Law 309 Chapter 8 Tribunals PDF

LAW 309 Chapter 8 TRIBUNALS PREPARED BY: IZYAN FARHANA ZULKARNAIN 1  (1) INTRODUCTION  Traditionally, the power to adjudicate belongs to the Courts  In modern times, the courts lost its monopoly on adjudicatory function and now shares it...

LAW 309 Chapter 8 TRIBUNALS PREPARED BY: IZYAN FARHANA ZULKARNAIN 1  (1) INTRODUCTION  Traditionally, the power to adjudicate belongs to the Courts  In modern times, the courts lost its monopoly on adjudicatory function and now shares it with the administrative bodies  A number of bodies has been established by the statutes outside the judicial system to decide on claims, controversies and disputes, not only between an individual and the department but also between two individuals  T/4, Tribunal: A special body established under the relevant law to settle certain types of dispute  A person sitting in the tribunal has power or authority to judge or decide issues in the disputes IZYAN FARHANA ZULKARNAIN 2  (2) CHARACTERISTICS It is an independent body, free from administrative. It decides cases impartially as between the parties before it It reaches a binding decision in relation to the case heard Its’ decisions will usually be reached by a panel of tribunal members rather than by a lone adjudicator or one person It will adopt a procedure similar to the procedure in the Court but much simpler and more flexible Its’ existence is permanent. It is established specifically to deal with a particular type of case, or with a number of closely related types of case. Will not be abolished after a decision is made IZYAN FARHANA ZULKARNAIN 3 (3) REASONS FOR GROWTH 1. Expansion in the functions and responsibilities of the administration 2. Preservation of our ordinary judicial system 3. Save time and cost IZYAN FARHANA ZULKARNAIN 4 i. Expansion in the functions and responsibilities of the administration  Socio economic activities increased. Legislation or laws are modified and new legislation or laws are enacted  Results in the increased number of disputes between an individual with another and between individual and the government agencies  As such, it requires machinery to adjudicate upon the disputes. If all disputes are left with judiciary, the judiciary will be overloaded with work. Disposal of cases will be delayed and slow down the administration process because administrator cannot work on disputed matters until it is resolved IZYAN FARHANA ZULKARNAIN 5  ii. Preservation of judicial system A normal judicial system are too technical, formal, rigid and tardy Not really suitable to adjudicate dispute arose from socio economic legislation as the issue normally involve small claims against administration and sometimes involve policies What is needed is an informal atmosphere, less technical and elaborate rules, procedures and evidences. It can be achieved through tribunal system instead of the Court system IZYAN FARHANA ZULKARNAIN 6 iii. Save time and cost A normal Court system requires lawyers and sometimes expertise in various disciplines. Eg. if the dispute is on tax, an accountant may be required to give opinion Very costly and requires more time before a case could be settled IZYAN FARHANA ZULKARNAIN 7 (4) STRENGTH OF TRIBUNAL Expedition STRENGTH OF Informal TRIBUNAL Expertise Independent Cheapness IZYAN FARHANA ZULKARNAIN 8  1. Expedition Normally cases handled by tribunal is a minor case and therefore, tribunal can settle the case in a short period of time, as it is not tied with the technical hearing procedure as adopted by the court of law 2. Informal Procedure In many cases, what may be needed are an informal atmosphere and procedure unencumbered by too many technical and elaborate rules of procedure and evidence which can possibly be achieved in a tribunal system IZYAN FARHANA ZULKARNAIN 9  3. Expertise  Member of tribunals are generally expert in their fields and fit for a specific hearing such as assessment and urban development. A judge is a generalist while adjudication of newly generated controversies needs some expertise in various other disciplines. So, the experts are needed to work out vague standards in the context of varied fact situations 4. Independent from Administration  Tribunals seems to constitute the best mechanism to settle disputes outside the Court system because they enjoy some elements of separation and independence from the administration and come very near to Court  Such independence is essential because in many cases, an administration is a party to the dispute. A concept of autonomy is important to give credibility to decisions by an adjudicatory body IZYAN FARHANA ZULKARNAIN 10 5. Cheap Cost to file a case to the tribunal is much cheaper than the Court of law and therefore, it is suitable for a small administration cases In short, cheapness, accessibility, expedition, expertise, freedom from technicality and flexible of approach are some of the reasons leading to the adjudicatory system outside the Courts IZYAN FARHANA ZULKARNAIN 11 (5) WEAKNESSES OF TRIBUNAL Franks Committee (British) was of the opinion that preference to decide should be given to the Courts unless there are special reasons which make tribunal more appropriate Reasons given are: 1. A tribunal is not as good as a Court in deciding disputes. Generally, a tribunal is not as independent as a Court. It has some links with the administration such as the government itself. So, at times, this may put its objectivity to test when the government itself is the party to dispute before it, as in many cases it is IZYAN FARHANA ZULKARNAIN 12 2. Tribunal members may not be legally trained, may not have much knowledge of law and may find interpretation of the parent statute a difficult exercise. They may not be trained in fact-finding procedures and may be tempted to base their decision on surmises and conjectures rather than on evidence 3. Tribunals often do not give reasons for their decisions; their decisions may not be published and people may not have any idea as to how a tribunal will resolve the cases coming before it IZYAN FARHANA ZULKARNAIN 13 4. When the tribunal members are too committed to the departmental policy, they may tend to disregard the merits of individual case in the interest of effectuation of departmental policies at all cost 5. Informality of procedures in a tribunal may degenerate into a complete lack of procedure resulting in whimsical decisions which is not based on law, facts or evidence IZYAN FARHANA ZULKARNAIN 14  (6) ADJUDICATORY BODIES IN MALAYSIA  Malaysia has a large number of adjudicatory bodies  So, among the important bodies are: Special Commission of Income Tax Industrial Court  Apart from adjudicatory bodies, the administration process in Malaysia also holds public inquiries. It is governed by various statutes for various purposes IZYAN FARHANA ZULKARNAIN 15  i. Special Commission of Income Tax  Set up under Chapter II of the Income Tax Act 1967, read with Schedule 5  There may be three or more Commissioner and one of them is to be appointed as the Chairman who presides at the hearing of an appeal. Chairman is a person having judicial or legal qualification or experiences  Special Commissioners are appointed by the YDPA out of the list of the names put up by the Minister of Finance  A taxpayer is obligated to submit his income tax returned to the Director General of Inland Revenue. If the assessee does not agree with the assessment, he can file an appeal within 30 days of the notice of assessment to the Special Commissioners of Income Tax IZYAN FARHANA ZULKARNAIN 16  Special Commissioners do not hear the appeal immediately as soon as it is filed  First, there will be a review undertaken by the Director General. It is only when no satisfactory conclusion is reached after the review as to the tax liability of the assessee that the matter comes up before the Special Commissioner  Although the power of review is formally vested in the Director General, he seldom reviews the cases personally and this function is also delegated to the subordinate officers  Commissioners have powers to summon witnesses and examine them an oath. They can summon any person to produce documentary evidence under his control  Special Commissioners have power to admit or reject any evidence whether admissible or inadmissible IZYAN FARHANA ZULKARNAIN 17  Parties may attend the hearing before the Special Commissioners either personally or through their representatives, advocates or accountants  Commissioners may also call expert witnesses to give evidence before them in respect of any hearing  Minister of Finance has power to make rules of procedure to be followed by the Commissioners  Ordinarily, the Special Commissioners are the final judges of the facts and the High Court in deciding the case stated may not go beyond the facts as found by the Commissioners  High Court has power to confirm, discharge or amend the order of assessment or remit the case to the Special Commissioners withIZYAN its FARHANA opinionZULKARNAIN 18 ii. Industrial Court Industrial Court is established under Part VII of the Industrial Relation Act 1967 President of the Court is appointed by the YDPA 3 panels of members, namely: Panel of independent persons Panel of persons representing employers Panel of persons representing workmen IZYAN FARHANA ZULKARNAIN 19  Members are appointed by the Minister after consulting such organization representing employers and workmen respectively as he may thinks fit  In order to decide a trade dispute, the Court is constituted of the President along with 3 members, selected by the Minister  A trade disputes may be referred to the Court by the Minister on his own motion if he is satisfied that it is expedient to do so  He may also make the reference on the joint request of: A trade union representing Employer or a trade union the workmen who are and of employers who is a parties to the dispute party to the dispute IZYAN FARHANA ZULKARNAIN 20  A party may be represented before the Court by any official of a trade union OR, with permission of the President, by a legal practitioner  President is to regulate the Court’s procedure subject to the Act and any regulations which may be made for such purpose  Industrial Court is bound to follow natural justice in its proceedings  Court can take evidence on oath  Decisions are made by a majority of votes and the President has a casting vote in case of equality votes IZYAN FARHANA ZULKARNAIN 21 Court is required to act according to equity and good conscience and the substantial merits of the case without regard the technicalities and legal form Industrial Court has power to refer a question of law to the High Court A private clause seeking to oust judicial review on the awards made by the Industrial Court is there A fundamental basis of the decision of the Industrial Court is a quicker solution of industrial disputes to achieve industrial peace IZYAN FARHANA ZULKARNAIN 22 (7) Public Inquiries Inquiries different from tribunal Tribunal makes a decision of itself, but in an inquiry the inquiry officer does not make any decision, he reports his findings to some higher administrative authority which takes a decision as to the action to be taken thereof IZYAN FARHANA ZULKARNAIN 23  Purpose of public inquiry: To get the truth To enable the decisions maker to be better informed about the state of affairs before making a decision To democratize the administrative process by way of giving opportunity to the public to express their objections to any proposed government measure IZYAN FARHANA ZULKARNAIN 24 Provisions in the Companies Act 1965 allows the government to appoint inspectors to conduct investigation into the affairs of companies Inspector may require the production of all books and documents pertaining to the affairs of the companies being investigated, he can examine on oath any officer or agent of the company Failure to comply with the inspectors directive is punishable as contempt of Court. It is necessary that the inspectors follow natural justice while conducting the investigation IZYAN FARHANA ZULKARNAIN 25 Commissions of Enquiry Act 1950 empowers the YDPA to appoint one or more Commissioners and authorise the Commissioner to enquire into: A conduct of any federal officer; A conduct or management of any department of the public service of Malaysia; A conduct or management of any public institution which is not solely maintained by the state funds; or Any other matter in which an enquiry would, in the opinion of YDPA, be in the public welfare IZYAN FARHANA ZULKARNAIN 26 Powers of the Commissioner are: to procure all necessary evidence to examine witnesses on oath to compel the attendance of any person to testify to admit any evidence whether written or oral which might otherwise be admissible in civil or criminal proceedings IZYAN FARHANA ZULKARNAIN 27 Commissioner and the witness are protected under the Act whereby: Commissioner shall not be liable to any suit or other proceeding for any act or thing done by him as a Commissioner All evidences given for the purpose of any inquiry under the Act shall be absolutely privileged so that the witness giving such evidence shall not be liable to any suit or other civil proceeding in respect of such evidence IZYAN FARHANA ZULKARNAIN 28  (8) FRANKS COMMITTEE  Franks Committee: Committee appointed in Britain in 1955  Appointed to make an in depth inquiry into the composition and working of the tribunal system  It made a number of suggestions to improve the system and several of these were given statutory form in the Tribunal and Inquiries Act 1957 (UK)  Most significant aspect of the Committee’s report is its approach to critical question of relationship between the tribunals and the administration  Committee emphasized that the tribunals ought to be regarded as a machinery provided for independent adjudication outside the department concerned IZYAN FARHANA ZULKARNAIN 29  Committee emphasized on 3 basic characteristics in the tribunal procedure i.e. Openness Fairness Impartiality  A concept of openness requires the publicity of proceedings and knowledge of the essential reasoning underlying the decisions  A concept of fairness requires the adoption of a clear procedure which enables parties to know their rights, to present their case fully and to know the case which they have to meet  Impartiality demands the freedom of the tribunals from the influence of department concerned with the 30 subject matter of their decisions IZYAN FARHANA ZULKARNAIN  Recommendation made by Franks’ Committee are: i. Appointment of the Tribunals’ Chairman and Members It is suggested that the Chairman of tribunals ought to be appointed by the Lord Chancellor and not by the Ministers concerned. Other members may be appointed by the Council on Tribunals Method of appointment would enhance the independence ii. Setting up of Council on Tribunals of the tribunal  Committee made recommendation to set up a Council on Tribunals to keep the constitution and working of tribunals under constant review  A working committee is needed so that it can examine certain necessities and act as the advisor prior to the establishment of new type of tribunals IZYAN FARHANA ZULKARNAIN 31 iii. Qualifications of the Tribunal Personnel  Committee felt that the tribunal Chairman should have legal qualification. Other qualifications shall be decided by the Council on Tribunals iv. Supervisory Role of Lord Chancellor  Committee also envisages a supervisory role for the Lord Chancellor over the proper functioning of the tribunals as a whole IZYAN FARHANA ZULKARNAIN 32  Committee further recommended: A combination of a “formal procedure with an informal atmosphere”  Tribunal should hold hearings in public, for public hearing were an important component of the concept of openness  Party to be allowed to be represented by lawyers in some exceptional circumstances  Tribunal to give reasoned decision and as full as possible  Most of the proposals put forth by the Franks Committee were implemented with some modifications by the Tribunals and Inquiries Act 1958  Council on Tribunals was set up which consists of between 10 to 15 members appointed by the Lord Chancellor and the Secretary of the State 33 IZYAN FARHANA ZULKARNAIN Functions of the Council are: To keep the constitution under review and working of the Tribunals as specified in Schedule I of the Act and from time to time, to report on their constitution and working To consider and report on such particular matters as may be referred to the Council with respect to other tribunals. A Council must be consulted before procedural rules are made for the tribunals. Council makes an annual report to the Lord Chancellor and the Secretary of the State, which is laid by them before Parliament 34 IZYAN FARHANA ZULKARNAIN THANK YOU IZYAN FARHANA ZULKARNAIN 35