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CHAPTER TWO
TRIBUNALS
LEARNING OBJECTIVES
Upon completion of this chapter, you should be able to:
- Explain the reason for the growth of tribunal
- Discuss the importance and significance of tribunal compared to the
court of law.
- Explain the weaknesses of tribunal
- Discuss the examples of tribunal organization in Malaysia
- Describe on the suggestion put forward by the Frank Committee.
2.1
CHARACTERISTICS OF A TRIBUNAL
The term tribunal has not been used with consistency. Hence, no accurate
definition can be given. However, according to Garner, any statutory body which
possesses most or all of the following characteristics, can be regarded as a
tribunal:
a) It is independent of the administration, and decides cases impartially as
between the parties before it.
b) It reaches a binding decision in relation to the case heard.
c) Its decisions will usually be reached by a panel of tribunal members
rather than by a lone adjudicator.
d) It will adopt a procedure akin to, though rather simpler and more flexible
than, that of a court of law.
Impartially= neutrally, fairly, without bias, open-mindedly
Statutory= legal
Adjudicator= judge
Adopt= take up, accept
2.2
If all these disputes were to be left to the traditional judicial system it will
be overloaded with work. Disposal of cases will be very much delayed and this
will slow down the administrative process as well since the administration
cannot act in disputed matter until the controversy is decided. Therefore the
system of administrative tribunals has positively contributed to the preservation
of our ordinary judicial system.
The court procedure is tardy, formal, rigid and expensive. It is not best
suited always to adjudication of disputes being generated by modern legislation,
most of which consist of small claims against the administration. Tribunal has its
own advantages over the court of law.
2.3
STRENGTHS OF TRIBUNAL
2.3.1 Expedition
2.3.2 Informal
In many cases, what may be needed are an informal atmosphere and a
procedure unencumbered by too many technical and elaborate rules of procedure
and evidence which can possibly be achieved in a tribunal system.
2.3.3 Expertise
Then there is a question of expertise. Members of tribunal are generally
expert in their field and fit for specific hearing such as tax assessment and urban
development. A judge is a generalist while adjudication of newly generated
controversies needs some expertise in various other disciplines. Modern
legislation does not include exhaustive norms applicable to defined fact
situations and experts are needed to work out vague standards in the context of
varied fact situations.
2.3.4 Independent
Tribunals seem to constitute the best mechanism to settle disputes outside
the court system because they enjoy some element of separation and
independence from the administration and come very near a court. Such
independence is essential because in many cases, an administration is a party to
the dispute. The concept of autonomy is important to give credibility to decisions
by an adjudicatory body.
2.3.5 Cheapness
The cost to file a case to the tribunal is much cheaper than the court of law and
therefore is suitable for a small administration cases.
Thus, in short, cheapness, accessibility, expedition, expertise, freedom
from technicality and flexible of approach are some of the reasons leading to the
adjudicatory system outside the courts.
2.4
2.5
It is set-up under Chapter II of the Income Tax Act 1967, read with
Schedule 5 thereto. There may be three or more such Commissioner and one of
them is to be appointed as the Chairman who presides at the hearing of an
appeal. The chairman is a person having judicial or legal qualifications or
experience. The Special Commissioners are appointed by the YDPA out of the
list of names put up by the Minister of Finance.
A taxpayer is obligated to submit his income tax return to the DirectorGeneral of Inland Revenue. If the assessee does not agree with the assessment,
he can file an appeal, within 30 days of the notice of assessment, to the Special
Commissioners of Income Tax. The Special Commissioners do not hear the
appeal immediately as soon as it is filed. First, there will be a review undertaken
by the Director-General. It is only when no satisfactory conclusion is reached
after the review as to the tax liability of the assessee that the matter comes up
before the Special Commissioner. Although the power of reviews is formally
vested in the Director-General he seldom reviews the cases personally and this
function is also delegated to subordinate officers.
The Director-General himself may forward the appeal from the DirectorGeneral to the Special Commissioner if he feels that there is no reasonable
prospect of reaching an agreement with the assessee. Alternatively, the assessee
may himself ask the Director-General to forward the appeal to the Special
Commissioner.
The Commissioners have power to summon witnesses and examine them
on oath. They can summon any person to produce documentary evidence under
his control. Cross-examination of witnesses is permissible. Special
Commissioners have power to admit or reject any evidence whether admissible
or inadmissible.
Parties may attend the hearing before the Special Commissioners either
personally or through their representatives, advocates or accountants. The
Commissioners may also call expert witnesses to give evidence before them in
respect of any hearing. Hearings before the Special commissioners are to be held
in camera but the Director-General may apply for an open hearing in a particular
case where he deems that to be necessary. The Special Commissioners are
obligated to hold the hearing in open court even though the assessee may object
to that. The Minister of Finance has power to make rules of procedure to be
followed by the Commissioners. It has been judicially emphasized that the
Special Commissioners have to follow natural justice in their proceedings. The
onus of proving that the assessment appealed against is excessive or incorrect is
on the appellant.
There is no statutory obligation on the Special Commissioners to give
reasons for their decisions. The only obligation on them is that when they state a
case to the High Court, they are bound to add the grounds to their decision to the
case stated. In practice, however, the Commissioners give a reasoned decision in
all cases.
Ordinarily, the Special Commissioners are the final judges of the facts
and the High Court in deciding the case stated may not go beyond the facts as
found by the Commissioner. The High Court has power to confirm, discharge or
amend the order of assessment or remit the case to the Special Commissioners
with its opinion. On the whole, while the decisions of the Special
Commissioners are subject to judicial review, the scope of such review is rather
limited.
The Industrial Court has power to refer a question of law to the High Court.
There is a privative clause seeking to oust judicial review on the awards made by
the Industrial Court. The fundamental basis of the decision of the Industrial
Court is quicker solution of industrial disputes to achieve industrial peace.
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Contempt= disrespect
Procure= obtain, get
Given before= presented in front of
Compel= force
Implicated= connected with
Suit= proceedings or legal action brought against somebody
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Here are the main ideas for this chapter. Can you still remember the
supporting details?
TRIBUNALS
The characteristics
Reasons for the emergence
The strengths
The weaknesses
The adjudicatory bodies
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