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"Hidup Memerlukan Seribu Pengorbanan"

"Hidup Memerlukan Seribu Pengorbanan"

Monday, July 7, 2014

INQUISITORIAL SYSTEM

4.0 INQUISITORIAL SYSTEM
4.1 INTRODUCTION TO INQUISITORIAL SYSTEM
IN
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial systemwhere the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems.[1] Also countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider "inquisitorial" misleading, and prefer the word "nonadversarial". The function is often vested in the office of public procurator, as in Russia, China, Japan, Germany and Scotland.[2] 

4.2 OVERVIEW OF INQUISITORIAL SYSTEM
In the inquisitorial system, the judge, in essence, conducts public inquisition/investigation of crime. The judge can question witnesses, interrogates suspects, orders searches for other or further investigations, and finally declare the verdict and decide on the penalty. Their role is not to prosecute the accused, but to gather facts to reach the correct verdict, and as such their duty is to look for any and all evidence, incriminating or exculpatory. When declaring verdict, the judge must also release the reasoning explaining the verdict. Therefore, any perceived fault in the judge's reasoning (due to logic, science or newly discovered evidence) is a ground for appeal by both prosecutor and defence. Also, in inquisitorial system, there is no such thing as plea. Even if the accused declare himself to be guilty of crime, the judge may declare the accused not guilty if the judge believe there is evidence to indicate that the accused is innocent.[3]
            In adversarial system, judges focus on the issue of the law and procedure and act as a referee between the battle between the defence and the prosecutor. Jury decide on the matter of fact. Neither judge or jury can question witness or initiate inquiry. While jury will declare verdict, the reasoning behind the verdict and the discussion among jurors cannot be made public. Therefore, the defence could make appeal, technically speaking, only on the procedural ground, such as failure of prosecutor to disclose evidence or fault in evidence presented at the trial. On the other hand, prosecutor in adversarial system cannot appeal against not guilty verdict.
            The inquisitorial system applies to questions of criminal procedure as opposed to questions of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil legal systems. However, some jurists do not recognize this dichotomy and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures.
            In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge to act more like an inquisitor than an arbiter of justice.[4]

4.3 ADVANTAGES OF INQUISITORIAL MODE OF JUSTICE
  1. The court plays substantive role in the trial to secure justice.
  2. Minor error in the procedure is ignored, if the purpose of justice is solved. Procedure is not held vital, ultimate justice is regarded as the goal.
  3. All the component of criminal justice system, i.e. the police, the prosecutor, the defense lawyer, the court and the accused must help to secure justice. So, the accused has no right to silence.
  4. Any distortion of evidence, dubious practice followed by the accused or by the lawyers can be easily detected with the effort of the court.


4.4 DISADVANTAGES OF INQUISITORIAL MODE OF JUSTICE
  1. Participation of the court in the inquisition of the case may lead it to biased attitude.
  2. Right to privacy of the accused is denied and that the accused is exposed to express everything which he need not express keeping in view of the merit of the case.
  3. The prosecutor or the police having separate law to deal with their conduct may misuse their power and is likely to exceed their authority, which they are not entitled to.
  4. Supremacy of law and equal treatment of the law for all segments of the society is not entertained.[5]




[1]) Stuart Sime. 2011. A Practical Approach to Civil Procedure. United Kingdom : OUP Oxford. Page 205.
[2]) Retrieved from http://en.wikipedia.org/wiki/Inquisitorial_system, 9 May 2014, 7.00 am.
[3]) Thomas A. Mauet. 2013. Trial Techniques and Trial. New York : Aspen Publisher. Page 123.
[4]) Retrieved from http://en.wikipedia.org/wiki/Inquisitorial_system, 9 May 2014, 7.40 am.
[5]) Retrieved from http://www.ksl.edu.np/cpanel/pdf/adversial.pdf, 9 May 2014, 8.15 am.

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