Jury trials can bring political stability and enhance justice

 

From Hamid Sultan Abu Backer

Lord Denning said that the jury trial “was the bulwark of our liberties”. Absence or compromise of the liberties of subjects will also lead to political and economic instability and, most importantly, may even end up as a security threat to the nation itself.

The jury system guarantees that citizens will be tried by their own peers. It is my observation that English principles such as the rule of law and doctrine of separation of powers will not work smoothly in any Commonwealth country which does not have a jury system, and also where ethics and meritocracy are lacking in the legal industry.

Malaysia is one good example of a country which had refused to follow the jury system as practised in England. As a result, in my view, it has fallen into the trap of political and economic instability and may be close to a security threat within the country itself.

It has also created case backlogs and quite often the administration of justice itself is put under avoidable pressure, as evidenced by political and public criticism.

It is important to note that the British public never had absolute faith in British judges trying all criminal cases. Magistrates were only allowed to try trivial offences.

The accused, until today, has the choice of opting for a jury trial in semi-serious cases only, and no option at all for serious offences which have to be tried by jury in the Crown Court.

The good thing about the jury system in England is that there will be a preliminary inquiry – referred to as “committal proceedings” – before a magistrates’ court to decide whether a purported offender should be charged and tried by jury.

This proceeding is a check on prosecutorial abuse, among others.

The Malaysian public and its politicians lost that safeguard by discontinuing the English practice and repealing all provisions for the jury system.

That failure to follow the English jury system in my view has brought political instability to this country when one government takes action against the political leaders of the previous government for wrongdoings during their term of public office.

These actions, though justifiable under the current law, also creates animosity among political supporters and is a fertile ground for economic instability.

It has also created a dent in the administration of justice when compromises are made after a person has been charged.

Whistleblower judge

The first major event I witnessed which initiated and split the unity of the Malaysian public was the prosecution or persecution of Anwar Ibrahim.

This case is still an ongoing debate, and a whistleblower judge too – as per his oath of office to preserve, protect and defend the Federal Constitution – had filed an affidavit on the subject, but that has been conveniently suppressed by politicians and others who had no gumption to institute a royal commission of inquiry (RCI) to take stock of what was going on at “Denmark House”.

Many whistleblower judges have also blown their horns in the past but they too have been put to rest.

The prosecution or persecution of Anwar also led to political instability, which provided a fertile field for corruption and corrupt practices to flourish during his time in prison.

Malaysian politicians and political parties are continuously making statements of unfair treatment to their political leaders related to prosecution as well as due process of law.

Notwithstanding the fact that we do not have a jury system, an RCI against recalcitrant politicians to be charged in the nature of committal proceedings in England as a condition precedent for public trial will indeed add credibility to the due process of law.

The benefit of RCIs, which are public proceedings, is that they will keep the public duly informed of the grievances of the prosecution.

It is time Madani policymakers study the 1215 Magna Carta guarantee where the King of England had guaranteed that the trying of facts will not be in the hands of judges, who will only decide on the law.

That guarantee led to the jury system for civil and criminal matters.

Many countries have abolished the jury system for civil and commercial matters and that has also led to a backlog of cases. In many countries where the criminal jury system has been removed, this has been followed by a high corruption perception index as well as public perception that the government of the day is interfering with the administration of justice to achieve its political agenda.

The trying of facts in civil and commercial matters can be resolved by introducing the University cum Court Annexed Arbitration in the court system.

Jury trials for criminal matters can be easily revived in Malaysia by reinstating the repealed provision and making some amendments to ensure politicians and public personalities are tried by the jury system for serious offences.

The methodology can be found in the paper which I presented in Singapore at a BAIAC Conference titled “University cum Court and Jury Mode Criminal Trial”.

It is my considered view that removing the trying of facts from the responsibility of the judiciary will benefit the country and the Malaysian public. It will also bring political stability and integrity to the administration of justice and that will also result in a boon to social justice.

My one-day programme to create a tsunami of arbitrators for an arbitration pool can be conveniently used to select the jury from the arbitration pool itself. The programme is capable of training 50,000 arbitrators within six months if the prime minister consents to the concept, as explained in a number of my recent articles. - FMT

Hamid Sultan Abu Backer is a retired judge of the Court of Appeal, and a professor of arbitration and dispute resolution at MAHSA University. He is also an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.