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Sunday September 11, 2005
WHEN the institution of trial by jury came to an end in February 17, 1995, with the effect of the Criminal Procedures (Amendment) Act, 1994, it brought to an end a system that the British had put into effect nearly 200 years earlier.
The jury system, which has its antecedents in medieval British “justice councils” was first introduced in Penang (then part of the Straits Settlements) by the British colonial rulers in the early 1800s, as provided under the Charters of Justice.
In 1927, the Criminal Procedure Code (CPC) came into force and “assessors” started to hear cases that involved the death penalty. These assessors, however, were usually Englishmen who had a partisan view on justice.
In 1952, case of suspected communist terrorist Lee Ten Tai, better known as Lee Meng, highlighted the weaknesses of the assessor system. Under trial for possession of a pistol and a hand grenade (both of which carried the death sentence) Lee Meng was found innocent by both “local” assessors, which so outraged judge Justice J. Thomson that he ordered a re-trial.
In the second trial which was presided over by Justice Pretheroe, a European assessor voted guilty and a local voted not guilty. Despite this, Lee Meng was declared guilty and sentenced to death.
The case then went to the Court of Appeal which was also split on a 2-1 vote against Lee Meng, but her sentence was commuted to life in prison and she was eventually repatriated to China in 1964.
In 1954, just a couple of years after the Lee Meng trials, then Umno president and prominent lawyer Tunku Abdul Rahman proposed that trials by assessors be changed to jury trials.
The CPC was amended in 1957 and a year later, local jurors sat in court for the first time in Malayan history. Interestingly in Sabah and Sarawak, there was never a provision for jury trials and cases involving the death penalty in the two states continued to be tried by assessors right until 1994.
Jury trials were for offences that carried the death sentence in Malaysia which included murder, treason and kidnapping. However, drug-trafficking and firearms possessions charges, which also carry the death penalty, were not heard before a jury.
Unlike juries in the US or Britain (which traditionally comprised 12 individuals, and required a unanimous decision for a conviction), Malaysian juries only had seven sitting jurors and a majority of five to two was the minimum requirement for a decision.
A deadlocked jury would result in a retrial with fresh jurors. It is important to remember that jury trials were still presided over by a judge, who would advise jurors on legal matters pertaining to the admission of evidence.
As with the Lee Meng case, if a presiding judge felt that the jurors had reached a conclusion that was not in accordance with the evidence submitted, he could actually order a retrial.
The system of jury selection required that district officers of each state maintain a list of citizens who were qualified to serve as jurors. Before a trial was due to commence, the district courthouse would subpoena 15 to 20 people who were listed and these individuals were required to present themselves at court on a specified date. At this point, the Court Registrar would place the names of these individuals in a box and select seven at random.
There was a distinct imbalance in the system of objection in that the accused would be allowed to object to four people as his jurors without giving reasons. If the accused objected to more than four people, the court would decide whether the reasons of objection should be allowed.
The prosecution, however, could object to as many jurors without grounds. Reasons for objection included: pre-existing prejudice on the part of the juror, a prior conviction, lack of proficiency in English or indeed somebody who worked either for the courts or the police.
During deliberations, jury members were only allowed to communicate amongst themselves, and were isolated in a room for that purpose. Upon arriving at a verdict, the foreman (a spokesman appointed from among themselves by the jurors) would announce the verdict to the court.
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