Have you ever wondered why does the role of our judges differed from other countries? I believe many are familiar with media portrayal of how judges work in K-dramas such as in the 16 episodes of Law School series and a popular Juvenile Justice series. It is portrayed that the judges are the ones who investigate the case extensively to the point of the power to gather all the evidences and conducting all the inquiries including checking all the facts of the case lies in the hand of the court, especially the trial judge. The role of the trial judge here is to engage and participate actively in a case at hand by determining what witnesses to call or not to call and the order in which they are to be heard. This kind of system also shows that the role of the counsels or lawyers is passive. We call this system as an Inquisitorial System which is originated from the medieval period, an adjudication method developed by the Catholic Church which requires the witnesses to take an inquisitorial oath administered by the judge. Currently, this system is applied by many Europian countries such as France and Italy.
As opposed to the practice in Malaysia, we adopt an Adversarial System that is derived from Common Law countries such as England and Wales. How is this system different from the other? The only active parties in this system are the prosecution and the defence. Meanwhile, the sitting judge will be overseeing the whole process of an open competition between the two. Our practice is the prosecution and the defence will put forward all the facts, evidences, witnesses, issues, laws and references to the sitting judge for their case respectively and at the end of the day, the judge will pronounce a judgment depending on the hearing, or on the basis of examination and evidence tendered in court throughout the whole process. The judge is to ensure that the proceedings are carried out and disposed fairly in a just manner within the four walls of law.
To put into a perspective, either the former or the latter system both have its own advantages and disadvantages. There is no exhaustive system ever created on Earth. Nevertheless, over centuries every system has evolved and improved as it owes an allegiance to a higher cause; that is a cause of truth, justice and remedies sought by the aggrieved parties.
Author : Nur Farihah Binti Syahriza, Pelatih Dalam Kamar.
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