Jettisoning jurors is jejune justice

A right to jury trial is granted to criminal defendants in order to prevent oppression by the government.

— Byron White, former Associate Justice, US Supreme Court

Section 302, Penal Code, Malaysia (Act 574): Whoever commits murder shall be punished with death.

These ominous eight words defying constitutional gravity to the right to life and personal liberty ushered the demise of Malaysia’s jury system in 1995. Plainly stated, the citizen voter has every right to select and elect his or her representative in Parliament who passed this law, but not to sit as a peer in a criminal trial to see that that law is not abused.

The jury is the living embodiment of the power in the people in deciding the harshness of any written law especially when one’s right to life hangs in the balance. That power should not be diminished or destroyed.

Instead of jurors deciding the fate of an alleged criminal, can one Executive-appointed unelected judge do any better? Truth be told, jurors are judicially guided in their decision-making process as to the evidence presented that helps assessing the written law.

The 1994 Mona Fandey case supposedly created a media frenzy that, arguably, influenced the untrained legal minds and consciences of the seven jurors who voted unanimously for the death penalty. But, the trial and appellate judges agreed with the jury verdict! Where’s the problem?

The early turning point could have been influenced by Teoh Seng Lian v Public Prosecutor [1986] 1 MLJ 44 when the Supreme Court held that failure to direct the jury on an essential point caused a failure in the case.

So, did the powers-that-be abolish the jury system because some judge failed to issue proper jury directions; or did some murderer go scot-free because of media coverage; or did the puppeteers decide that Malaysian race, religion, and region politics could sway juror sentiments?

Whatever the answer, it is a travesty of justice to import an alien common law system, and then abruptly replace it with nothing to substitute for it except, perhaps, Part II, General, Section 3 (c) of the Civil Law Act 1956 (Act 67) which allows Malaysian circumstances to prevail over English common law.

Proponents arguing for a return of the jury system in Malaysia insist that abuse of power within the justice system as a prime reason why decisions and judgments should not be taken away from the common man whose vote and voice otherwise matter in the choice of their elected

Other proponents of the jury system maintain that judges are out of touch with the common man, and thus may cause bias and unfairness in their judicial thinking. Jurors, it is argued, are swayed solely by the evidence presented, the facts eviscerated, not by principles and philosophy of law, precedents or statutes. That is the whole point, is it not, that justifies the jury system?

Malaysia today with instant access to particulars and information is not the Malaya of yesteryears with radio and coffee shop discussions that ruled the sound waves. The citizenry today is far better informed, more analytical, much matured and ready for change as was witnessed on 9 May 2018.

A functional and independent judiciary empowered by Article 121 Federal Constitution ought to re-introduce, re-establish and refurbish the jury system without usurping a legislative function. Malaysian judges have seen the light since the infamous Ayer Molek case was anchored in terra firma by courageous judges.

The question of a functional independent judiciary is a festering sore to law professionals and lay persons alike. Singapore jettisoned the jury system in 1969, but caught the attention of international jurists as being compliant with its ruling political party. Deep state?

All said, done and dusted, the Malaysian judiciary has become proactive, pragmatic, pre-emptive and progressive as was recently witnessed with the Federal Court ruling that declared unconstitutional Section 4 of the Prevention of Crime Act 1959. This is a giant leap.

It could be that the virulent stinking thinking equates the absence of the jury system with the potential to abolish the death penalty. Jurisprudence that treasures democracy must resurrect this golden goose like phoenix rising from the ashes. Lest it’s forgotten, people are the heartbeat of every vibrant democracy.

US Supreme Court Associate Justice Antonin Scalia summed it admirably: “Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly.”

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.