• Federal constitution is the supreme law in Malaysia.
• It is the highest law which act as a guide for all other laws.
• It ensures that three organs of state (the legislative, judiciary, and executive) do not abuse their power.
• Law of Malaysia can be separated into two types of laws, which is written law and unwritten law.
• In Malaysia, legal solution that been passed-down by the past colonial which is the common English law and equitable principles.
• However, the effort has been made in enforcing Islamic law among Muslim.
• Hence, the Syariah Court which is different from the United Kingdom appears.
• It drives law like “Will of God” which contained holy religious text such as Al-Quran.
• Holy Bible is not applicable in the United Kingdom.
• There is no Syariah court in the United Kingdom, hence the difference between the councils and tribunals with Syariah Principles will be much different.
• Malaysia is practicing Constitutional Monarchy (Parliamentary Monarchy).
• The monarch is exercising their authorities on a written and unwritten constitution.
• There is different from absolute monarchy, which is monarchy act as non-party political head of the state under the constitution.
• Malaysia is the conference of rules.
• The role of Monarch (sultan) act as the head of the Muslim in the states except Penang, Malacca, Sabah, Sarawak and Federal Territories.
• In the legislation proceeding, if Yang Di-Pertuan Agong refuses the Royal assent, according to Article 44A Federal Constitution Act 1957, the Bill will become law automatically after 30 days it passed to Yang Di-Pertuan Agong.
• In Malaysia, the legal solution that we are practicing today is an adversarial system, which is inherited from colonial British.
• The United Kingdom consists of three types of legal systems.
• English law applies in England and Wales, Northern Ireland law applies in Northern Ireland, and Scots law applies in Scotland.
• The Supreme Court is the highest court in the land for all criminal and civil cases in England, Wales and Northern Ireland, for all civil cases in Scots law.
• It is established on October 2009 by replacing the Appellate Committee of the House of Lords.
• The United Kingdom is practicing Constitutional Monarchy (Parliamentary Monarchy) as well.
• For the Monarch in the United Kingdom, Royal assent is the final step required in the legislative process.
• Once a Bill is presented to the Monarch or representative, he or she has the following formal options:
• The sovereign may grant royal assent, thereby making the bill an Act of Parliament.
• The sovereign may delay the bill’s assent by using his or her reserve powers. (A power may be exercised by the head of state without the approval of another branch of the government) in near-revolutionary situations, thereby vetoing the bill.
• The monarch may refuse the assent by the influence of the advice of his/her ministers.
• United States is practicing inquisitorial system.
• It is used in some civil law system in which a judge or group of judges investigates the case.
• The legal system is where the court or part of the court is actively involved in investigating the facts of the case, as opposed to the adversarial system where the primary role of the court is to be an impartial referee between the plaintiff and defendant council.
• Inquisitorial system been implement in some countries with civil legal system instead of the common law system.
• Witnesses will be called before judge and jury. The judge’s jury will summon the witness under the judge’s jury and ask question for clarification without investigation.
• When judge decides whether the defendant is guilty or acquitted, he may discover the truth of the incidents to decide whether the defendant is guilty or not guilty.
• The court or part of the court is involved in investigating the fact of case.
• The judge control investigation of police and evidence collected used to prepare documents.
• All documents will be passed by different judge to the court.
• Lastly, the court will call witnesses to investigate the accuracy of documents.
Comparison between adversarial system and inquisitorial system
• For adversarial system, it is fair and less prone to abuse, as any room for the state of favor against the defendant is no allowed.
• The adversarial system allowed both parties to present witnesses and evidence to support their positions.
• Where they can cross-examine witnesses, carry out arguments and making evidence analyzation independently, which able to prove truth facts to the jury and judge.
• Inquisitorial system is a method of legal practice.
• Judges able to discover facts while instantaneously represents the interest of the state in a trial.
• In adversarial system, two or more parties collect their evidence and pass to a judge or jury.
• Which the judge or jury knows nothing of the litigation until cases has been passed by the parties to the decision maker.
• The goal of adversarial system and the inquisitorial system is to find out what the truth is.
• Adversarial system seeks the truth by pitting the parties against each other in the hope that competition will reveal it.
• Inquisitorial system seeks the truth by questioning.
• Adversarial system places a premium on the individual rights of the accused,
• Whereas inquisitorial system places the rights of the accused as second when searching for the truth.
• Both of them have the advantages which is the court plays a substantive role in the trial to secure justice, minor error is ignored if the purpose of justice is solved.
• The drawback is that the judge stand center of the process, which a worse judge will smashup the case and prevent vital facts from being investigated.
• Furthermore, as the inquisitorial system is primarily centered on discovering the truth, thus the result is that the cases are disposed of according to what actually happened rather than how capable the defense or what evidence the prosecutor decides to offer.
• In conclusion, both legal solution have their own effectiveness in maintaining the aim of justice. However, both system have also having a fairness and equality judgments and everything is not in perfect. We can only say that legal solutions which coincide with the people’s ideas of justice are more likely to be respected, obeyed and easily enforced.
• It is commenced by the plaintiff either by way of writ or an originating summons which always practicing in adversarial legal solution to resolve dispute.
• In Malaysia, current legal solution is regarded as oldest method of resolving disputes. “Litigation System” is the common legal solution in Business Law.
• Litigation is the act or process of bringing about or contesting a claim to the court.
• It’s costly, time consuming and unpredictable as it usually encompasses lengthy process, voluminous documentations, procedural and adversarial in nature.
• Disputation which involves big complex matter often delay in settlement and result costly.
Alternative Legal Advice
• It has become increasingly popular as a supplement to the ordinary legal solutions because the inefficiency of litigation.
• Current alternative legal advices that available in Malaysia are mainly mediation and adjudication.
• In comparison to the traditional legal solutions, alternative legal advices are much faster, less procedural and cost effective.
Malaysia Mediation Centre (MMC)
• In 1999, it had been established under the auspices of the Malaysia Bar Council with the aim to promote mediation as a mean of alternative dispute resolution and to promote a proper avenue for successful dispute resolutions.
• In mediation, a third party assists disputants to communicate so as to work through an agreement.
• It involves discussion between parties, followed by meeting and ultimately a voluntary contractual agreement as an end result reached by the parties.
• Mediation Bill 2012 aims to promote and encourage mediation as a method of alternative dispute resolution by providing for the process of mediations.
• Although alternative legal advice have a pro comparing to traditional legal solution, nevertheless it still have weaknesses.
• For instance, Mediation do not necessarily lead to an outcome because they have no binding power.
• In comparison, this is more adjudicative method with much greater flexibility.
• The disputing parties decide how to shape their arbitration by selecting arbitrator or arbitration panel and determining the date of hearing of dispute.
• It is a mean of settling commercial disputes by an independent third party i.e. arbitrator.
Section 9 (1) Arbitration Act 1995
• It defines “arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen on which may arise between them in respect of a defined legal relationship, whether it is contractual or not.
• The foundation for development of alternative legal advice procedures in Malaysia is being laid down especially with the coming into effect of Arbitration Act 2005, nevertheless the traditional legal solution still plays an important role in covering the drawback of alternative legal advice.