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"Hidup Memerlukan Seribu Pengorbanan"

"Hidup Memerlukan Seribu Pengorbanan"

Monday, July 7, 2014

ADVERSARIAL SYSTEM

3.0 ADVERSARIAL SYSTEM
3.1 INTRODUCTION TO ADVERSARIAL SYSTEM
The adversarial system (or adversary system) is a legal system used in the common law countries where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case. It is in contrast to the inquisitorial system used in some civil law systems (i.e. those deriving from Roman law or the Napoleonic code) where a judge, or group of judges investigates the case. The adversarial system is the two-sided structure under which criminal trial courts operate that pits the prosecution against the defense. Justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.[1]

3.2 HISTORY OF THE ADVERSARIAL PROCESS
Some writers trace the process to the medieval mode of trial by combat, in which some litigants, notably women, were allowed a champion to represent them. The use of thejury in the common law system seems to have fostered the adversarial system and provides the opportunity of both sides to argue their point of view.[2]

3.3 ADVANTAGES OF ADVERSARY MODE OF JUSTICE
  1. It insists upon strict observance of procedural law. Due process of law is regarded as the most appropriated method to attain justice. Violation of procedure leads to exclusion of evidence in the court.
  2. The position of the court is regarded as that of an umpire. Both parties contest in the court. The court is to see whether the game being played before it is fair and conducive to justice or not.
  3. The representation of lawyer from both sides is indispensable.
  4. The accused has right to silence. He need not give evidence from his side. Prosecution must prove the guilt beyond reasonable doubt. The accused may claim benefit of doubt. Individual's right to privacy is best preserved under it.[3]


3.4 DISADVANTAGES OF ADVERSARY MODE OF JUSTICE
  1. The accused does not help the police. The police must work on his own strength against the accused.
  2. Too much insistence upon procedure some time may lead to acquittal of the accused and impunity on the offence.
  3. The judge in the court as an umpire is a misleading conception. It is desirable to expect that the judge is there to do justice and that justice is done by whatever means it is possible.
  4. Contest on technical error in the court is possible. The court is helpless to correct it.

The police sometime may not be able to find sufficient evidence against the accused. He cannot expect any help from the accused. This leads to dropping-out of the case.[4]



[1]) Stuart Sime. 2011. A Practical Approach to Civil Procedure. United Kingdom : OUP Oxford. Page 202.
[2]) Retrieved from http://en.wikipedia.org/wiki/Adversarial_system, 7 May 2014, 5.00 pm.
[3]) Retrieved from http://www.ksl.edu.np/cpanel/pdf/adversial.pdf, 7 May 2014, 5.30 pm.
[4]) Retrieved from http://www.ksl.edu.np/cpanel/pdf/adversial.pdf, 7 May 2014, 5.30 pm.

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