Criminal Justice System and the Victim (Draft of introduction)

Macmillan English Dictionary (2002) defined victim as “someone who has been harmed, injured, or killed as the result of a crime” and “someone who has been affected by a bad situation such as accident or illness” (p.1595). In the legal context, the word victim is generally applicable in criminal law. In other legal areas, the synonym of victim could be plaintiff or petitioner.
Stark & Goldstein (1985) defined victim as anyone who suffers loss or injury as the result of an act that constitutes a crime…This includes individuals, as well as corporations, relatives, and dependents of persons who themselves are injured or killed during the course of a crime and even Good Samaritans who may be harmed during the act of preventing the perpetrator from leaving the scene (p.11). Thus, victim is one who suffers from criminal behavior. Such victims shall include a person who directly suffers the crime and their next of kin.
The relationship between victim and crime necessitates their entrance into the criminal justice system (CJS). The criminal justice is the system of practices, and organisations, used by national and local governments, directed at maintaining social control, deter and controlling crime, and sanctioning those who violate laws with criminal penalties. The subject of criminal justice is, of course, primarily concerned with the enforcement of criminal law.
Koh, Clarkson and Morgan (1989) stated that the criminal law could be loosely defined as a body of rules prohibiting certain conduct on pain of punishment. The essence of the criminal law is that when it is alleged that someone has committed the prohibited act it must be established, using rules of criminal procedure designed to ensure fairness to the accused, that he did not commit the alleged act or cause the forbidden harm and had no legally recognized excused or justification for what he did. Once liability is established the accused becomes liable to punishment by the state, the type and level of such punishment varying with the seriousness of the crime committed (p.15).
Based on the above definition of criminal law, a victim is not a party to a criminal proceeding and lack legal standing (locus standi) to be heard with respect to prosecutorial decision. In other words, the victims’ legal status is neglected, insufficiently protected, and their position are passive and weak. They were the forgotten actors in the criminal justice system. They were only regarded in extracting evidence admissible in court. The wrong committed by the accused is viewed as a social wrong and not a wrong against the victim. The victim has little input in the judgment of the court and seems to have little knowledge or comprehension of what is happening in their case (Stark & Goldstein, 1985; Schneider, 1982; Davies, 2007; Sanders, 2002).
Therefore, in CJS the victim is at best, a mere witness or object. According to Sanders (2002) and true to the definition of criminal law, the “police and prosecution do not prosecute ‘for’ victim but rather prosecute for the state… Victims are simply citizens who may or may not be used as witnesses, which is again a matter wholly for the prosecution” (p. 201) to decide.
Closer at home, there is no specific legislation governing victims’ rights in Malaysia. In Criminal Procedure Code there are several sections which regulate payment of compensation towards victim. On the other hand, Domestic Violence Act 1994 and Child Act 2001 govern victims’ rights for specific offences such as domestic violence and child abuse. Whereas, in Penal Code there are twenty chapters that list down various offences. This truly reflect that the above discussion represent the status of victim from the most advanced nation to advancing nation like Malaysia.
Consequently, this paper decides that the criminal justice system disregard victims’ rights because it forbade direct participation of victim in the proceeding, neglect existing rights of the victims and provide inadequate governing laws on victims’ rights

Welcoming IIUM ADR Society blog

I would like to use this opportunity to congratulate whom it may concern on the publishing of the ADR blog:
ADR Society, IIUM
iiumadrsociety.blogspot.com

The Malaysian Tribunal for Consumer Claims as Alternative Disputes Resolution.

Generally, the function of adjudicating disputes belongs to the court. However, the expansion in the functions and responsibilities of the administration and the need of an expert to deal with specific area of administration has put an end to the monopolization of courts as sole adjudicatory body and give rise to administrative adjudication. As the result, adjudication became a power exercised by the administrative bodies in its quasi-judicial capacity. Tribunal is adjudicatory body established to exercise this quasi-judicial function. Tribunal has been recognized as a method of alternative dispute resolution (ADR) such as arbitration, negotiation, mediation and the ombudsman.[1]

Tribunal does not only exist through a particular statute. It may also be established under constitution i.e. Judge Tribunal (Article 125) and Land’s Tribunal (Article 85). There is also domestic tribunal that was established under a constitution of a particular organization, for example, tribunal established under University Malaya Act. However the main focus of this writing is statutory tribunal namely the tribunal for consumer claims (TTPM). It is a statutory tribunal because it was established under a statute i.e. Consumer Protection Act 1999 (CPA) and its jurisdiction is confined to the matters that are prescribed by such statute. The original or initial function of TTPM is hearing and determining claims lodged by consumers under the CPA. A consumer[2] can lodge a claim with the Tribunal claiming for any lost suffered on any matter concerning his interests as a consumer under this Act.

The primary objective of establishing the tribunal is to provide an alternative channel of facility, apart from the courts, for a consumer to claim for any loss suffered (in respect of any goods or services purchased or acquired) in a less cumbersome and speedy manner and at minimal cost[3]. Before the establishment of the Tribunal, all disputes between a consumer and a supplier or manufacturer had to be brought before a civil court which often involves complicated procedures, high costs and is time consuming.

According to section 86(1) of the CPA, the appointment of members of the tribunal is by the Minister. The members must be legal practitioners or persons who have held government positions equivalent to first class or second class magistrates such as State Secretaries and Under Secretaries[4]. The Tribunal and its authorized personnel enjoy legal immunity in the performance of its official duties. According to s. 121, no action or suit can be instituted or maintained in any court against the Tribunal, its members or a person authorized to act for or on its behalf “for any act or omission done in good faith” under the Act[5].

In harmony with the spirit of ADR, the tribunal will adopt procedure akin to the court of law however it is not subject to rigidity as practiced in the court of law. Nevertheless, the tribunal must comply with the rules of natural justice i.e. right of hearing, rule against bias and reasoned decision. The procedure in TTPM are provided in Part XII of the CPA as well as the Consumer Protection (The Tribunal for Consumer Claims) Regulations 1999 which were made by the Minister pursuant to Section 122 of the Act. Subject to this Act and the Regulations mentioned above, the Tribunal shall adopt such procedure as it thinks fit and proper[6]. The tribunal is also not bound by precedent developed in the court of law. Furthermore, according to section 108 no party shall be represented by an advocate or solicitor during a hearing before the Tribunal and each party to a hearing shall conduct its own case at such hearing.

In the spirit of natural justice, the tribunal practiced reasoned decision. The decision of tribunal is known as award. Section 114 stated that the tribunal in all its proceedings shall give the reasons for its award. However, the Tribunal unlike ordinary courts is not enjoined by law to deliver written reasons. It was held in Hazlinda bte Hamzah v Kumon Method of Learning Centre[7] that ‘the section does not say that the reasons must be in writing. Nor does it fix any time limit for the delivery of reasons. Having regards to the general scheme of the Act, it is sufficient if the tribunal gives oral reasons.

An award (and every agreed settlement recorded by the Tribunal) is final and binding on all parties to the proceeding. It is deemed to be an order of Magistrate’s Court and enforceable accordingly. To enforce the award in the Magistrate Court, the Secretary to the Tribunal is required to send a copy of the award to the Magistrate Court having jurisdiction in the place to which the award relates or in the place where the award was made. The Magistrate Court will cause the copy to be recorded[8].

It will be against the spirit of the ADR if every decision of the tribunal is subject to judicial review and the courts had agreed with this concept. Gopal Sri Ram JCA in Hazlinda bte Hamzah v Kumon Method of Learning Centre[9] said that “being a specialist body, the tribunal has been conferred with extraordinary powers to do speedy justice for consumers. As such, its awards should not be struck down save in the rarest of cases, where it has misinterpreted some provision of the Act in such a way to produce an injustice”.

To conclude, perhaps it is significant to quote Gopal Sri Ram JCA in Hazlinda bte Hamzah v Kumon Method of Learning Centre[10]:

“The jurisdiction of the Tribunal is limited to hearing claims not exceeding RM25,000 ( s 98) and proceedings before it are commenced by lodging a claim with it in the prescribed form ( s 97) within three years of the claim accruing ( s 99(2)). Parties are entitled to attend and be heard (s 108(1)) but are not entitled to legal representation (s 108(2)). The Act in s 109 requires the hearings of the Tribunal to be open to the public and by s 110 empowers the Tribunal to take evidence and 'to generally direct and do all such things as may be necessary or expedient for the expeditious determination of the claim’ … s 112(1) of the Act requires the Tribunal to make its award 'without delay and, where practicable, within sixty days from the first day the hearing before the Tribunal commences'. The Tribunal has very wide powers. These are to be found in s 112(2) which, among other things, enables the Tribunal to direct the payment of money or to direct the refund of the consideration paid for goods or services or to direct payment of compensation or to vary or set aside a contract wholly or in part. Its powers are exercisable even in the event that the party complained against fails to appear at the hearing (see s 111 of the Act.)….”

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[1] Consumer Redress Mechanism in Malaysia: Prospects and Challenges, Assoc. Prof. Dr. Naemah Amin, (2007) 15 IIUMLJ 231, page

[2] The term ‘consumer’ means a person who : a) acquires or uses goods or services of a kind ordinarily acquired for personal, domestic or household purpose, use or consumption; and b) does not acquire or use the goods or services, or hold himself out as acquiring or using the goods or services, primarily for the purpose business

[3] TTPM Handbook Published by Tribunal for Consumer Claims Malaysia, November 2006.

[4] Wu Min Aun, Consumer Protection Act 1999: Supply of Goods and Services, 2000, Pearson Education Malaysia Sdn. Bhd, Petaling Jaya, page 81.

[5] Ibid, page 81.

[6] TTPM Handbook Published by Tribunal for Consumer Claims Malaysia, November 2006

[7] [2006] 3 MLJ 124

[8] Wu Min Aun, Consumer Protection Act 1999: Supply of Goods and Services, 2000, Pearson Education Malaysia Sdn. Bhd, Petaling Jaya, page 86.

[9] [2006] 3 MLJ 124

[10] Ibid.

s as Alternative Disputes Resolution.