Comment by Baradan Kuppusamybaradan@pc.jaring.my
ALMOST two centuries after the first jurors sat in Penang in 1807, Malaysians are hotly debating whether to bring back the jury system that was abolished in 1995 on the grounds that it was cumbersome, outdated and caused delays.
The reason then was that jurors as ordinary people had no business in legal matters, especially in capital offences like murder and kidnapping, which carry the death penalty.
“Let the judge, who is the expert, decide,” was the Government’s main argument when abolishing the jury system.
Then came the 1990s boom. Malaysians were busy making money, getting degrees and travelling the world, and preferred “cut and dry” solutions to complex issues.
It was a time when they trusted “experts” without question; and in a murder trial, who can be the better “expert” but the judge himself.
But no less an authority than Attorney-General Tan Sri Abdul Gani Patail has suggested that we revive the jury system because justice is better dispensed that way.
His argument is that ordinary people today are better educated and more mature, and able to understand social issues, the judicial system and the need to suitably dispense justice.
“Jury trials are more conclusive because the judge uses his legal expertise to guide the jury on questions of law while the ordinary people on the jury decide on the facts of the case,” he said.
Although Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz has shot down the idea, too hastily some lawyers say, the debate continues. This is because the philosophy underlining the jury system – to be judged and punished by one’s peers – is a fundamental issue in a society bound by the Rule of Law and judicial independence.
Nazri, however, argued that racial and religious bias, corruption and lack of legal knowledge all make trial by jury unrealistic.
He said it made more sense for a learned judge to decide a case than a seven-member jury lacking legal training.
“We see no reason to bring back the jury system as the present system is adequate,” Nazri said.
“Because jurors are ordinary people, they are not free from bias and racism. I’m worried that someone may be convicted just because of his skin colour.”
He said jurors could also be susceptible to corruption.
“One needs to only bribe four (of the seven) jurors to win a case,” he said.
Some lawyers disagree, saying bribing is made more difficult under the jury system because the accused has too many people to buy over.
Another major argument for a jury system is to ensure that one man, the judge, does not have a free hand deciding the fate of a condemned person. A jury of ordinary people acts as the check and balance.
Furthermore, jurors are kept under strict surveillance during the trial to ensure no one gets to them. In fact, sometimes they are locked away!
“That makes the jury system foolproof against corruption and is best suited to dispense justice,” says lawyer M. Kulasegaran, who is Ipoh Barat MP.
Malaysians are hotly divided on the subject, going by the response in the letters columns of newspapers and on the Internet.
Most lawyers are firmly for a revival of the jurors while others, mostly politicians, academics and ordinary people, are afraid that the many differences that exist in our society will be reflected in the jury.
They fear that our society’s common biases, prejudices and racial stereotyping will show among jurors and impede the dispensation of justice.
Earlier this year, a poll of Malaysians’ attitudes towards each other showed shocking racial stereotyping.
Another recent poll of undergraduates revealed their willingness to give or take bribes.
It is no secret that religious tolerance is diminishing, and discrimination on the basis of one’s race, skin colour, sex and religion is on the rise.
The food we eat, the clothes we wear, the company we keep and the schools we send our children to all reflect our prejudices.
We are famous for our “melting pot” multi-ethnic society. Everybody is challenged that we live in peace. The truth is we live apart in our separate spheres, whose borders are a minefield of “sensitive” issues.
The cardinal principle of a jury system is reasonableness. To be reasonable in everything – from weighing evidence, to assessing the accused, his manner and his body language, and applying the rule of common sense.
The benchmark is to apply ordinary, everyday norms to the pile of evidence and decide whether the accused is guilty or not guilty, after which the judge applies the law and passes sentence.
If the results of the above polls are to be believed, “reasonable man” might be a category of people that is getting scarce in our society.
A juror has to be detached. He can’t bring his race, gender, attitudes, religion or any other matters that set him apart into the courtroom.
Jurors are supposed to be “pure and innocent” and able to see facts as “facts.”
It is true we are better educated, more literate and thousands among us are graduates and together form a large pool of jurors to select from.
But the key question is not education or literacy but whether our prejudices have retreated with the literacy and education we have gained.
True, a jury system is a fine system.
The principle underlying it – to be judged by your own peers – is exemplary.
But it is inevitable that any jury system will reflect the prejudices of the society it seeks to serve.
In America, jurors, persuaded by “dream teams” of lawyers, regularly acquit celebrity accused. But there is no demand to do away with the jury system.
In our case, are we prepared for the downsides of the jury system?
In our circumstances, it is the society that needs to be faulted if the jury system fails, not the system or its underlying philosophy.
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