ADR in the Malaysian Courts: a short
synopsis
Hughie TAN Yeak Hui
A social scientist once asked me
"What do you think would make a good lawyer?" As an ADR
practitioner, I told him a good lawyer is someone who not only can
win your case in Court but one who can win your case without having
to go to Court.
In Malaysia today, there are no formal process
for people in dispute to solve their problem other than to go to
Court to litigate their matters. The other process in which disputes
are resolved other than the Courts are the Arbitration Tribunals,
although many do not regard arbitration as a form of ADR because of
their adjudicatory nature. Mediation and conciliation as a formal
process of resolving disputes in Malaysian Courts are still in their
early stages.
That the Court system in Malaysia today is
overloaded with a backlog of cases is an understatement. I have been
told it is sometimes not uncommon to take a few weeks just to
extract the papers for Court Order that has been granted. To quote
an old cliché “justice delayed is justice denied”.
The public is generally dissatisfied with the
machinery presently available to them for resolving their disputes
mainly because of the high cost and the delay. Alternative method of
resolving disputes other than litigation and arbitration should not
only be encouraged but also should be vigorously promoted. The
development of ADR in Malaysia should not be left in the hands of
the legal profession alone as the public may get the wrong
impression that the resolving of disputes remains the prerogative of
the lawyers. The resolving of any disputes need not necessary and
should not be dominated by the legal profession. Professionals and
laymen from every discipline should be encouraged to acquire skills
and practise the art and science of conflict resolution and
management.
Although ADR processes such as mediation and
conciliation are not promoted in a big way in the Malaysian Court,
unlike their counter-part in the Singapore Courts, however in the
field of matrimonial disputes there are reconciliation tribunals
created by statutes to help couples with marital problems resolved
their disputes. Under Section 106 of the Law Reform Act 1976
disputing couples are not allowed to file their divorce petition for
the dissolution of their marriage until they have made attempts at
the reconciliation tribunals to resolve their problems and until a
certificate stating that the dispute cannot be resolved has been
issued by the Tribunal. The tribunal usually consists of 3 persons
chosen from respectable members of society together with a
government officer. Practitioner of family law are of the view that
the tribunal has not been very successful in helping disputing
couples resolved their problems and this is supported by statistics
which shows that the success rate for these reconciliation sessions
are very low. It has been commented by some observers that the
tribunals real function is more of providing a rubber stamp to slow
down the disputing couples eagerness to obtain a quick divorce
rather than a serious attempt to find a solution to the dispute.
When the Malaysian Parliament enacted laws in
1976 creating changes in the family law to make divorces easier for
married couples in dispute there were some fear in some quarters
that the liberalizing or loosening up of the divorce laws might
caused a floodgate for disputing couples to get their divorces.
Partly because of this concern the legislators decided to put in
place a reconciliation body to help disputing couples find ways to
resolve their marital disputes whilst at the same time provide a
cooling off period for good sense to prevail. The objectives of the
legislators were highly commendable. However it is sad to note that
despite such noble objectives and with statutory backing and good
infrastructure in place, the objectives of the legislators seems to
have failed.
It is hoped that the relevant authorities in
charge for the successful operation of these reconciliation bodies
review the weaknesses and make recommendations to ensure that
resources of the State are more effectively deployed to provide
suffering couples with matrimonial disputes more meaningful avenues
and facilities to solve their marital problems outside the
Court-rooms.
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