Sunday, April 4, 2010

The Abolished of Jury System in Malaysia

Jury is defined by Oxford Dictionary of Law (5th Paperback Edition, reissued with new covers) as a group of jurors (usually 12) selected at random to decide the facts of a case and give a verdict. The said dictionary, before, laid down the definition of the term ‘(a) juror’ as a member of a jury. Wikipedia Encyclopaedia further explains the term ‘jury’ by defining it as: a sworn body of persons convened to render a rational, impartial verdict and a finding of fact on a legal question officially submitted to them, or to set a penalty or judgment in a jury trial of a court of law.

Juries have been used in the legal system for over 1,000 years. There is evidence that they were used even before the Norman Conquest. However, in 1215 when trial by ordeal was condemned by the Church and (in the same year) the Magna Carta included the recognition of a person’s right to trial by ‘the lawful judgement of his peers’, juries became the usual method of trying criminal cases. Originally they were used for providing local knowledge and information and acted more as witnesses than decision-makers. By the middle of the fifteenth century juries had become independent assessors and assumed their modern role as deciders of fact.

King Henry II took a major step in developing the jury system. Henry II set up a system to resolve land disputes using juries. A jury of twelve free men were assigned to arbitrate in these disputes. Unlike the modern jury, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the "grand jury" through his Assize of Clarendon. Under the assize, a jury of free men was charged with reporting any crimes that they knew of in their hundred to a "justice in eyre," a judge who moved between hundreds on a circuit. A criminal accused by this jury was given a trial by ordeal. The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed. The juries under the assizes began deciding guilt as well as providing accusations.

According to Gary Slapper and David Kelly, it is generally accepted that the function of the jury is to decide on matters of fact, and that matters of law are the province of the judge. Such may be the ideal case, but most of the time a jury’s decision is based on consideration of a mixture of fact and law. The jury determines whether a person is guilty on the basis of their understanding of the law explained to them by the judge. Before hearing a case, jurors will take their oath that they ‘will faithfully try the defendant and give true verdict according to the evidence’.

Meanwhile, Catherine Elliott and Frances Quinn define the jury’s function as to weigh up evidence and decide what the true facts of the case are. The judge will direct them. The jury will be directed with the relevant law by the judge and they have to apply the facts to the law to reach a verdict. If it is a criminal case and the jury have given a verdict of guilty, the judge will then consider what sentence that would be given out. In civil cases, the jury will decide on how much money should be awarded in damages.

The jury system has many advantages to consider. Jacqueline Martin views that asking strangers who have no legal knowledge and without any training to decide may be complex and technical points is a pointless one. However, the tradition of trail by jury is very old and people seem to have confidence in the impartiality and fairness of the jury system, especially in the United Kingdom.

Another advantage that could be seen by Jacqueline Martin is the secrecy of the jury room, since they are free from pressure in their discussion. Jurors are protected from outside influences when deciding in their verdict. This allows the juries to bring in verdicts that may be unpopular with the public as well as allowing the jurors the freedom to ignore the strict ruling of the law. It had been suggested that that people would be less willing to serve on a jury if they knew that their discussions could be made public.

Since juries are not legal experts, they are not bound to follow precedents of past cases or even Acts of the parliament, and do not give reasons for their verdict. This has made juries decide cases based on their ‘fairness’. This is sometimes referred to as jury equity. Several cases have shown in the importance of this, in particular Ponting’s Case (1984), in which a civil servant was charged under the old and broad section 2 of the UK Official Secrets Act 1911. He had leaked information on the sinking of the ship, The General Belgrano, in the Falklands war to a Member of Parliament. At his trial he pleaded not guilty, claiming that his actions had been in the public interest. The jury refused to convict him even though the judge ruled that there was no defence. The case also prompted the Government to reconsider the law and to amend section 2.

According Jangjit Singh, a senior criminal lawyer, he supports the idea of reviving the jury system. When asked about the idea of revival of the jury system, he stated:

This is definitely a step in the right direction. I support it wholeheartedly. To me, it gives the true meaning to justice. The main reason for jury trials is the traditional thinking that someone charged with an offence where the penalty is death, the facts of his case are to decided by his peers, namely the Malaysian community, regardless of race, class and creed. By doing this, you take away the burden of the judge.
The judge can concentrate on looking at the law and legal technicalities like the introduction of confessions, whether a statement is voluntary or involuntary. These are technical matters the judge can concentrate on.”

Furthermore, he added that:

“Jurors are "innocent", they see the facts pure and simple, and that’s it; unadulterated. Because they’re individuals. Sometimes a judge is influenced by what he hears outside, whereas it’s not easy to influence seven jurors.

When asked about whether he has faith in Malaysians are capable in serving as juries, he states that:

“I have absolute faith; not a single member of the jury in my past cases (Jagjit has been in practice for 38 years) has been disappointing. Not only do I have faith, I have confidence in their honesty and integrity. I’ve had jury trials where they ask questions when they’re not clear, so it’s not that they’re sitting there like a bunch of seven idiots. They may appear quiet, but you know that they’re paying full attention.”

Apart from the advantages, there are also weaknesses of the system. Wu Min Aun had criticised on the juror’s inability through lack of experience in its proper perspective; they are also often accused of being susceptible to speech-making. Furthermore, most people who are called upon to serve as jurors look upon their tasks with distaste because of the time and expenses involved and this may affect their attitude in court.

There is a decline in the popularity of the jury system in several common law countries, and in Singapore and Malaysia, it had been totally abolished. The current view is that justice can be equally well administered without the jury system.

Prof. Shad Saleem Faruqi, a Universiti Teknologi Mara constitutional law expert, had been interviewed on his opinion of the system and he strongly disagrees with the idea of revival of the jury system in Malaysia. He stated that:

It has been felt that jurors, being ordinary people, are prone to the passions, pride and prejudices of human beings. In judging cases, one has be detached. That isn’t always possible for a layman. One has to act from behind the veil of ignorance about his own race, religion, gender, economic and professional position.

You’re a woman, but as a juror you can’t act as a woman; you have to act an agent of justice. This is almost impossible.

This may be an elitist point of view but some feel that jurors can’t act impartially, unlike a judge. True, not all judges can act with such disinterest and impartiality but they are better trained. The first objection would be asking jurors to decide on questions of fact.
This is dangerous because jurors neither have the professional need nor the training to disregard their own passions and prejudices which a judge is trained and required to do.
The second problem is that clever lawyers with a lot of drama and histrionics are able to play on the jury’s emotions to arouse sympathy, distrust or hatred to secure a verdict of guilt or innocence. Jurors are much more susceptible to histrionics than a judge.”

Jacqueline Martin further added that the compulsory nature of jury service is out of favour of the public, so that some jurors may be against the whole system, while others may rush their verdict in order to leave as quickly as possible. Jury service can be a strain to the jurors, especially when they have to listen to horrific evidence. In the United Kingdom, in the case of Rosemary West, the jurors were offered counselling after the trial to help them cope with the evidence they had to see and hear.

In R v Kronlid (1996), three protestors were charged with committing criminal damage, and another was charged with conspiracy to cause criminal damage, in relation on an attack on Hawk Jet aeroplanes that were about to be sent to Indonesia. The damage on the planes was allegedly amounted to $1.5 million, and they did not deny their responsibility for it. Their rested their defence on the fact that the planes were to be delivered to the Indonesian State, to be used in its allegedly genocidal campaign against the people of East Timor. On those grounds, they claimed that they were, in fact, acting to prevent the crime of genocide. The prosecution cited assurances, given by the Indonesian Government that the planes would not to be used against East Timor, and pointed out that the UK Government had granted an export license for the planes. As the protestors did not deny what they have done, it was apparently a mere matter of course that they would be convicted as charged. The jury, however, decided that all four of the accused were innocent of the charges laid against them.” A government Treasury minister, Michael Jack, subsequently stated his disbelief at verdict of the jury. As he stated:

“I, am I am sure many others, find this jury’s decision difficult to understand. It would appear there is little question about who did the damage. For whatever reason that damage was done, it was plain wrong.” – ((1996) The Independent, 1 August)

It is perhaps that just such a lack of misunderstanding, together with the desire to save money on the operation of the legal system that has motivated the government’s expressed wish to replace the jury trails with other methods such as the single judge hearing in the courts.

Further stated by Wu Min Aun, one of the criticisms levelled against the jury system in Malaysia is that it is primarily main-class, English educated and all male in composition. Another weaknesses is that many people are either exempted or may claim exemption from jury service, for example, Ministers and Assistant Ministers, judges, members of the Parliament and State Legislative Assemblies, heads of government departments, members of the police and armed forces, prison officers, advocates and their clerks, registered medical practitioners, registered dentists and pharmacists, persons employed in the Postal, Telecommunication and Customs Departments, consular offices and persons who are not readily to understand and converse in the English language. There was a quote by Jerome Frank on the lack of requisite skills by jurors:

“We couldn’t make head and tail for the case or follow all the messing about that the lawyers did. None of us believed the witnesses on either side anyways, so we made up our minds and disregard the evidence on both sides and decide the case on its merits.”

An extract from a letter made by the Honourable John Maude, Q. C. and published in The Daily Telegraph on 6th February, is a fair summary of the view held by some English critics in a country where the jury system is as old as the legal system. He wrote as follows:

“The jury system is the most inefficient, slow and costly. Intricate lengthy cases have to be decided by juries who are inexperienced and without any sort of instruction until the last minute, by a judge’s summing-up; they are not accustomed to retain the spoken words in their memories, and are not often found to be taking notes, that they may be often reluctant, for irrelevant reasons, to accept police evidence; that they may be fearful of convicting because of a kind-hearted dislike of being in any way responsible for a fellow human being going to jail; they may well be fearful of their own inability to do the job properly and they may be actuated largely by prejudices.”

Based on a few old Malaysian cases when the jury system was still in application during that time, the judges of these cases had commented and criticised on the verdict and understanding by the jurists on the facts of the case.

The first case, Ramiah v PP, the appellant was charged with culpable homicide under section 300 and 304, with exceptions under section 300 under the Penal Code. The appeal case was heard in the Federal Court. The hearing judge, Lee Hun Hoe C.J. (Borneo) held that:

“We consider that the summing-up as a whole is inadequate for the jury to reach a proper verdict on the evidence. The summing-up was too sketchy. The intention to kill was not properly examined by the jury. Also, the jury were not properly directed concerning the fundamental principle of our criminal law on the presumption of innocence.

With regard to the exceptions under section 300 under the Penal Code, it is clear that unless the act done constitutes, at least prima facie, murder by reason of the intention with which it is found to be done, the learned Judge need not have to direct the jury to consider them.

In our view an offence may amount to culpable homicide under section 304 of the Penal Code even though it does not come within any of the exceptions under section 300 of the Penal Code. If the exceptions under section 300 are not applicable then the learned judge should not refer to them as they may confuse the jury in their consideration. There is no doubt that the deceased was killed as a result of the injuries which were clearly not accidental.

In the summing-up nothing was said about the caution statement. Having admitted it the learned judge should inform the jury that the caution statement was part of the prosecution case. It is their duty to consider the truth of the statement and the weight given to it. If the jury was properly directed on the question of the intention, the result might well be different. However, it is difficult to say the appellant acted with the intention of causing such bodily injury as he knew to be likely to cause death or as is sufficient in the ordinary cause death or as is sufficient in the ordinary course of nature to cause death.”

On the other hand, in another case that was tried by jury, Teoh Seng Lian v PP, where the appellant was charged with murder. There had been a misunderstanding between the appellant and the husband and the deceased. The defence evidence showed that when the appellant asked for a loan of money of the deceased she refused, scolded and chased him, hitting him with a broom, and then throwing a knife at him. The knife missed and fell in the ground. Both went for the knife but the appellant gained possession of it and slashed her. When she fell on the ground, he picked a stone and hit on her head. At the trial with a jury, only two types of defence were brought to the attention of the jury by the judge, viz., the exercise of right of self-defence and whether there was a grave and sudden provocation. The jury returned a majority verdict of guilty by 5 to 2.

The appellant appealed it to the Ipoh Supreme Court. In the appeal, it was held by Syed Agil Barakbah S.C.J. that a judge sitting with a jury must put to them any defence available on the evidence irrespective of whether or not reliance has been placed on that defence at the trial or whether or not it has been mentioned by the counsel at the trial. The way in which it is to be compiled with is a matter for the trial judge to decide base on the actual evidence adduced at the trial. In this case the trial judge’s to the jury on the law relating to the right of private defence was sketchy and inadequate as to enable them to fully understand the law and appreciate the principles relating to self-defence. He also did not explain Exception 2 of section 300 of the Penal Code. This non-direction was fatal to the defence case on the ground that the jury being layman were not made aware of the legal principle that while the proper exercise of self-defence by the accused in causing the death of the attacker does not amount to any criminal offence, the exercise of such right in excess of power given by the law which results in the death of the opponent does not amount to murder if exercised in good faith and under the circumstances stated in the Exception but amounts to culpable homicide not amounting to murder. There was a failure to direct the jury on an essential point and the non-direction has occasioned a failure of justice and in this also, case it was the duty of the trial judge to have invited the attention of the jury to Exception 4 to section 300 of the Penal Code and explain to them the principle applicable thereto. In Exception 4 notwithstanding that a blow has been struck or provocation given in the origin of the dispute, it is the subsequent conduct of the parties which puts them upon equal footing in respect of guilt that is material. It should then be left to the jury to consider whether the appellant had taken an undue advantage or acted in a cruel or unusual manner;”

Malaysia's government has shot down calls to allow trials by jury, citing possible racist bias, corruption and a lack of legal knowledge among jurors, a newspaper reported Wednesday. Attorney General Abdul Gani Patail recently proposed that jury trials be revived, saying they are a better way to dispense justice. But Nazri Aziz, the minister in charge of law, told Parliament Tuesday that it makes more sense for a learned judge to decide a case than a seven-member jury lacking legal training, the New Straits Times reported. "We see no reason to bring juries back as the present system is adequate," the newspaper quoted Nazri as saying. "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 color." Nazri could not be immediately reached for comment Wednesday.

More than half of Malaysia's 26 million people are ethnic Malays, while 25 percent are Chinese and 10 percent Indians. Although racial violence is almost unheard of in Malaysia, some prejudices and racial stereotypes persist. Nazri said jurors could also be susceptible to corruption. "Judges, who are highly trained and respected, can attract the suspicion of corruption and abuse of power. What more seven members of the public? One would only have to bribe four jurors to win a case." Nazri said wide-eyed jurors could be easily influenced by skillful lawyers. "Inexperienced jurors may be easily swayed into believing lawyers' arguments, unlike a judge with vast experience and knowledge," he said.

Malaysia abolished jury trials and preliminary inquiries ─ remnants of British colonial era laws ─ 11 years ago because they were considered irrelevant and an impediment to quickly disposing of cases. The attorney general had, however, contended that the Malaysian public has matured enough in the last decade to understand social issues that have a bearing on cases. Abdul Gani said jury trials are more conclusive, because the judge uses his legal expertise to guide the jury on the questions of law while the ordinary people on the jury decide on the facts.

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