Apex court can act on written submissions without oral ones

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THE authorities are clear, and the lawyers are right. The Federal Court can make a ruling even if there are no submissions from former prime minister Najib Razak’s counsel.

Then Court of Appeal judge Abang Iskandar Abang Hashim in a 2018 case of Mohamad Salleh Ismail & Anor v Nurul Izzah Anwar & Anor said: “Submissions, whether they be oral or written, play an important role in assisting the court in appreciating the evidence and the legal principles in play in a case. But submissions, be they written or oral, are built upon the available evidence or materials already before the trial court. 

“They put into context the respective cases for the litigating parties and how they would present their perspectives in order to convince the court in order to get a favourable decision. No amount of submissions, be they written or oral, amount to evidence.

“There is therefore nothing in the submissions that the court did not already hear during the course of the trial. That said, there are no express legal provisions that have exalted the position of oral submission such that it must, without fail, be extended by the court to counsel in all cases.

“Rather, it would depend on the particular judge whether any submission needs to be filed by any party at the end of the whole case before a decision can be made. In some cases, the need for any submissions may not be relevant at all. 

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“Indeed, even after directing parties to file written submissions and for them to submit orally, there is nothing to prevent the court from changing its mind and to proceed on only the written submissions to decide even without the ‘benefit’ of reading written submissions or hearing oral submissions.

“In short, it would suffice for the court to act on written submissions only, in the absence of oral submission. Indeed, they may amplify the effect of the application of certain legal principles which may be in play. As such, nothing much can turn on the lack of oral submissions having been heard from both counsel before the learned trial judge came up with her decision.”

With such clarity, there is no more succinct statement on the legal position. 

Abang Iskandar Abang Hashim is currently Chief Judge of Sabah and Sarawak and one of the five judges in the panel of the apex court panel hearing the final appeal of Najib in the SRC International Sdn Bhd case. – August 21, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.