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.)….”
[1] Consumer Redress Mechanism in
[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
[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
[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.
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