 INTRODUCTION  THE ADVERSARIAL SYSTEM IN MALAYSIA  THE INQUISITORIAL SYSTEM IN GENERAL  PRESENTATION OF EVIDENCE IN ADVERSARY SYSTEM IN MALAYSIA  PRESENTATION OF EVIDENCE IN INQUISITORIAL SYSTEM IN GENERAL  THE ADVANTAGES AND DISADVANTAGES OF ADVERSARY SYSTEM  THE ADVANTAGES AND DISADVANTAGES OF INQUISITORIAL SYSTEM  CONCLUSIONS AND RECOMMENDATIONS

1. LAW OF EVIDENCE

2. ANALYSIS ON THE PRESENTATION OF EVIDENCE
B E T W E E N THE ADVERSARY SYSTEM I N MALAYSIA
A N D INQUISITORIAL SYSTEM I N GENERAL
A PRESENTATION BY :
S E LVA K U MA R B A L A K R I S H N A N
MASTER OF CRIMINAL JUSTICE

3. C O N TEN TS
• INTRODUCTION
• THE ADVERSARIAL SYSTEM IN MALAYSIA
• THE INQUISITORIAL SYSTEM IN GENERAL
• PRESENTATION OF EVIDENCE IN ADVERSARY SYSTEM IN MALAYSIA
• PRESENTATION OF EVIDENCE IN INQUISITORIAL SYSTEM IN GENERAL
• THE ADVANTAGES AND DISADVANTAGES OF ADVERSARY SYSTEM
• THE ADVANTAGES AND DISADVANTAGES OF INQUISITORIAL SYSTEM
• CONCLUSIONS AND RECOMMENDATIONS

4. INTRODUCTION
• The adversary system and the inquisitorial system are the two main legal systems in the
criminaltrialprocess under the criminaljustice system.
• It is very important to note that law of evidence is one of the important and essential
aspects of both systems.
• The Adversary System is a legal system used in most of the commonwealth countries with
common law such as the United Kingdom, Malaysia, Singapore, India and also in the United
States of America.
• The Inquisitorial system is a legal system used by most of the European countries such as
France, Germany and Italy, South America, and several countries in Asia such as Indonesia
andalso inAfrica.

5. INTRODUCTION (CONT)
• The Judge in the adversary system has a neutral and passive role, assuring the balance
between the prosecution and defence. The adversarial system is basically about two parties
quarrelling with each other and the presiding Judgewill sit and listen to the arguments before
making any finding and decisions. The law on procedures been used to protect the rights of
the accusedperson.
• In the Inquisitorial system the decision-maker gather evidence for himself and will play an
active role in the trial. In the inquisitorial system, the Judgewill decide who are the witnesses
that should be called and what are the evidence they are looking for because the Judge will
do the investigation and examination in the criminal trial in order to find evidence-based on
the dossier presented to theJudge.
• Herein, we will analyse both the adversary system and the inquisitorial system to determine
which legal system is better based on some comparison.

6. THE ADVERSARIAL SYSTEM IN MALAYSIA
• The adversary system in Malaysia follows the system in the United Kingdom of Great Britain. The adversary
system in Malaysia is governed by the procedural law in presenting and tendering evidence. The main legislature
is the Evidence Act 1950 and also other law of evidence such as the Evidence of Child Witness Act 2007. The
procedures for the criminal trial in Malaysian adversarial system is governed by the Criminal Procedure Code.
• In the laws of Malaysia, all the procedural laws regulating how evidence will be presented and tendered in the
court is about rights and fairness. It protects the basic rights of the accused person as well as the witnesses.
• While Malaysia is practising adversarial system in its judicial system but there is one proceeding which is
inquisitorial in nature, known as the Inquest Proceeding which is governed under Part VIII of the Criminal
Procedure Code Chief Judge of Malaya Practice Direction No. 1 of 2007 Guidelines on Inquest where it
mentioned that the Magistrate shall examine the witnesses and it excludes the adversarial proceedings therein.

7. THE INQUISITORIAL SYSTEM IN GENERAL
• The inquisitorial system is a system in which that the presiding Judge will conduct the trial
with investigations and examination instead of the prosecutors and the defence counsel. The
Judge will decide who should be called as a witness to testify and give evidence. The Judge
will question witnesses and do investigations in the trial. The role of the Judge is to gather
facts and evidence.The Judgewill have abigger role to play in the inquisitorialsystem.
• In Indonesia for example, it is stated in their procedural law that the trial Judge shall lead the
examination of witnesses. The criminal trial will be based on the dossier and the contents of
the dossier will determine the charge, the course of the trial and the sentence against the
accused person. In order to seek the truth, they relied mostly on the reports that are
presented in a dossier to the Judge. In the French Code of Criminal Procedure, for
example, it contains the phrase of the manifestation of the truth and taking all steps
necessaryto achievethe truth.

8. THE PURPOSE OF EVIDENCE IN A TRIAL
• The purpose of evidence in a trial is to support the charge against any accused person. This
will lead to proving a charge against an accused person. An accused person is innocent until
proven guilty. Law of evidence is used in the court during the trial. The evidence presented
and tendered must be connectedwith the chargefor the accusedperson to be convicted.
• Evidence must be truthful and reliable for it to be accepted in the Court. In the adversary
system, Judge will decide on the admissibility of any piece of the evidence whether to accept it
or not. In Malaysia, inadmissibleevidenceremainsinadmissibleeven if the Court acceptsit.
• Even, in the inquisitorial system, the evidence is still an important aspect of the trial, but how
the evidence is obtained and presented in the court is entirely at the discretion of the Judge.
In France for example, there are no strict procedural rules on how evidence should be
presented in the court and the evaluation of evidence is free andunconstrained.

9. PRESENTATION OF EVIDENCE IN
ADVERSARY SYSTEM IN MALAYSIA
• In any criminal trial in Malaysia’s adversarial system, presentation and tendering of evidence
is the most importantaspectin securing aconvictionor an acquittal.
• The evidence intended to be presented must be relevant facts to the case on trial. Any
piece of evidencecan be either in the form of oral evidenceor documentaryevidence.
• The prosecutionandthe defencewill lead the presentationof evidenceduring the trial.
• There are several features in the presentation of evidence in the adversarial system in
Malaysia which are asfollows.

10. PRESENTATION OF EVIDENCE IN
ADVERSARY SYSTEM IN MALAYSIA (CONT)
• First, it is the responsibility of the prosecution on calling the number of witnesses. The
Prosecution will start thecase by callingthe witnesses that theyintended to call.
• Second, it is also the responsibility of the prosecution in deciding which piece of evidence
to be presented in thecourt.
• Third,prosecutionanddefencewill lead the examinationof witnesses.
• Fourth, parties are at liberty to raise objections as to any piece of evidence intended to be
tendered and marked in the Court.
• Furthermore, the presentation of evidence in a criminal trial in Malaysia is governed by the
statutory provisions with the rules and procedures pertaining as to how the evidence
should be presented, tendered andchallengedin the court.

11. PRESENTATION OF EVIDENCE IN
INQUISITORIAL SYSTEM IN GENERAL
• The presentation of evidence is also an important matter in the inquisitorial system, but it mostly
does not haveany strict rules andprocedurein accepting andchallengingtheevidence.
• The Judge will have the complete set of documentary information in the dossier before the trial
started. It is up to the presiding Judge, later on, to decide on the further examination and
investigations on the case. In France for example, the presiding Judge also will decide about what piece
of evidence to be accepted as evidence. The prosecutor and the defence counsel will not decide on
who should becalledas a witness and what arethe evidencesthatneed to be tendered in the Court.
• Moreover, the presentation of evidence is for the discovery of the truth. In France for example,
the discovery of truth in a trial is through the unrestricted evaluation of the evidence and the
courts are concernedaboutthe weightor valueof the evidenceratherthanits admissibility.

12. THE ADVANTAGES OF ADVERSARY SYSTEM
There are several advantages of the Adversary system which are as follows :
• First, the basic rights of the accused are protected. This is because the basic right in a
criminalproceedingthatan accused person is innocentuntilproven guilty is protected.
• Second, is that the accused have the rights to confront the accuser. This is also a very
basic rights of the accused person. In the United States of America in their adversary
system, the rights to confront and cross-examine the accuser is guaranteed in their
constitution.
• Third, the accused will have a right for a fair trial. This is because any evidence presented
and tendered by the prosecution canbe challenged.

13. THE ADVANTAGES OF ADVERSARY SYSTEM
(CONT)
• Fourth, the rights and discretion of the prosecution is also protected. The prosecution
also at liberty to present the piece of evidence that will be tendered in the Court in
support of their case subject to rules on admissibilitythatwill be decidedby the Court.
• Fifth, the Judge will remain impartial in the trial. It is the role played by the Judge. We can
avoid any issue of bias.
• Six, is about the mind of the Judge before presiding the case. In the adversarial system,
the Judgeknows nothing aboutthecase exceptfor the chargeagainsttheaccused.
• Seven, about the active roles played by the prosecution and defence. It is a matter of
choice about whom to be called as a witness and number of witnesses that need to be
called by bothparties.

14. THE ADVANTAGES OF ADVERSARY SYSTEM
(CONT)
• Eight, it allows both parties to produce evidence to support their arguments. This is
because prosecutions will present their evidence and defence will present their evidence
to support theirarguments.
• Nine, rights of the witnesses are protected. In Malaysia for example, the party who called
the witness will have the statutory right to re-examine the witness after the witness been
cross-examined by the adverse party and the court also can decide on the relevancy of
the question asked to the witness.
• Ten, the rights of the accused are also protected on the high standard of proof for an
accused to be convicted for the offence charged. In Malaysia for example, the prosecution
need to prove a case beyond a reasonabledoubtfor the accusedto be convicted.

15. THE ADVANTAGES OF ADVERSARY SYSTEM
(CONT)
• Eleven, prosecutors representing the State and defence lawyers representing the accused
will do the best in representing theirclient.
• Twelve, the parties rights pertaining to irrelevant and inadmissibleevidence is protected. In
Malaysia, the court is to decide on the relevancy of any pieceof evidencepresented to the
court.

16. THE DISADVANTAGES OF ADVERSARY SYSTEM
There are also several disadvantages of the Adversary system which are as follows :
• First, it will be consuming time and money. It is because of the procedural law in
tendering evidence and examination of witnesses, it will take some time for the criminal
trial tocomplete.
• Second, it is all about the strategies of both parties, the prosecution and the defence in
winning the case. It is never about evaluating the facts to know about the truth, but it is
about the evidence presented in the court. Not all the facts will be presented in the Court
but only the facts that will be in favour of either party will be presented in the Court as
evidence.

17. THE ADVANTAGES OF INQUISITORIAL SYSTEM
There are several advantages of the Inquisitorialsystem whichare as follows :
• First, in the Inquisitorial system, the Judgewill play an active role in the trial. The Judgewill
conduct the proceeding instead of the prosecutor and defence lawyer. It is evident that
nothing can be hidden from the Judge. Any piece of the evidence whether it is favourable
or not favourableto the prosecutionor the defencemightbe revealedduring the trial.
• Second, it is all about finding the truth by the Judge. The Judge will do the investigation
and examination to find the truth. The Judge will decide on who should be called to
present the evidence in the Court. In Germany, there is an aggressive inquisitorial role
assignedto the trial judgewho is expectedto bring out all the objective facts.

18. THE ADVANTAGES OF INQUISITORIAL SYSTEM
(CONT)
• Third, it will avoid the manipulation of the procedural process of presenting and tendering
evidence. This is because the Judge has all the powers to investigate and to do the
examination and there is no procedural law on how the evidence should be accepted or
challenged in thecourt.
• Fourth, the Judge will have all the important information pertaining to the case in the
dossier in advanced. Then, it is about how the Judge will investigate and examine the case
with the limited assistance from prosecution and defence before the judge making the
decision.

19. THE DISADVANTAGES OF INQUISITORIAL SYSTEM
There are also several disadvantages of the Inquisitorialsystem which are as follows :
• First, it allows the impression of bias on the judiciary. This is because the Judgemight have in
his mind that the accused is guilty of the charge even before the trial started. The Judge will
have the dossier with him, of which in most cases only the favourable evidential items to the
prosecutions will be included therein.
• Second, it does not support most of the basic right of the accused person. This is
because there is no strict procedural law in the inquisitorial system accorded
strict fairness to the accused person. This is because the Judge will give the
attention more to the weight of the evidence instead of its admissibility.

20. THE DISADVANTAGES OF INQUISITORIAL SYSTEM
(CONT)
• Third, there is no rule on confrontation in the inquisitorial system. There is no cross-
examination by the defence counsel to confront the accuser. All the examinations were
done by the Judge.
• Fourth, it does not give the prosecution and defence an automatic right to examine and
cross-examine the witnesses called to give evidence by the Court. In Indonesia for example,
if the prosecutor or the defence counsel wanted to ask a question, it must be asked
throughthe Judge.

21. THE DISADVANTAGES OF INQUISITORIAL SYSTEM
(CONT)
• Fifth, it is difficult for the Judge to be impartial. The Judge will have the dossier with all the
information with him before the trial. The Judge also might have all the physical evidence
together with the dossier before the trial. Most of the pertinent or incriminating facts are
known to the Judge because they are recorded in the dossier and it is like a ritual
confirmationof the prosecutor’sfile.
• Six, that the inquisitorial system would not meet the standards of a fair trial. Evidence that
does not correspond with the investigator’s judgments can be excluded during the
preparation of the dossier.
• Seven,the fact that the defencelawyer plays aminor role in the Inquisitorialsystem.

22. CONCLUSIONS A N D RECOMMENDATIONS
• It can be concluded from our analysis that the adversary system is a better legal system
compared to the inquisitorial system. It gives more rights and fairness to both parties, the
prosecution and the defence. After all, there is a clear separation between the investigating
parties and the decision-making process.
• The most important point is, in the adversary system, it focussed on the basic rights of an
accused person, the presumption of innocence until proven guilty, the rights to confront
the accuser and the right to a fair trial. There is a proper statutory procedure in term of
how evidenceshould be presentedand tendered in the Court.
• It can be concluded that the Adversary system practised in common law countries are
absolutely abettersystem comparedto the Inquisitorialsystem.

23. CONCLUSIONS A N D RECOMMENDATIONS
(CONT)
• The Inquisitorial system gives a heavy burden on the Judiciary, which is not that practical in
nature. It over lapsed with other branches and roles in the criminal justice system. It over
lapsed the role of the Police in conducting and finalizing the investigation as the
enforcementagency.
• Furthermore, it is also overlapping the role of the prosecution in presenting their case to
secure convictions. There is no strict proper procedure for any evidence presented and
tendered in the court that can be challenged by the accused person or his/her defence
lawyer.
• It is recommended that all countries in this world ought to have used the adversary
system in their judicialsystem.

24. REFEREN C ES
• Bruno Deffains and Dominique Demougin, (2007) “The inquisitorial and the adversarial procedure in acriminal court setting”, Page
2 of Article in Journalof Institutional andTheoretical Economics JITE -March 2008.
• Luke M. Froeb and Bruce H. Kobayashi inArticle “Evidence Production in adversarial vs inquisitorial regimes”, published in
Economic Letters 70 (2001)267-272
• CambridgeDictionary,dictionary.cambridge.org
• EvidenceAct 1950 (Act 56)
• Evidenceof ChildWitnessAct 2007 (Act 676)
• Criminal ProcedureCode (Act 593)
• PartVIII Criminal Procedure Code (Act 593)
• Chief Judgeof Malaya Practice Direction No. 1 of2007

25. • Professor Antoine JBullier,University of Paris in his lecture “How the French understand the Inquisitorial system” delivered to the
Australian Institute ofAdministrative Law (WesternAustralian Chapter) on 24 May 2001 in PerthWA.
• Bron McKillop, Senior Lecturer, Faculty of Law, University of Sydney in the draft final report on “Inquisitorial Systems
of Criminal Justice, The Grand Jury and The Independent Commission Against Corruption (1994)
• Goh Beng Seng v Dol Bin Dolah [1970] 2 MLJ 95
• Section 59 of the Evidence Act 1950 (Act 56)
• Section 61 of the Evidence Act 1950 (Act 56)
• Section 3 of the Evidence Act 1950 (Act 56)
• Section 173(m) and Section 182A of the Criminal Procedure Code (Act 593)
• Section 5 of the Evidence Act 1950 (Act 56)
• Section 173(c) and Section 179 of the Criminal Procedure Code (Act 593
REFERENCES (CONT)

26. REFERENCES (CONT)
• Section 118 of the EvidenceAct 1950 (Act 56)
• Section 136 of the EvidenceAct 1950 (Act 56)
• Section 137 and Section 138 of the EvidenceAct 1950 (Act 56)
• Section 173(m)(i) and Section 182A of the Criminal Procedure Code (Act 593)
• Section 51A of the Criminal Procedure Code (Act 593)
• Tan Kim Ho v PP (2009) 3 CLJ 253
• Section 146A of the Evidence Act 1950 (Act 56)
• Section 122 of the Evidence Act 1950 (Act 56)
• Section 126 of the Evidence Act 1950 (Act 56)
• Section 173(h) and Section 180 of the Criminal Procedure Code (Act 593)

27. REFFERENCES (CONT)
• Section 101 of the EvidenceAct 1950 (Act 56)
• Section 102 of the EvidenceAct 1950 (Act 56)
• Rodger Benefiel,Bloomsburg University inArticle “Adversary System”published by The Encyclopedia of Criminology and
Criminal Justice2014
• PublicProsecutor v Dato Seri Anwar Bin Ibrahim (No.3) [1999] 2 MLJ 1,170.
• Kent Roach, Professor of Law at University of Toronto, in “Wrongful Convictions: Adversarial and Inquisitorial
Themes” published in North Carolina
• Journal of International Law and Commercial Regulation,Volume 35 | Number 2 Article 5 (2009).
• Article 153(1)(2) a. Indonesia Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana Indonesia)
• Article 139 Indonesia Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana Indonesia)
• Article 238(1) Indonesia Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana Indonesia)
• Article 165(2) Indonesia Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana Indonesia)

28. REFERENCES (CONT)
• Article 164(2) Indonesia Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana Indonesia)
• Article 181 Indonesia Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana Indonesia)
• Abraham S. Goldstein (Professor,Yale School of Law) and Martin Marcus (Research Fellow,Yale School of Law) in Article
“The Myth of Judicial
Supervision inThree “Inquisitorial” Systems: France, Italy,and Germany published inThe Yale Law JournalVol. 87: 240,
1977
• Mohamad Radhi Yaakob v PP [1991] 1 CLJ 311
• Tan Kim Ho v PP (2009) 3 CLJ 253
• Goi Chin Ang v PP (1999) 1 CLJ 829
• Sixth Amendment to the United States Constitution

29. THANK YOU