JellyPages.com

"Hidup Memerlukan Seribu Pengorbanan"

"Hidup Memerlukan Seribu Pengorbanan"

Monday, July 7, 2014

ADVERSARIAL SYSTEM IN MALAYSIA

6.0 ADVERSARIAL SYSTEM IN MALAYSIA
6.1 APPLICATION OF ADVERSARIAL SYSTEM IN THE MALAYSIAN SYARIAH COURTS
The law that we inherited today is a result of our colonial past being common English law and equitable principles. In recent times, however, efforts have been made to enforce Islamic Law amongst Muslim especially in the area of family law. Lately, the jurisdiction and powers of the Syariah Courts have been widened and increased and its structure improved so as to enable the Syariah Courts to act more effectively in enforcing Islamic Law. Together with the merits of the law in force and infrastructure to help in its enforcement, there is also the very important human element that plays a major role in the attainment of justice, i.e. the lawyers.
            In the Muwatta of Imam Malik, it is narrated that Ummu Salamah, the wife of the Prophet SAW reported that the Messenger Allah declared: “I am a human being too. You come to me disputing and quarelling. Perhaps some of you indulge in logic to prove your assertations and it may be that i give my decision on the strength of your arguementation. Should I, therefore, give one that which his brother is entitled to, he should not take it, for it would be as if I am giving him a coal of fire (Jahannam). The scholars of Islam have argued on yhe authority of the above hadith that parties to a dispute are entitled to be represented by counsel to present their case before the court, for the litigant himself may not be capable oe it is advisable for him do so.
            In the present adversarial system of law practiced in Malaysia, our judges hear and determine issues of facts and of law arising between contending parties presented in a form enabling judgement to be passed upon them, and when passed to be enforced by a process of law.[1]
            In order to ensure that judges in the civil and the Syariah Courts in Malaysia are able to deal with the cases that come before them justly and competently and arrive at a decision that seems nearest to justice and apt to be the best in the eyes of Allah, it is necessary that a lawyer, who appears before the court whilst resresenting his client’s case, must be hoonest and competent. Clearly, Malaysian Syariah Courts practicing adversarial system which is an adversarial system the lawyers duke it out verbally. They oppose each other and take their client's side.[2]

7.2 ADVERSARIAL SYSTEM SHOULD REMAIN PRACTICE IN MALAYSIA
Government
Opposition
Dispute is settled by independent judge which give public confidence. The Judge is not affected by his own emotion or personal thoughts towards the case. As the one who make decision, it is crucial to make sure that he is independent and free from any bias thoughts towards the specific case. The judge is called independent but he is actually bound by the system so that he won’t be too independent on his thought. The existence of “judicial precedence” helps in making judgment and prevent from any violation in any judgment made
Much emphasis is placed on legal argument incourt-skilled lawyers are very influential and highly regarded. As adversarial is a system based on an argument between two parties who plays the dominant/active role in a trial, skillful lawyer would have many advantage. So, evidence andarguments can be manipulated in order to win arguments in trial. The unfortunate party who can’t afford to hire a skillful lawyer would be at the disadvantage even though that particular party is innocence but as his lawyer isn’t as skillful as his opponent, this may result in his losing.
The evidence brought into the court is tested forits accuracy by the examination-in-chief, cross-examination & re examination of the evidence of each party. This facilitates the court trial as there isno excessive argument over invalid evidence. Casecan be settled in short period as trials did not takemuch of the time. system has been very helpful ineasing the process of the trial in court.[3]
Successful court action often expensive. The losing party has to pay for the entire court process’ fees.

The continuos trial helps to speed up there solution of the dispute for, justice denied is justice denied.
The significant delay in court proceedings is due to the loss of evidence and the non-availability of witnesses.
The function of a judge is to play a passive role and his duty is to conduct the trial, to observe there levancy of evidence and its discovery. The judge reserves comment until all evidence from both parties are heard. This makes the judge appear more neutral since judgments must be reserved until all the evidence is heard. He may not be able to interrupt during the presentation of evidence and witnesses’ interrogation but he may keep all the information in his mind to make judgment later.
Would give a burden to lawyers for carrying two roles.
Parties are the one who determine the issues and provide evidence to prove their claims. Active role of the parties in a trial, particularly the council who plays the dominant role. The individual is responsible for preserving individual rights. So, it actually depends on the individual him or herself whether to bring such issue to the court or not. As for the one who plays the dominant role in a court trial is the councils. As they will be representing you in rising issues and provide evidence as well as claiming damages. There is a collaboration between a person and his council.[4]

Limit the creativity of the judge as the existence of “judicial precedence” because judges can’t make their own decision.
Fused profession- lawyers are the advocate as well as the solicitors. This means, lawyers, are the ones who find the evidence and presenting them to the judge. This is better as the one who provide the evidence understands it clearly and thoroughly so there will be no miscommunication or misinterpretation of evidence. Lawyers will be better in his argument as for he is the one who really studied the case inside and out.[5]



No comments: