Court and above should write full grounds for all cases even if no appeal is filed.
2. All Appellate Judges in a Panel must write full grounds with no shortcuts, even if they are not dissenting.
3. Even apex court must write full grounds all the time.
4. All decisions are published and reported at a website that is easily accessible by the entire public with good user interface (not a clumsy and terrible one like the one for our Federal Gazette). Massive data and statistics are easily collated through this very system to assist research, criminology, judicial analysts, sociologists, and even product developers. The cost for maintaining this mammoth system for all courts in this country should be borne by the government. For fiscal sustainability, perhaps certain data can be sold for a high price to interested corporations, I don’t know. All data on all remand proceedings in every corner of the country should also be injected into the system. I believe the court has the data but maybe due to the size they find it hard to do much about it or to make sense of it or to make the most out of it.
I hope this will encourage transparency and therefore more focused and concise grounds of judgment. With such mammoth data, it becomes a valuable asset for policymakers and the judiciary itself for reform of the system. Insurers and many industries would be interested. Maybe with AI, they can even single out who is performing and who is not. Feed the data to the SPKP and the Judicial Appointments Commission.
Balancing Act
To help moderate the above suggestions, here are some more ideas below. Some of these may seem unrelated to the issue discussed, but they actually are affected:
a. If the Accused pleaded guilty, there is no need to write grounds whatsoever. The judge needs to record that the procedure for PG cases are complied. No grounds needed even for sentence, unless an order of binding over or some other uncommon order is given.
b. Single-judge appeal panels can hear appeals against sentence.
c. No more politician trials transferred to High Court. High Court only hears capital cases whether they are typical or high profile.
d. Only persons with at least 5 years litigation experience (meaning litigation lawyer, DPP or FC and excluding PKP and TP) may be appointed as trial Magistrates.
e. Enact jurisdiction to Pendaftar to hear and pass sentence on PG drugs cases and other lower-end cases.
f. Defence is called for all criminal trials. Abolish unsworn statements, but maintain sworn testimony and the right to remain silent.
g. The Prosecution is not allowed to appeal against acquittal. But defence is allowed to. So Prosecution must get it right the first time. This is fair since the trend of decisions imposes more burden on Accused upon arrest, and the trend also shows that the IO does not need to investigate the defence. Many people have been convicted because their defence was shut out by the IO who refused to investigate the defence (But please see the Court of Appeal decision Ooi Choo Hock).
h. Allow confessions but they must be videotaped and the entire videotape is exhibited end to end and in full view of the interrogation
i. We can maintain the penalty for non-disclosure upon arrest. But we require the police to exhibit the entire recording of a body-mounted camera (like those GoPros). If the police fail to maintain the camera or to record it properly, the police evidence is penalised.
Conclusion
Criminal cases are all about evidence. The fight is about adducing and not adducing evidence, the timing of adducing the evidence, choosing which issues to challenge and which to let go. This is what the style of judgments and the style of written submissions should return to. I hope this will give clarity to the law and moderate the proliferation of doctrines. Otherwise, I fear we are progressing in the wrong direction. We only need concise argumentation, abolish housekeeping and ritual recitations. Bring back the oral submissions.
[1] The Times, 20 August 1991, extracted from: http://www.austlii.edu.au/au/journals/NSWBarAssocNews/1991/33.pdf
[2] Lokendra Malik, Prof Yogesh Pratap Singh, “Lengthy Judgments, Unlimited Arguments”, 29 July 2021, Bar and Bench https://www.barandbench.com/columns/lengthy-judgments-unlimited-arguments