Decision-making in the Tribunal for Consumer Claims:

A Critical Review

Su’aida Safei

and Nuraisyah Chua Abdullah

Faculty of Law, Universiti Teknologi Mara, 40450 Shah Alam, Selangor, Malaysia

Keywords: Decision-making, Consumer, Claims, ‘lay judge’, Tribunal.

Abstract: While the Tribunal for Consumer Claims (TCC) was established to address a wide range of consumer disputes

relating to goods and services in a speedy manner, decision-makings are sometimes questionable as the

decision-maker (President) may not have the technical knowledge on the respective areas. In view of the

limitation that a decision-maker may possess, foreign jurisdictions started to adopt ‘lay judge’ (decision-

maker who does not have legal background) with the objective to assist the legal judge with technical or social

assistance. The involvement of the lay judge is aimed to assist the legal judge with components of discussions

that the legal judge may not be well equipped, and this is reasonably understood in the EU countries and

Australia. It may be a solution to the issue of lack of knowledge of the legal decision-maker (President) in the

current TCC. Through qualitative and comparative approaches, this paper uncovers that participation of ‘lay

judge’ is not alien in the administration of justice in some “administrative tribunals” in Malaysia.

Nevertheless, this lay participation is absent in the TCC, thus further research on this area is suggested to be

conducted in order to further enhance the function of TCC as an effective consumer settlement forum.

1 INTRODUCTION

The scope of the paper is to examine the practice of

decision-making in the Tribunal for Consumer

Claims (hereinafter “TCC”) with other institutions

outside the court system in Malaysia (which can be

loosely referred to as “administrative tribunals”) and

also other foreign jurisdictions. The paper is confined

to scrutinise the practice of having legal trained

decision-makers to hear cases at the TCC compared

to having participation of lay persons in the decision

making process as practised in other administrative

tribunals in Malaysia and also foreign jurisdictions, in

view of the lack of such discussion in the literatures.

The objective of the paper is to assess the practicality

of adopting the participation of “lay judge” at the

TCC as a possible solution to solve the problem of

lack of technical knowledge of the President of TCC

in hearing certain cases. This is necessary in view of

the high cases related to car repairs which are brought

to the TCC and through observation during trial at the

TCC, it can be seen that often, the President faces

difficulty in understanding the terms and functions of

parts in the car which is the subject matter in dispute.

During observation at the TCC also, apart from

technical issues as a result from mechanical disputes,

technical issues can also arise as a result from

operational issues that arises in services for example

issues arising from holiday packages which

contributes the highest disputed cases in the service

industry at the TCC. As a result from the enclosed

social environment of a ‘legal judge’, it is seen that a

legal judge normally is not familiar with such nature

of disputes which a ‘lay judge’ may be more familiar

as a result of his normal way of life as opposed to a

‘legal judge’. For purpose of clarity, “lay judge” can

be defined as a person that does not have any legal

educational background or does not undergo any legal

training or does not have any legal experience that can

equip him with knowledge in law. He is also a person

who has an occupation which is not related to legal-

related fields which include but not limited to the

judicial and legal service, the law firms, the legal

advisory departments in corporate entities and the law

lecturers in the Universities. Whereas, “legal judge”

means a person who has obtained legal education or

has undergone any legal training or has gained any

legal experience that can equip with knowledge in

law and has made him to be qualified to work in legal-

related fields which include but not limited to the

judicial and legal service, the law firms, the legal

424

Safei, S. and Abdullah, N.

Decision-making in the Tribunal for Consumer Claims: A Critical Review.

DOI: 10.5220/0010054504240430

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 424-430

ISBN: 978-989-758-482-4

advisory departments in corporate entities and the law

lecturers in the Universities.

2 MATERIALS AND METHODS

The study is a doctrinal study that adopts a qualitative

research. It involves references to legal materials in

the form of statutes, textbooks and articles from

journals and observations at TCC. Library-based

research is conducted and online databases are also

utilised. Comparative studies are made with selected

foreign jurisdictions i.e. Australia, France and

Germany. Australia is chosen to represent the practice

of consumer-related tribunals in common law

countries in relation to having lay participation in its

decision-making process. France and Germany are

chosen to represent the practice of “lay judges” in the

European countries that adopts the civil law system.

Comparisons are also made with the Industrial Court

and the Disciplinary Board in Malaysia to represent

the practice of tribunals outside the court with regard

to the involvement of “lay judges” in their

institutions. Relevant statutes are referred to; the

Queensland Civil and Administrative Tribunal Act

2009, the New South Wales Civil and Administrative

Tribunal Act 2013 No 2, the Industrial Relations Act

1967 and the Legal Profession Act 1976.

3 RESULTS

3.1 Variations in Composition of

‘Lay-Judges’

Tribunals are sometimes referred to as

“administrative tribunals” or “statutory tribunals”. In

Malaysia, tribunals are established by the legislations.

Administrative tribunals are set up to be less formal,

less expensive, and a faster way to resolve disputes

than by using the traditional court system. Tribunal

members who make decisions (adjudicators) usually

have special knowledge about the topic they are asked

to consider. Judges, however, are expected to have

general knowledge about many areas of law, and do

not possess particular expertise about the law in the

case they are hearing. Unlike in courts, in a tribunal

hearing, the case may be heard by one adjudicator

sitting alone, or by a panel of several adjudicators if

the matter is complicated. These adjudicators have

special training and experience to conduct hearings,

but they are not judges. (Justice Education Society,

2019)

It was found that in foreign jurisdictions like some

European Union countries, ‘lay judges’ are not only

involved as decision makers in tribunals outside the

court but they also take part in decision-makings in

the courts. This paper examines the practice of having

‘lay judges’ in some consumer-related tribunals in

Australia. Comparative study is made pertaining to

the participation of lay judges in the courts and

specialised tribunals in France and Germany as

examples of European countries. Apart from that, this

paper also scrutinises the practice of lay participation

in selected tribunals in Malaysia; i.e. the Industrial

Court and the Disciplinary Board.

In Australia, two consumer-related tribunals can

be taken as examples for lessons to be learnt; the

Queensland Civil and Administrative Tribunal

(QCAT) and New South Wales Civil and

Administrative Tribunal (NSWCAT). The QCAT is

chosen because it hears, among others, cases related

to consumer and trader disputes. Similarly, the

NSWCAT is chosen because one of its divisions

include the Consumer and Commercial Division.

At the QCAT, lay persons (or “lay judge” as

referred to in this paper) that may be part of the

decision makers are the senior members and the

ordinary members. Section 171 (1) of the Queensland

Civil and Administrative Tribunal Act 2009

(hereinafter QCATA 2009) provides for five

categories of members at the QCAT; the president,

the deputy president, the senior members, the

ordinary members and the supplementary members.

Section 175 (1) of QCATA 2009 states that the

President is a Supreme Court judge who is

recommended for appointment by the Minister after

consultation with the Chief Justice. Section 176 (1) of

QCATA 2009 further states that the deputy president

is a District Court judge who is recommended for

appointment by the Minister after consultation with

the Chief Judge. Another category of members of

QCAT with legal background is the supplementary

members. Section 192 (1) of QCATA 2009 provides

that if the President considers it necessary for the

functioning of the tribunal, the President may request

the Minister to appoint a person to be a supplementary

member for a stated period. Section 192 (2) of

QCATA 2009 further states that only a Supreme court

judge, a District Court judge or a magistrate can be

appointed as a supplementary member. The

appointments of the President, the Deputy President

and the supplementary members would not affect the

tenure of their offices as judges, neither would it

affect their salaries as judges or any other rights or

privileges as judges in accordance with sections 175

(4), 176 (4) and 192 (9) of QCATA 2009.

Decision-making in the Tribunal for Consumer Claims: A Critical Review

425

As for the other two categories of members, a

senior member and an ordinary member, section 183

(4) of QCATA 2009 further classifies them into two;

one with legal background, the other with no legal

background. A senior member may be an Australian

lawyer of at least 8 years standing. Similarly, section

183 (5) of QCATA 2009 requires that an ordinary

member may be an Australian lawyer of at least 6

years standing. For the second category of the senior

member and the ordinary member who do not have

legal background, sections 183 (4)(b), 183 (5) (b) and

183(6)(d) lay down similar criteria for selection i.e.

those who have special knowledge, expertise or

experience relating to a class of matter for which

functions may be exercised by the Tribunal. Section

183 (2) of QCATA 2009 requires that the senior

member and the ordinary members must be

recommended for appointment by the Minister after

consultation with the president of the Tribunal.

Nevertheless, according to section 171 (3) of QCATA

2009, they are appointed by the Governor in Council.

Section 165 (1) of QCATA 2009 provides for the

quorum to hear a case of which the President must

choose either one member or two members or three

members to constitute the tribunal.

Lay persons acting as decision makers can also be

seen in another tribunal in Australia, the New South

Wales Civil and Administrative Tribunal (hereinafter

NSWCAT). According to section 9 of the New South

Wales Civil and Administrative Tribunal Act 2013

No 2 (hereinafter NSWCATA 2013), the NSWCAT

consists of five categories of members; the President,

the Deputy Presidents, the principal members, the

senior members and the general members. Section 13

of NSWCATA 2013 lays down the qualifications of

these five categories of members. The President and

the Deputy Presidents are people having legal

background. The President is a Judge of the Supreme

Court. The Deputy President is either an Australian

lawyer of at least 7 years’ standing or a person who

holds or has held a judicial office of the State or of

Commonwealth, another State or territory. The

principal members and the senior members can either

be people with legal background (an Australian

lawyer of at least 7 years’ standing) or people with

special knowledge, skill or expertise in the areas

within the jurisdiction of the NSWCAT. The general

members are those who do not have legal background

that are either people with special knowledge, skill or

expertise in the areas within the jurisdiction of the

NSWCAT or those who are capable of representing

the public (or a sector of the public), or a particular

organisation, body or group of persons (or class of

organisations, bodies or groups of persons).

Section 57 (3) of NSWCATA 2013 regulates the

procedure of decision making at the NSWCAT. In

making decision, if the NSWCAT consists of more

than one member sitting in the hearing and the

members are divided in their opinions, then a majority

decision will be the decision of the NSWCAT.

However, if the members are equally divided in their

opinions, the opinion that prevails will be as follows:

(a) in proceedings in which the presiding member

is an Australian lawyer or none of the members sitting

are Australian lawyers—the opinion of the presiding

member, or

(b) in proceedings in which the presiding member

is not an Australian lawyer but one or more of the

other members sitting are Australian lawyers:

(i) on a question of law—the opinion of the

member who is an Australian lawyer (or the member

with the greatest seniority who is an Australian

lawyer), or

(ii) on any other question—the opinion of the

presiding member.

It is observed that when the members of the

NSWCAT cannot reach a majority decision, the

opinion of the member with legal background (the

‘legal judge’ who is an Australian lawyer) prevails

when he is a presiding judge. Similarly, when the

members are equally divided in their opinions and the

case before them involves a question of law, the

opinion of the member with legal background (the

‘legal judge’ who is an Australian lawyer) will be

taken as the decision of NSWCAT even though the

‘lay judge’ and not the ‘legal judge’ is the presiding

judge. Nevertheless, if the case before the NSWCAT

does not involve any question of law and the ‘lay

judge’ is the presiding judge, then only the opinion of

the ‘lay judge’ will be regarded as the decision of the

NSWCAT. This shows that the opinion of the ‘lay

judge’ is only significant in matters which do not

involve any question of law.

The mixed tribunal of the legal judges / the

professional judges and the lay judges in some

European countries can firstly be seen in their

criminal justice system. The professional judges and

the lay judges jointly decide legal cases. They sit

together during trials, hear and examine evidence and

deliberate before making a decision. The professional

judges have an opportunity to “correct” the views of

lay judges and explain the law. At the same time, lay

judges have the opportunity to “correct” the

professional judge’s view by bringing the fresh

approach of an average citizen. To preserve the

common element in the lay judges, some countries

like France and Germany, prohibit certain

occupations with legal education or experience such

iN-LAC 2018 - International Law Conference 2018

426

as professional judges, prosecutors, attorneys or

police officers to serve as lay judges. Many countries

such as Croatia and Germany also require that lay

judges possess non-legal specialised skills, such as a

degree in educational studies or parenting experience,

to serve in select types of cases, primarily those

dealing with juvenile defendants. (Ivkovic, 2007).

France and Germany are given special attention in

this paper since they were among the six original

members that founded the European Union’s

predecessors; the European Coal and Steel

Community in 1951 and later the European Economic

Community and the European Atomic Energy

Community in 1957. (European Commission, 2016)

The composition of “lay judges” in France was

established in 2002. “Lay” judges are not professional

judges, they are appointed by the legal profession by

decree after the approval of the Higher Council of the

Judiciary (CSM) for 7 years and not renewable. They

exercise certain functions of judges in criminal or civil

matters. In May 2009, there were 618 “lay judges”. In

France, the involvement of “lay judge” can be seen in

the criminal division (Police Court Tribunal de Police)

of the District Courts (petty offences for classes one to

four) and also some civil cases under 4,000 Euro. For

both civil and criminal issues, cases are tried by a

judge sitting alone. Lay judges are also involved in

hearing cases in the Regional court and its criminal

jurisdiction. There are generally three judges hearing

cases in these courts; one of them may be a “lay

judge”. However, occasionally the courts are presided

by a single judge. The “lay judges” also participate in

specialist courts in France such as Labour courts,

Commercial courts, social Security courts and

Agricultural and Land tribunals. Judges of these

specialist courts are non-professionals and are elected

or chosen with the respect of equal

representation.(Ministry of Justice, 2012).

Another specialist court in France, the Juvenile

courts, that hear youth offences by offenders who are

below 18, also involves the participation of “lay

judges”. The Juvenile courts are presided by one

juvenile court judge assisted by two lay judges and

one court clerk. For most serious cases, there are

Juvenile Assize courts which have jurisdiction for

offences committed by minors from 16 to 18. These

courts are made up of three professional judges and a

jury made up of 9 civilians randomly chosen.

(Ministry of Justice, 2012).

Similar to France, lay judges in Germany also sit

in criminal cases in the courts of first instance i.e. in

local (Amtsgericht) and Regional (Landgericht)

courts and in appeal proceedings at the Regional

court. They are two lay judges sitting in addition to

one or two or three professional judges, depending on

which court it is. In addition, the lay judges in

Germany are also involved in the specialist courts like

the Labour tribunal and the Agricultural court. Lay

judges in the Labour (employment) tribunal

proceedings are required to have knowledge and

experience in the field of labour (employment) and of

world of work. The members in the Labour

(employment) tribunal proceedings consist of three

members; one presiding judge who is a professional

judge, one lay judge as a representative of employees

and one lay judge as a representative of employers.

On the other hand, in the Agricultural courts in

Germany, lay judges sit in courts for agricultural

matters in all the instances in agricultural court

proceedings. An agricultural court at local level is

generally composed of one judge of the local court as

chairperson and two volunteer lay judges. Panels of

judges in the Higher Regional Courts and in the

Federal Supreme Court are composed of three

professional judges and two lay judges. One of the

criteria to be lay judges in the Agricultural courts

include those who are working in agriculture in the

jurisdictional district in a self-employed capacity

either as a main or subsidiary profession. Another

specialist tribunal in Germany is the Trade Matter

Court. At the regional level there are special

chambers for trade matters to pass judgement in

disputes between merchants. In these chambers,

merchants / businessmen sit as lay judges, they are

known as "trade matter judges". Other qualifications

to be appointed as trade matter judges include

member of a board, managing director or an

authorised signatory of a business. A Trade Matter

Court is comprised of one professional judge and two

lay trade matter judges. In Germany, lay judges are

generally referred to as volunteer lay judges. They do

not receive a salary or stipend. They receive

compensation for their time and for actual expenses

incurred. (Deutsche Vereinigung der Schöffinnen und

Schöffen. (German Association of Lawyers and

Schöffen), (2009-2016).

Tribunals can be loosely referred to as bodies or

persons that adjudicate on specific matters as provided

by the statutes. In Malaysia these would include the

Tribunal for Consumer Claims established by the

Consumer Protection Act 1999, the Industrial Court as

established by the Industrial Relations Act 1967 and

the Disciplinary Board as established by the Legal

Profession Act 1976. Tribunals like the Industrial

Court that deals with trade disputes between the

employers and the employees and the Disciplinary

Committee that assists the Disciplinary Board in

investigating an alleged misconduct of a lawyer are

Decision-making in the Tribunal for Consumer Claims: A Critical Review

427

examples of tribunals having lay persons in the

decision making process.

The decision makers at the Industrial Court shall

consist of three people; the President and two

members selected by the President, one from each of

the panels specified in section 21 (1) of the Industrial

Relations Act 1967 (hereinafter IRA 1967); one panel

representing employers and one panel representing

employees. (Yeoh, 2011). Section 21 (1)(a)(b) read

together with section 2 of IRA 1967 provide that the

President shall be appointed by the Yang di

PertuanAgong and the panel representing employers

and the panel representing employees shall be

appointed by the Minister of Human Resources. The

President is assisted by a number of Chairmen in two

or more Divisions of the Industrial Court as stated in

section 23 of IRA 1967.(Aminuddin, 2011). Section

23A of IRA 1967 further explains that the President

and the Chairman of the Industrial Court are selected

among those that have legal background. He or she is

either a senior lawyer of seven years in practice or a

member of the judicial and legal service of the

Federation or of the legal service of the Federation.

The qualifications of members of the two panels

representing employers and employees are not stated

in the Industrial Relations Act 1967. In practice, the

members of the panels are appointed by the President

after consultation with relevant organisations such as

the Malaysian Trades Union Congress (MTUC) and

the Malaysian Employers Federation (MEF). These

bodies submit lists of persons considered suitable to

sit on the panels. The President is empowered to

choose from these lists. The panel members are then

rostered to attend court hearings. However, where the

case being heard is a complaint of unfair dismissal,

the President or Chairman can sit alone without a

panel. (Aminuddin, 2011).

The composition of members in both the

Industrial Court and the Disciplinary Board show not

only people having expertise hearing the cases before

them but lay persons to be involved in their decision

making. Two members of the Industrial Court are lay

persons selected from the panel representing

employers and the panel representing employees.

As for the Disciplinary Board, its members are

those having legal background. Section 93 (3) of the

Legal Profession 1976 (hereinafter LPA 1976)

provides for the composition of members of the

Disciplinary Board. The Chairman must either be a

retired judge or a person having the qualification to

be a judge at the superior courts; the High Court, the

Court of Appeal and the Federal Court. The other

members are from the legal profession itself; the

President of the Bar Council and senior lawyers with

a minimum of 15 years experience.

The Disciplinary Board is assisted by the

Disciplinary Committee in making its decision. One

of the three members of the Disciplinary Committee

consist of a lay person. Section 103A (2) reads

together with section 96 (1) of the LPA 1976 provide

for one lay person to be the third member of the

Disciplinary Committee in addition to the other two

members who are senior lawyers of at less 10 years

standing. The Disciplinary Committee is appointed

from the members of the Disciplinary Committee

Panel which consists of 30 members; 20 members are

lawyers of not less than 10 years standing and have

valid practising certificates and 10 members are lay

persons as stated in section 96(1) of the LPA 1976.

The role of the Disciplinary Committee is crucial

whereby it helps the Disciplinary Board in making

inquiries and finally giving recommendations as to its

findings and the suitable punishment related to the

case. Decided cases had shown the importance of the

findings made by the Disciplinary Committee as to

whether an advocate and solicitor is guilty of a

misconduct, which is usually agreed upon and

adopted as the decision of the Disciplinary Board.

Examples can be found in the Court of Appeal

decisions in the cases of Iszam Kamal bin Ismail v.

PrestijBestariSdnBhd (MajlisPeguam Malaysia,

Intervener) and Ramasamy a/l Amaippan v. Kwan

Lee Pin (MajlisPeguam Malaysia, Intervener).

Although the Disciplinary Board usually

follows the finding of guilt or innocence by the

Disciplinary Committee, the Disciplinary Board still

retains the power to decide whether it agrees or

disagrees with the recommendations of the

Disciplinary Committee on the appropriate

punishment for the misconduct committed by the

advocate and solicitor. Section 103D(1) of LPA 1976

provides that the Disciplinary Board may affirm or

reject the recommendations of the Disciplinary

Committee. Section 103D (2) of LPA 1976 further

allows the Disciplinary Board to impose a greater

punishment.

3.2 Benefits of Lay Participation

In the literature, a number of benefits of participation

of lay judges had been highlighted. Firstly, lay judges

relate to the principle of democracy. Citizens need to

participate not only in Parliament but also in the

administration of justice i.e. in the decision-making

process in the courts. Secondly, lay judges serve as

supplements to the professional judges. Professional

judges are seen to belong to the upper half of the

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428

society but sit in judgment of the lower half, which

they would not know and they do not experience the

struggles of the self-employed, the ordinary worker

and the welfare recipient. The lay judges would be

able to give the wider social spectrum of people in the

work of the courts. Thirdly, the lay judges can

contribute effectively when they have knowledge,

expertise and experience in the areas that the

professional judges lack knowledge. Fourthly, lay

judges can represent social interests in certain areas

such as in specialised labour courts where there are

representatives of both employers and employees as

members of the labour courts. Fifthly, lay judges

allow a discussion with the professional judges and

may lead to a more balanced conclusion. Finally,

there are other additional effects to lay participation

in court; the legitimation function and the education

function. For the legitimation function, the parties

involved and the public may experience a better court

system that is closer to the people. For the education

function, it may involve three forms. In the first form,

the lay judges are educated by their own experience

in court. In the second form, they will share their

experience and educate their colleagues, families and

friends. This will broaden the public knowledge of

law and courts that will lead to the ‘multiplication

function’. In the third form, trials before lay judges

have to be made in an accessible language and in all

necessary details to help the lay judges to understand

the whole process. Consequently, parties to the

dispute can understand the arguments and the

audience present in the court room also can follow the

proceedings. (Machura, 2016).

3.3 Problems with Lay Participation

There were problems with lay participation that

occurred in some EU countries. Firstly, the selection

process should allow lay judges that represent their

communities. However, the eligibility requirement of

citizenship and politics resulted in overrepresentation

of middle-class citizens and underrepresentation of

lower-class citizens. An example can be seen in

Germany where the industrial worker of lower social

class are underrepresented as compared to the civil

servants who are overrepresented. Secondly, there

should be the same weight in the votes of the lay

judges and the professional judges that would give

them equal influence during trials and deliberations.

However, in reality, the professional judges dominate

the lay judges. In Croatia for example, its criminal

procedure law gives additional rights and

responsibilities to presiding judges, who may only be

professional judges. In Germany, while professional

judges may access the case dossier, the lay judges are

denied of the same access. Thirdly, it is very rare that

the lay judges outvote the professional judges when

there are disagreements among them. In German

criminal courts for example, the overall effect of the

lay judges on the verdicts of the courts was indeed

small. The active roles and the higher status of the

professional judges allow them to persuade the lay

judges and gently guide them towards making the

preferred decision. Fourthly, the criticisms and the

negative perceptions of the professional judges

towards lay judges will result in the views, the

comments or the contributions of the lay judges not

to be taken into account by the professional judges. In

Poland for example, those who opposed the practice

of lay participation argued that lay judges were more

emotional and lenient, justifying the professional

tribunals to be preferable. Another example in

Finland found that the Finnish professional judges

criticised lay judges for being emotional, having a

lower standard of proof, being too easily persuaded

by professional judges and revealing trial-related

secrets. Finally, another distortion may happen if the

practice of lay participation is made for political

reasons. For example, in legitimising the apartheid

government in 1991, South Africa gave professional

judges, who were mostly white, the discretion

whether to sit with lay judges, who were mostly

black. It was later found that between 1991 and 1995,

the overall number of cases across the country in

which lay judges participated was “exceedingly low”.

It was proven here that giving professional judges the

discretion whether to have lay judges to participate in

making legal decisions may result in no lay

participation at all especially if the professional

judges dislike lay judges or directly oppose the

system of lay participation. (Ivkovic, 2007).

4 DISCUSSION

‘Lay judges’ appear to be more significantly used and

discussed in criminal-related hearings in some

jurisdictions compared to the others. Although ‘lay

judges’ are applied in tribunal hearings in some

aspects of civil jurisdictions, the methodology behind

the decision-making by the ‘lay judges’ are not

widely discussed and therefore, findings of actual

practice of ‘lay judges’ in tribunals can be further

gathered through fieldwork. Proper consideration of

the practicality of the adoption of ‘lay judges’ in

Tribunal for Consumer Claim may bring about the

possible solution of practical issues in the tribunal

such as lack of technical expertise.

Decision-making in the Tribunal for Consumer Claims: A Critical Review

429

5 CONCLUSIONS

By referring to the above-mentioned practices of

consumer-related tribunals in Australia, the mixed

tribunal of the professional judge and the lay judge in

France and Germany, the panel of three members at

the Malaysian Industrial Court and the Disciplinary

Committee assisting the Disciplinary Board of the

legal profession, there can be two possible

approaches in the lay participation that the TCC can

adopt. The first approach is where the lay judge can

be made part of the panel hearing cases together with

the President of the TCC. To avoid dominance of the

‘professional judge’/ ‘legal judge’ over the ‘lay

judge’ in a mixed panel of decision makers, there

should be a demarcation of different roles to be

played by the lay judge and the President as the

professional / legal judge. A possible practice would

be where the ‘legal judge’ will look at the legal issues

in the case before him while the ‘lay judge’ will assist

the ‘legal judge’ in terms of the factual issues which

may include the technical issues that the ‘legal judge’

lack knowledge. When the ‘legal judge’ would be

able to rely on the expertise of the ‘lay judge’, the ‘lay

judge’ can be seen as contributing effectively as a

team in making decision together with the ‘legal

judge’. As for the second approach, it is also possible

to appoint the lay judge as an expert to give inputs to

the President as and when it is necessary. This may

happen during the pre-trial process when the ‘legal

judge’ is making preparation for hearings and it can

also be extended during hearings where the ‘legal

judge’ can consult the ‘lay judge’ as and when it is

necessary. In the two above-mentioned approaches, it

is pertinent to have the ‘lay judge’ who can contribute

effectively and participate actively in solving the

cases before the TCC. The ‘lay judge’ plays the

supplementary role to the fundamental role of the

‘legal judge’. Therefore, the ‘lay judge’ should not be

any layman pick in the street but he must be someone

with expertise, experience and/or knowledge in the

areas of cases that he is hearing. It should also be

suggested here that if the first approach is to be

adopted, a three-panel of one ‘legal judge’ and two

‘lay judges’ is a viable option in order to avoid a

deadlock in decision-making. However, in case a

majority decision cannot be reached, then a veto

power of the President of the TCC to finalise the

award of the TCC is unavoidable. On the issue of

which cases are suitable for the lay participation to be

practised in the TCC, it should not be made applicable

to all types of cases but only to selected cases. Cases

where the technical knowledge and the expertise of

the lay judge are needed to assist the President of the

TCC to make its decision are viewed as the most

suitable cases to be selected. Last but not least the

above suggestions can be adopted to allow the

participation of the “lay judge” at the TCC as a

possible solution in solving the problem of lack of

technical knowledge of the President of TCC in

hearing certain cases.

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