OF JUSTICE, JUST US, JUDGES AND JURIES

[1] The jury system, according to historical sources, was instituted in England during the reign of Henry II in the year 1177 and ratified in the Magna Carta in the year 1215, the Universal Declaration of Human Rights 1948, and other international covenants, and is still very much in vogue. Malaya adopted it in 1958 according to available research. There is no evidence that it was a political decision given the circumstances peculiar to the doctrine of the separation of powers. The jury as the fact analyzer need not be in judicial robes.

[2] Countries with jury systems, primarily rooted in English common law, include the United States, United Kingdom, Canada, Australia, and Ireland, while many civil law nations (like most of Europe) use lay judges, though some, such as Austria, France, Russia, and South Korea, incorporate jury elements or hybrid systems. The U.S. uniquely guarantees juries for both civil and serious criminal cases, contrasting with other nations that often limit juries to severe criminal matters or have abolished them for a host of reasons and purposes.

[3] Malaysia abolished the jury system on 1 January 1995 for both criminal and civil trials. Apparently, the Mona Fandey case saw its demise because of the media sensation it caused. Hullo, freedom of the press and speech? Why the judge(s) failed to issue a gag order to the media at that point in time is a still burning question when the Internet was a distant dream. Disobeying or defying a gag order is contempt of court freedom of speech notwithstanding. But you are allowed to shout “fire” in a crowded theatre if indeed there is a fire!!

[4] The whole idea of a trial by jury which decides the facts is crucial simply because jurors – ordinary adult citizens – are aware of the vagaries, peculiarities, and weirdness of life, and quite unaware of the thickets, thorns, claws, flaws, and brambles of the law. Judges, on the other hand, generally, are said to lead cloistered lives away from the din and bustle of ordinary social life because of their judicial office. Therefore, only the judge decides on matters and issues of law. Each has a role to play to yield honesty and integrity in decision making where the accused and charged is innocent till proven guilty.

[5] The fact that adult Malaysians are allowed to vote their state legislators and MPs but not allowed to sit as jurors is a paradox if not a contradiction in terms. It has been said and accepted that the public welfare is the supreme law – salus populi est suprema lex. Government exists because of the public. Yet the public remains controlled, stymied, and regulated like it’s an incorrigible miscreant. Mild fascism tempered by the Sedition Act 1948 and other restrictive legislation is an affront to social democracy. But voters seldom get their voices heard.

[6] Is it possible that the government of the day is fearful of a jury verdict involving a prominent public official because the seriousness of the charge(s) could bring partiality to the verdict? But the government has a very effective weapon and tool with the power of the Attorney General contained in Article 145(3) Federal Constitution relating to initiating anddiscontinuing prosecutions. If the voting public can decide whom they wish to vote for, why not give them an opportunity to study, weigh and analyze the facts in a court of law? The government does not trust its citizens as jurors but trust their voting decisions? Paradox heaped upon doublespeak is an acceptable political whim.

[7] Why not reinstitute the jury system and reinvigorate jury selectionso that justice can be seen to be done in both civil and criminal trials? The prosecution and defense must surely be eminently qualified to question potential jurors to detect bias and partiality which will openly become a disqualification. What will it take with a reform-minded government that makes promises that are usually unfulfilled? Change of attitude is simpler than a change of government. NGOs should step in and join the call to bring back the jury in Malaysian jurisprudence.

[8] Multiracial and multireligious Malaysiacan wake up to a new day when the jury system is back on track. Malaysians are now, most certainly, politically mature especially since access to instant knowledge and information is available at a click of the keyboard. Why doesn’t the Madani government trust the voting citizenry when the jury bank is as powerful as the vote bank? Why worry about Gaza and Palestine when your own backyard is full of toxic and untended weeds? Where are your priorities?

[9] Madani government is rhetorically speaking of “unity government” and all the usual platitudes, but where is it aimed at and where is it going? Day in and day out the licensed newspapers echo the great and noble things the government is doing … blah blah blah … but YAB Rakyat hardly sees the evidence or the proof of the well-being of the nation. Everything does look good peripherally but can it get better for the well-being and advancement of the nation.

[10] The aspirations and expectations of the YAB Rakyat are clearly, cogently, and conclusively expressed in social media platforms with no holds barred which it is hoped the Madani government is watchful of and paying attention to instead of waiting to nail someone under the misunderstood and misapplied Sedition Act 1948 or SOSMA.

[11] “Trial by jury is more than an instrument of justice and more than a wheel of the constitution; it is the lamp that shows that freedom lives,” wrote Lord Devlin (1905-1992) in his 1956 book, “Trial by Jury.” But Malaysia decided to be eclectic by holding on to some imported British elements of jurisprudence and discarding some equally vital ones. Political maturity becomes a myth and a fallacy when the Executive branch of government dictates terms to lawmakers, law appliers and law enforcers. Maybe we are destined to function better in darkness while using broken tools and instruments. The culture of jejune jurisprudence.

[12] If the Madani government seriously cares for YAB Rakyat that constitute the vote bank, better accommodation and engagement with the jury system must become a fundamental right because “just us” is not applicable to the mandates of justice. The public cannot be fooled anymore. The public has come of age. What can we lose if we bring back the jury system? The Malaysian jury will be well-equipped to fathom manufactured and fabricated facts, lies and deception in a flash. Justice can be served when “just us” is openly exposed as people who believe they are above the law. DNAA and NFA are still extremely effective political tools cleverly engineered into the Procrustes bed of forced accommodation by a pliant judiciary.

[13] A national referendum on reintroducing the jury system will be meaningful and effective if the Madani government is serious about reform and change. As Mark Twain said, “the secret to getting ahead is getting started.” We will not be putting a ban on honesty and integrity once the jury system is back on track in Malaysia. If Malaysians are willing to vote and be relied upon to pay their taxes, they certainly qualify to sit in a court of law as jurors. It’s not complicated.

///////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////