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Disadvantages and Challenges of the Civil Justice System Malaysia

Essay by   •  February 25, 2018  •  Research Paper  •  1,043 Words (5 Pages)  •  287 Views

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The statement above is with regards to the disadvantages and challenges of the civil justice system which had led to the introduction of judicial precedence and rules of equity.

First and foremost, Malaysia is under the common law system which is the mirror of United Kingdom’s system as our country had once colonized by the British. Judicial Precedent and Rules of Equity had introduced in this system. There are two type sources of law in the common law system which is civil law and criminal law. Civil justice systems generally about all the institutions and processes, judicial and extrajudicial which involve in the civil dispute. From the question above, we will more emphasis on the civil law as it enforces to protect the right, duties and help to resolve disagreement of individuals towards each other as seen Contract law, Partnership law and Sales of Goods Act. The legal action is initiated by one person which referred as plaintiff toward another which referred as the defendant. The objectives of the civil justice system are to give citizens solve legal problems rapidly, fairly and affordable.

In the civil justice system, it is obviously shown that this system has the weakness of overwhelming load of cases, expensive trials, insufficient of legal aid and delay. As Malaysia is under common law system, it introduced on the judicial precedent which the principal base on the view of the current cases in courts will have to follow the previous decision of the court. It only satisfied when the facts of the current case are similar to the previous case and if the hierarchy of the courts permits it to do so. Hence, it would result in time-consuming and delay as every decision have to base on the previous cases. If there is an error happen in the decision of Court in the previous cases, it will take time for the higher court to overrule the previous cases and result in delay especially in Appeal cases which held in Court of Appeal. Besides, if the facts of the previous cases are massively different from the current cases, it would require the court to distinguish between the current cases. For instance, the contract case in the year 2016 involves a minor but the precedent although is a contract case involves a major, this means that the court needs to distinguish it from the current cases as the fact is different. The delay in waiting for the trial would be long or short and it depends on the arrangement of the court as per 3 years for High Court or 19 months for the Court of Appeal.

Furthermore, the civil court is expensive and bring disadvantages of court cost might more than the amount being claimed. The cost of the cases it depends on the type of writ that the lawyer prepared such as divorce cases will cost RM5000, can even go up to RM50,000. Besides attorney fees, the plaintiff will also need to responsible for filing fees, copying fees, expert witness fees, court reporter fees, transcripts and many other costs along the way to trial. Regardless of when the plaintiff won the case, he might expect to be able to recover all of the following costs as part of the judgement he obtained against the defendant but it cost a lot before he wins the case and sometimes the claimed amount is not adequate to cover the amount paid previously.

Other than that, the civil court has the threat of inadequate judges as the civil justice system is more adversarial rather than being inquisitorial which mean that the Court is more a passive recipient of information. Inquisitorial referred to the courts are more active and is more involved in the case itself, whereas adversarial is the opposite from it so there might happen some human error. The court makes decision-based on the information of writ and the evidence which collected from Public Prosecutor, as the court passively receives the information of cases so they might mislead by the lawyer of the defendant in regards on some debate of wrongdoing.

In regards on the recommendation of the problem of time-consuming and delay will be the court could try to specific on time limits, it has arisen as a special feature of process reforms across jurisdictions as it could minimize judicial delay effectively as seen in the country like the United Kingdom and Singapore. Besides, the court should stop giving the permit to delay suit or time petition indiscriminate as justice delay is justice denied.

Then, the law has become the hostage of one certain class of citizen who is the one with the rich background. Hence, in order to protect the citizen who has lower consuming power, the court should decrease the civil court fees. As a recommendation for this, increase competition and reduce regulation of lawyers in order to improve access to lower level court. Other than that, the court could publish some organization which can settle down daily hearing fees in order to help average background family who needs legal help, but the applicant should meet some requirement before they apply.

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