INTRODUCTION
Tribunal plays a
very important part in modern government and they deal with a wide diversity of
matters (Peter Cane, 1986). Outside the ordinary courts of law there is a host
of special statutory tribunals with jurisdiction to decide legal disputes. They
are one of the by-products of an age of intensive government, and in particular
they multiply under the welfare state (H.W.R.W., 1971). Nowadays, public
administration deals with many public complaints and claim such as
dissatisfaction on the administration of public services. Because of public
complaints and claim, government established an institution or agency to refer
and resolve these complaint and claims. That is because the Tribunal
Administrative has been established for adjudication of these disputes.
In
addition, court is a place where the any conflicts were been resolve. These
conflicts include the conflicts between any individuals, conflicts between
individual and government, and the case or problem that people who commit the
big or small crime. Administrative tribunals actually were created to increase
access to justice for citizens in their dealings with the public
administration. The development of administrative tribunal of this country
actually already has gained many critics. Administrative tribunals are bound by
fewer rules of evidence and procedure than other tribunals. Also, the rules
that do exist are much more flexible. In the majority of cases, administrative tribunals
determine their own rules and the regulations. Many administrative tribunals are
connected to a governmental body. However, by law, every administrative
tribunal has to be autonomous and independent from any influence, including any
that might be exerted by the government. The main of this assignment are
explain the functions of administrative tribunal and its advantages, and
explain the process in administration tribunal.
DEFINITION OF ADMINISTRATIVE
TRIBUNAL
Administrative
Tribunal is defined as a person or body of persons having to hear and decide
disputes so as to bind the parties. According to Oxford English Dictionary
(2010), tribunal defined as a type of court with authority to deal with a
particular problem or disagreement. In other hand, the term ‘administrative’
before ‘tribunals’ may indicate that tribunals are associated with, or are part
of, the administration, or they decide only such disputes as arise between the
administration and the citizen (Professor M.P. Jain, 1989). In pursuance of
administrative law, there can arise disputes. These disputes require
adjudication. There are administrative agencies other than the courts to
adjudicate such issues arising in the course of day to day administration.
Administrative adjudication is the resolution
of quasi-judicial matters by administrative agencies or commissions
established for the purpose. A number of technical issues and disputes emerge
in the
day-to-day administration. The ordinary courts do not have
the technical expertise and it becomes
quite dilatory and costly to
dispense with cases of administrative nature. It is only the
administrative agencies, which are capable of looking into the
matters of administrative
exigencies. These administrative agencies with the power to
adjudicate the disputes arising
out of
administrative action or inaction
are called administrative tribunal. THE FUNCTIONS OF
ADMINISTRATIVE TRIBUNAL
The
administrative tribunal is an institution is established under power of
government and not under the judiciary body. Unlike ordinary court,
administrative tribunal is informal and this institution has no permanent rules
about how a case must be handled. It is established to solve specific cases
with straightforward, faster and cheaper method so that the cases will not be
too long to be handled.
The
administrative tribunal is independent same as court and it is not combine with
the legislative and executive branches of the government which mean the
tribunal is separated with the two branches of government (Peter Cane, 1986).
Just like the judiciary branch, this is to ensure that any decision made by the
tribunal will not be influenced by the executive and legislative branch of the
government. So, there will be no unwise or unfair decision made by the tribunal.
The
establishment of tribunal is to resolve the disputes between a private citizen
and a central government department. For example, the private citizen claims
for a better social security for the government so that they will feel more
comfortable and safer from any threats and disturbances. But the government
refuses their wants. Thus, the tribunal is established to solve this
complicated case.
Besides
that, the function of tribunal is to settle the disputes which require the
application of specialized knowledge or expertise such as the assessment of
compensation following the compulsory purchase of land(H.W.R.W.1971). For
example, in Malaysia, the ordinary court does not have the expertise in this
specific case. So, the tribunal will be established to solve this case using
the right application of specialization and knowledge so that the case can be
solved in a period of time.
They
will interpret and apply the laws when acts or decisions made by the public
administration is challenged and questioned by the people or citizens in formal
complaints (Jayum 2011). For example, in Malaysia, when the people start
questioning their money that they gave to the government through taxation, they
will make a formal complaint on this situation. Thus, the tribunal must be
established to settle down this problem because it is not an easy case to
solve.
It
will adopt a procedure similar to, and it is more flexible and simpler than the
regular court(Moten, 2011). For example, one might expect to find a willingness
to depart from the strict rules of evidence. However, the procedure is usually
to give advisory rather than inquisitorial. It is the responsibility to the
parties to present the evidence and argument to the tribunals.
Besides
that, tribunal is to solve the disputes that related with nature and quantity
are considered unsuitable for the regular courts such as fixing a fair rent for
premises or immigration appeals. This is because regular courts do not have the
specific law to solve this problem. If the court is still want to solve the
case, it will take a long time and the cost to solve this case will be more
expensive. In order to have less consuming of time and cost, the tribunal will
be established to solve the case.
Lastly, it will have a permanent
existence, the tribunal having been established specifically to deal with a
particular type of case, or with a number of closely related types of case. By
contrast, courts of law, though also permanent bodies, generally have
jurisdictions covering a much wider range of different subject-matters (J.F.
Garner & B.L. Jones, 1985).
ADVANTAGES OF ADMINISTRATIVE TRIBUNAL
Administrative adjudication is a dynamic
system of administration, which serves, more adequately than any other method,
the varied and complex needs of the modern society. The main advantages of the
administrative tribunals are:
Flexibility
which is Administrative Tribunal has brought about flexibility and adaptability
in the judicial as well as administrative tribunals. For example, the court of
law exhibit a good deal of conservation and inelasticity of outlook and
approach. The justice they administer may become out of harmony with the
rapidly changing social conditions. Administrative adjudication, not restrained
by rigid rules of producer and canons of evidence, can remain in tune with the
varying phases of social and economic life. (Moten,2011)
Adequate
Justice which is in the fast changing world of today, administrative tribunals
are not only the most appropriated means of administrative action, but also the
most effective means of giving fair justice to the individuals. Lawyers, who
are more concerned about aspects of law, find it difficult to adequately assess
the needs of the modern welfare society and to locate the individuals place in
it. (Jayum,2011)
Less
Expensive which is administrative justice ensures cheap and quick justice. As
against this, procedure in the law courts is long and cumbersome and litigation
is costly. It involves payment of huge court fees, engagement of lawyers and meeting of other incidental
charges. Administrative adjudication in most case, requires no stamp fees. Its
procedures are simple and can be easily understood by a layman. (Moten,2011)
Experimentation
which is possible in this field and not in the real of judicial trials. The
practical experience gained in the working of any particular authority can be
more easily utilized by amendments of law, rules and regulation. Amendment of
law relating to court is quite arduous. In sum, flexibility, accessibility and
low cost are the important advantages of administrative tribunal.
(Bernama,2012)
According
to W. A. Robson, the advantages of administrative tribunals are cheapness and
speed with which they usually work, the technical knowledge and experience
which they make available for the discharge of judicial functions in special
fields, the assistance which they lend to the efficient conduct of public
administration, and the ability they possess to lay down new standards and to
promote a policy of social improvement.
PROCESS OF ADMINISTRATIVE
TRIBUNAL
The first process of Administrative
Tribunal is filing and registration. According to Act 392, Article 36, the
request shall contain information concerning the issues in dispute, the identity
of the parties
and their consent
to arbitration in
accordance with the rules of
procedure for the institution of conciliation and arbitration proceedings (The Commissioner Of Law Revision, Malaysia
Under The Authority Of The Revision Of Laws Act, 1968).
In other words, the Administrative Tribunal received any complaint or claims
lodge by interested person for any lost suffered.
The second process of Administrative
Tribunal is notice of hearing which is tribunal will issue a notice of hearing
by stating the date, place and time of hearing to both claimant and responded.
According to Act 392, Article 37, the Arbitral Tribunal (hereinafter called the
Tribunal) shall be constituted as
soon as possible
after registration of
a request pursuant
to Article 36. The Tribunal shall consist of a sole arbitrator
or any uneven number of
arbitrators appointed as
the parties shall
agree. Where the parties do not
agree upon the number of arbitrators and the method of their appointment, the
Tribunal shall consist of three arbitrators, one arbitrator appointed by each
party and the third, who shall be the president of the Tribunal,
appointed by agreement
of the parties. Arbitrator means to find the best
solution between two groups of people in a type of case that happen (The Commissioner Of Law Revision, Malaysia Under The Authority Of The
Revision Of Laws Act, 1968).
The third process of Administrative
Tribunal is adjudication process which is conducting the hearing to assist the
parties. According to Act 392, Article 41, the
Tribunal shall be
the judge of
its own competence. Any objection
by a party
to the dispute
that dispute is
not within the jurisdiction of the Centre, or for other
reasons is not within the competence of the Tribunal, shall be considered by
the Tribunal which shall determine whether to deal with it as a preliminary
question or to join it to the merits of the dispute. Other than that, according
to Article 44, any arbitration proceeding shall be conducted in accordance with
the provisions of this Section and, except as the parties otherwise agree, in
accordance with the Arbitration Rules
in effect on
the date on
which the parties
consented to arbitration. If
any question of
procedure arises which
is not covered
by this Section or the
Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide
the question (The Commissioner Of Law Revision, Malaysia
Under The Authority Of The Revision Of Laws Act, 1968).
The last process of Administrative
Tribunal is decision and award which is make its award within 60 days from the
first day of hearing. According to Act 392, Article 48, the Tribunal shall decide
questions by a majority of the votes of all its members. The award of the
Tribunal shall be in writing and shall be signed by the members of
the Tribunal who
voted for it. The award shall deal with every question
submitted to the Tribunal, and shall
state the reasons
upon which it
is based. Any member
of the Tribunal
may attach his
individual opinion to
the award, whether he
dissents from the
majority or not,
or a statement
of his dissent. The Centre shall
not publish the award without the consent of the parties (The Commissioner Of Law Revision, Malaysia
Under The Authority Of The Revision Of Laws Act, 1968).
EXAMPLE CASES OF ADMINISTRATIVE TRIBUNAL
EXAMPLE CASES OF ADMINISTRATIVE TRIBUNAL
Example cases from Tribunal For Consumer
Claims Malaysia (TTPM) in services category, travel agency;
Mr. Kamal booked for a holiday cruise
for his family holiday from Barcelona to Turkey through a well known travel
agent in Kuala Lumpur. After making a payment of RM 6,000.00 (RM 2,000.00 per
person), he was given the location of the holiday cruise and in-depth
information on the cruise. A week before the date of departure, Mr. Kamal was
informed that the cruise was cancelled.
In exchange, Mr. Kamal was offered a
cruise package to a different country. Finally, Mr. Kamal and his family went
on a holiday cruise to neighboring countries of Malaysia. However the cost of
this package is much cheaper than the amount that Mr. Kamal had paid. Mr. Kamal
therefore made a request in writing for the balance to the travel agent and was
promised a refund of the money. However, after a lapsed of six months the money
was still not returned.
Mr.
Kamal filed his claim in the Tribunal Consumer Claims. The award is the travel
agent agreed to pay RM 3,000.00 (the balance owed) and cost of RM 100.00 to Mr.
Kamal. (Portal Tribunal Tuntutan Pengguna Malaysia (TPPM), Kementerian
Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan)
Example cases from Tribunal For Consumer
Claims Malaysia (TTPM) in products category, mobile phone;
Arif proudly presented a mobile phone to
his wife as an anniversary gift. Five days after using the phone, Rina
discovered it was faulty, They both went to the authorized agent for that
particular phone where they were told that the phone is a clone. Feeling very
angry they returned to the shop where Arif bought the phone and demanded a
refund of his money.
They were further frustrated when the
shopkeeper refused to entertain their request but instead scolded and
challenged them to report the matter to
the authorities.
Disgruntled, Arif and Rina filed a claim
at the Tribunal for Consumer Claims. The reward is the shop was ordered to refund
Arif the sum of RM 1,240.00 which was paid for the phone. Arif was ordered to
return the phone to the shop. (Portal Tribunal Tuntutan Pengguna Malaysia
(TPPM), Kementerian Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan)
CONCLUSION
The conclusion is Tribunal
Administrative is established because for reduce the burden and money from
citizen to complain for their own right. Tribunal Administrative is more easy
than process in courts because with Administrative Tribunal the process is more
straight forward, quicker, cheaper and tribunals often specialize in resolving
disputes in a particular area. Meanwhile, the courts process is more formal,
more elaborate rules, incurred many cost and courts generally have the power to
hear a much broader range of cases. Overall, Administrative Tribunal is designed
to ease the public to make complain about product or service that make their
dissatisfied. The cases that can be handled by Administrative Tribunal is the
product or service that claimed does not exceed RM 25,000 only.
REFERENCES
Peter Cane (1986), An Introduction to
Administrative Law, United States, Oxford University Press.
H. W. R. WADE, Q.C., LL.D., D. C. L.
(1971), Administrative Law, 3rd Edition, London, Oxford University
Press.
Professor
M.P. Jain (1989), Administrative Law of Malaysia and Singapore, Malaysia,
Malayan Law Journal Pte. Ltd.
J.F.
Garner and B.L.Jones (1985), Garner’s Administrative Law, 6th
Edition, London, Butterworth & Co (Publisher) Ltd.
A
S Hornby(2010), Oxford Advanced Leaner’s Dictionary, 8th Edition,
Oxford University Press.
The Commissioner Of Law Revision, Malaysia
Under The Authority Of The Revision Of Laws Act (1968), http://www.agc.gov.my/Akta/
Portal Tribunal Tuntutan Pengguna Malaysia
(TPPM), Kementerian Perdagangan Dalam Negeri, Koperasi dan Kepenggunaan, http://ttpm.kpdnkk.gov.my/portal/index.php?option=com_content&task=category§ionid=9&id=21&Itemid=40
, http://ttpm.kpdnkk.gov.my/portal/index.php?option=com_content&task=category§ionid=9&id=26&Itemid=41
