LORD Denning has said that the jury trial “was the bulwark of our liberties”. The absence or compromise of the liberties of subjects will also lead to political and economic instability – and most importantly, it may end up in a security threat to the nation itself.
The jury system guarantees citizens will be tried by their own peers. It is my observation that English principles of 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 is 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 the justice system itself is put under avoidable pressure and is evidenced by political and public criticism.
It is important to note that the British public never had absolute faith in British judges to try all criminal cases. Magistrates can only try trivial offences. The accused, to date, has a choice to opt for 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.
Political instability, public split up
The good thing about the jury system in England is that there will be preliminary inquiries referred to as Committal Proceedings before a magistrates’ court to decide whether the purported offender should be charged and tried by jury. This proceeding will be a check on prosecutorial abuse among others.
The Malaysian public as well as 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 a previous government for wrongdoings during their term of public office.
These actions, though justifiable under the current law, also create animosity among political supporters and a fertile ground for economic instability. It also has created a dent in the administration of justice when compromises are made after a person has been charged.
The first major event I witnessed had initiated and split the unity of the Malaysian public was the prosecution or persecution of Datuk Anwar Ibrahim. This case is still an ongoing debate, and a whistle-blower judge as per his Oath of Office to preserve, protect and defend the federal constitution had filed an affidavit on the subject, but 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 had also blown their horns in the past but they too had been put to rest.
The prosecution or persecution of Anwar Ibrahim also led to political instability which provided a fertile field for corruption and corrupt practices to flourish during his time in the prison.
Trying of facts not under judge
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 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 due process of law.
The benefit of RCI, which is a public proceeding, 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 trying of facts will not be in the hand of judges and they 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, the removal of the criminal jury system had led to high corruption perception index, as well as public perception that the government of the day is interfering with the administration of justice to achieve their political agenda.
The trying of facts in civil and commercial matters can be resolved by introducing University cum Court Annexed Arbitration in the court system. A jury trial for criminal matters can be easily revived in Malaysia by reinstating the repealed provision for a jury trial and making some amendments to ensure politicians and public personalities are tried by the jury system for serious offences and made applicable to all accused. 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 the removal 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 the arbitration pool can be conveniently used to select the jury from the arbitration pool itself. The program is capable of training fifty thousand arbitrators within six months if the prime minister consents to the concept as explained in a number of my recent articles. – The Vibes, August 21, 2023
Datuk Hamid Sultan Abu Backer is a retired judge of the Court of Appeal, and professor of Arbitration and Dispute Resolution at Mahsa University
