While lawyer Zulkifli Nordin concedes that he may not be very good in presenting oral arguments in court, he still relishes every opportunity to improve his persuasive skills.

Unfortunately, such opportunities are becoming rare these days because many judges are now asking for written submissions instead.

"Nothing beats oral submission. It is one of the best things for a legal practitioner. But unfortunately the thrill is often taken away from us... we are now forced to press our case in a very boring manner," said Zulkifli, who has been practising for 16 years.

His complaint is not new. Other lawyers - both junior and senior - are known to have openly criticised the switch from convention.

During a forum last week on 'Rights to Expeditious and Fair Trial', organised by the Human Rights Commission of Malaysia, lawyers aired their grouses about this, claiming that this is one reason why trials run into delays.

"How can we have an expeditious trial when the judge postpones a case for a month, so that we can prepare written submissions and then postpones it for another month for the replies? After all that, to our horror, the judge asks for a summary of our written submissions!" said a senior lawyer who was among those who spoke up during the forum.

Another pointed out that the practice had been bearable in the past when it was limited to cases before the High Court and the Appellate Courts.

"But now we find ourselves burdened with preparing written submissions for simple applications before junior judicial officers like senior assistant registrars (SAR) and magistrates. This is upsetting," he said.

Rampant practice

Former Bar Council president Kuthubul Zaman Bukhari said preparing written submissions has become an issue only of late - and because the request is becoming unnecessarily rampant in the lower courts.

"It was not a problem for us. But lately. we are being asked to write our arguments for simple cases. Because of the increasing number of complaints, we have spoken to the Chief Judge of Malaya. We were promised that the matter will be looked into."

However, Zulkifli said lawyers themselves could put a stop to this 'ludicrous' development.

He related an experience when he argued with a SAR who had told him to submit a written submission for an application to amend his pleadings.

"It was a routine application and I insisted on submitting orally. When the SAR refused, I challenged him, stating that there is no law that can compel me to present my arguments in a written submission. After some exchange of words, the officer relented."

Lawyers who are not as bold have no choice but to accede to such requests so as not to irritate the court.

"I don't want the judge or the SAR to get angry just because I refuse to prepare a written submission. I would never risk putting my client and his case in jeopardy," said a young lawyer who declined to be named.

"Maybe because I am still new in the field, so I just do it although I am not happy about it."

'Open to abuse'

The requirement of written submissions can also be open to abuse, as it allows judges and junior judicial officers to push the bulk of the work to lawyers.

"When they are too lazy to want to record our arguments, they have us write it down for them. When they are too lazy to read the law, they make us put all the precedents on a silver platter so that they don't have to go through volumes of law books," asked a lawyer who requested anonymity.

"It all boils down to credibility. How can we respect the bench (if this goes on)?"

A more shocking allegation is that the practice lends to plagiarism. A former legal practitioner related how his written submissions was used "wholesale" by a High Court judge as the judgment.

"At the end of the trial, he asked lawyers to prepare written submissions. So I did. Imagine my shock when I read his judgment. It was all mine...the judge only changed things here and there, and stamped his name, voila, he had a judgment. I can't complain because he ruled in my favour!

"Besides, I prefer to look at the bright side, the judge took my work because he was impressed with good work."

There are plus points to written submissions, because this allows lawyers to present their case at length and in order, without being bound by time constraints.

Lawyer Edmund Bon said he sometimes asks for time to prepare written submissions to complement his arguments in court, especially when complicated issues are involved.

"I think written submissions are good when you are arguing complicated matters like judicial reviews, where you're touching on constitutional matters, and need to refer to volumes and volumes of precedents and different jurisdiction," he said.

More cases

High Court judge James Foong - well known for his punctuality and articulate judgments - managed to shed some light on what happens at the other end.

He said judges have to balance what little time they have with cases that seemed to be increasing by the hundreds every year. One way to ease their burden is through written submissions.

The situation is not helped by lawyers who keep dreaming of the good old days where judges have the luxury of hearing lengthy arguments without qualms.

"The good old days are over. Cases have increased by the hundreds. For each case, you need to get to the root of the problem and what do you do? In order to read the affidavits, they are by volumes! Why not get a summary of it? One way is through written submissions," Foong said.

"Secondly, written submissions have a good effect in the sense that you can delay reading them or reading them at a time that is suitable to you rather than a fixed time where you have to hear the lawyers.

"The third thing is that - please do not forget - lawyers are long-winded! For certain reason, they tend impress (matters) upon you as if you have not heard it before. If you have been long on the bench like me you know exactly what is coming...especially now when judges divisionalise (to hear certain type of cases - land matters, defamations injunctions)."

He said that having lawyers write their arguments also allow judges to take home their work. With the volume of cases filed, judges are forced to extend their work long after office hours.

"We not only have to hear the cases and judge them but we also must prepare the written judgments. With written submissions, it is easier for us to refer to the arguments. So don't forget that when you finish the trial, it is not over for us. There is more to be done," he said.

Staff shortage

Foong also revealed that the shortage of officers is also one of the reasons why requests for written submissions have become rampant.

"This reminds me of an incident where I was asked to give a lecture to officers who were just drafted in the judicial legal services and some to the bench. I gave a lecture to them and lo and behold, the next day one of the girls came to my court as my registrar. She had just graduated has not even gone for the graduation ceremony... but we are short of staff that we have no choice.

"So can you imagine this poor girl coming to work and the next day sitting in an application to amend the pleadings, when she doesn't even know the most basic thing. So what she does is to ask for a written submissions, reads through it or consults one of her colleagues."

Despite the favourable attributes, many lawyers are of the view that written submissions should never take precedence over oral presentation as lawyers in Malaysia stand to their advocacy skills.

After all, a good lawyer is not only an expert in the law but also a master of the art of persuasion, using words as tools.

Bon feels that both the bench and the bar must preserve these virtues.

"(This is) To improve the skills we need to argue the case off the cuff....persuading the judge while you are on your feet," he added.

"When everything is on paper, it will be advocacy by essays. It will come to that stage if we are not careful. It will just take the life out of the profession."

ARFA'EZA A AZIZ is a member of the malaysiakini team.