Thursday, November 6, 2008

Adversarial System v. Inquisitorial System

The two most prominent legal systems are the adversarial and inquisitorial system. The judge in the former system decides upon submission and evidence adduced by counsels. The latter system sees that the judge takes active steps in the building of the case. Malaysia adopts the adversarial system. Google it for more info.

I realized now why I almost flunked my professional practice paper when I was doing my final year in law school. The question was like the above title.

I thought (back then) that in an adversarial system, the judge cannot ask any question. He just accepts the submission and evidence adduced before him and decides at the end of the case. Since in the law journals, I always read how judges actually probed and questioned the witnesses during trials, then Malaysian legal system is actually inquisitorial in nature.

Little did I realize that even in an adversarial system, judges can ask certain question during examinations. But it must be done properly, judiciously and fairly. There can be no leading questions. If there are, and if the judge relied on it for his decision, it could be a valid ground for appeal. If the counsel is smart, he won’t object to the judge’s question and use it as ammo for his appeal. A sleazy and tacky tactic.

Oh well, blog adjourned.

1 obiter dictum:

amicus curiae said...

all for justice.

even an observing lawyer (unrelated to a trial misalan) can interrupt to submit a point of law as an amicus curiae i.e friend of the court.

like im doing now, dengan izin tuan

p/s: you linked me twice.I'm one person. :P