Faculty of Law

(FOL)

PIL 0012
Introduction to Law

Foundation in Law

ONLINE NOTES

Chapter 6

MALAYSIAN COURT SYSTEM

MULTIMEDIA UNIVERSITY (436821-T)

MELAKA CAMPUS, JALAN AYER KEROH LAMA, 75450 MELAKA, MALAYSIA.
Tel 606 252 3594 Fax 606 231 8799
URL: http://fosee.mmu.edu.my/~asd/
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ADVERSARIAL SYSTEM

• In Malaysia, the core concept of litigation is the adversarial system whether civil
or criminal.

• Adversarial system means a system which provides a contest between 2 people of

conflicting interests.

• For example, in a criminal case, it involves a public prosecutor and an accused

person and in a civil case, a plaintiff and a defendant.

• Function of a judge:

-To play a passive role

-To conduct the trial
-To observe the relevancy of evidence and its discovery.

• The truth in a civil or criminal case can be derived from the facts.

• The judge is not to say anything which might suggest bias to a party for example
by assisting one party.

• The parties are the ones who determine the issues and provide evidence to prove
their claims.

• This indeed shows the active role of the parties in a trial and particularly the
counsels who play the dominant roles.

• The control in the court refers to the advocates’ control because they are the
experts of the law retained by the parties in dispute.

• The counsels do not have any other objectives such as having interest in the case,
except to win it ethically and fairly.

• Counsels should not tamper with the witnesses or admit false evidences.

• Under the English ‘cab rank’ rule, the legal profession should comprise of
independent lawyers.

• Otherwise, the case would not be represented effectively in the court.

• The Lawyers, must not be controlled by any organisations or associations.

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• This rule has been adopted in the Malaysian Legal Profession Act 1976, but has
not been wholly accepted by the government, as there is S.77 of the Malaysian
Legal Profession Act 1976, which provides that the Bar Council may, with the
approval of the Attorney General make rules for regulating the professional
practice, etiquette, conduct of advocates and solicitors.

• This impliedly means that the Attorney General has the power to interfere with
the rulings of the Bar Council.

• However, in Malaysia, this rule is observed in the sense that a lawyer in Malaysia
is not permitted to work in a company or with anybody except a law firm in order
to avoid the lawyer from being controlled by the client.
• On the other hand, as compared to Malaysia, independence in the adversarial
system in England is greater.

• In England, a barrister is not allowed to form a partnership.

• Hence, the barrister there need not worry about the financial performance of the
firm which might lure him in doing acts unprofessionally in order to gain profit.

• The duty towards the system then overrides his own interest.

• In Malaysia, the advocate in the adversarial system is a fused profession, whereby

the lawyers are the advocates as well as the solicitors.

• On the contrary, in England, there are barristers and solicitors whereby the
solicitors are the ones who prepare the summary of facts and choose the
appropriate barrister for the client.
• The barrister will be the one who prepares the drafting of the pleadings and
conducts the presentation of the case in the court.

• Therefore, in Malaysia due to fused profession, there is no division between the

role of the advocates and the solicitors.

• The fact that the jury system has been abolished means that the counsels would
have to appear before a judge, who is an expert in the law.

• The judge would only deal with relevant issues as compared with the juries who
would incline to be more emotional in dealing with the case.

• For example, evidence which is true and relevant may sometimes be excluded as
it may prejudice the jury who in most instances, cannot differentiate anything

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adverse against the accused which may not show that the person is actually not
guilty.

• This development indeed has some significance to the mode of evidence tendered.

• In Malaysia, the use of Bahasa Malaysia in courts is a requirement under S.8 of

the National Language Act 1963/67.

• The use of Bahasa Malaysia also has some positive impact to the adversarial
system.

• The use of this language would be good in the examination of witnesses in most
instances may not have the ability in understanding English.

• The use of Bahasa Malaysia would help the public to understand the trial as the
presence of the public in the court is the illustration of the scrutiny of the court
system by the people.

• On the other hand, the use of Bahasa Malaysia in the courts may be less efficient
especially in the submissions of questions of law because most of the case laws
and law books are still in English.

• However, the language used in the adversarial system should not continue to be a
debate as the paramount importance in an adversarial system is justice.

• In order to obtain justice, a lawyer should be allowed to speak in the language

which he is comfortable with and application can be made to the court for the use
of English as there is a provision provided in the Act.

Advantages of the adversarial system:

i-Any evidence brought into the court is tested for its accuracy by the examination
in chief, cross-examination and re-examination of the evidence by each party.

ii- The dispute is decided by an independent judge which gives the public
confidence in the legal system.

iii-The continuous trial helps to speed up the resolution of the dispute for, justice
delayed is justice denied.

Disadvantages of the adversarial system:

i-As much emphasis is placed on legal argument in court, skilled lawyers are very
influential and highly regarded.

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n
The public seeks the best lawyers and they can in turn charge high fees.
ii- The experienced lawyers may gain advantages in the litigation process but not
for just reasons. Therefore, successful court action is often expensive.

iii-Sometimes, justice is out of the price range of those who cannot afford it.

iv- Not all evidence in a dispute may be presented in court unless the parties wish
to do so.

v-Sometimes the evidence may not be fully disclosed or shown, which affects the
judgment made by the court.

vi-The significant delay in court proceedings is due to the loss of evidence, and
the non-availability of witnesses.

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