Juries are strange creatures. Sometimes they are lauded as critical bastions of justice, at other times they receive sentiments of quite the opposite variety.[i] The return to citizen participation represents a bold commitment to enable ordinary Malaysian taking greater responsibility in running the country. If a jury is sufficiently unhappy with the government’s case or the government’s conduct, it can simply refuse to convict. This possibility puts powerful pressure on the state to behave properly and ultimately leads to better governance. For this reason, a jury is one of the most important protections of a democracy.
The quest for justice requires us to begin anew and think things afresh, and in that respect I commend the Attorney-General. I have lots of reservations because juries are used in only certain cases. The couple that was charged for holding hands in KLCC, was their behaviour offensive? I think the judge is disqualified to determine that. A mixed composition of Kuala Lumpur citizens are better suited to decide whether certain conduct makes us malu (embarrassed), or it doesn’t. A judge may bring his own liberal or conservative views and I don’t feel so safe. Jury trials will be useful in a case like that. I hope the authorities will allow a full and fair discussion on this issue before we decide on it. Discussion must be re-opened on the types of cases and qualification of jurors.
Does the jury system guarantee that justice will be served? First of all, there are no guarantees in life. Someone who sleeps today can only hope and pray that he’ll wake up tomorrow morning, but jury system allows a man to be judged by people just like him, ordinary people.
An institution which determines the guilt or innocence of citizens of this country in the most serious of criminal cases cannot be allowed to keep its place at the centre of our legal system without being subject to the sort of rigorous examination all legal institutions and precepts have experienced over the past few years. It is time to commission a properly funded, detailed study of how the jury works.[ii] It is absurd to continue in the present state of ignorance in the pretence that the functioning of the jury is one of the great mystique of the law which is so sacred that it cannot be questioned. If civil and criminal juries work well we should keep them. If they are hopelessly inadequate they should be thrown out altogether. It is much more likely, as always, that the truth lies somewhere in between. Their use should probably be limited – it is almost certain that they shouldn’t try fraud cases. It is highly probable that the procedural methodology could be considerably improved. Experience suggests that juries are a suitable case for scrutiny and probably a suitable case for treatment.[iii]
Like democracy, jury trial is worth fighting for. But this support of the process will be wasted if we pretend that its difficulties do not insist. In all other areas of our lives, we question the traditional and use new knowledge to make it work better. We adapt what we have.
Lord Denning, in Ward v James[iv], also suggested:
It (trial by jury) has been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man is on trial for serious crime or when in a civil case a man’s honour or integrity is at stake . . . then trial by jury has no equal.
However, for there to be continued confidence in the jury system, the public surely needs to see that it conforms to current ideas of fairness. The requirement that jurors need to be confident that their discussions will not be disclosed if they are to deliberate should be balanced by an expectation that if there is an obvious irregularity, or something points towards such an irregularity, then proper inquiry will be made and, if appropriate, a verdict will be set aside.[v]
We need to help jurors to feel at home with the system. We either trust them or we don’t have them at all. Right at the start of the trial, a jury should be told by the judge about all its powers and responsibilities. It should be guided how to take notes, evaluate evidence and how and when to put questions, especially during the course of a trial when questions can be dealt with by evidence. Too often juries ask questions during their deliberations when the trial is over and have to be told “there can be no more evidence.[vi]
In a nutshell, the jury system is the most important part of our trial procedure. It is the system that the public trusts, our peers judging us in a clear non-cynical way. It should be nurtured and allowed to flourish to its full potential. It was Lord Devlin who wrote: “Jury trial is an insurance that the law and prosecuting process conforms to the ordinary man’s idea of what is fair and just, and is the ultimate protection against tyranny.”[vii]
[i] Pallasch, Abdon M. Napping Juries Giving Courts a Wakeup Call. Chicago Tribune, April 16, 1998.
[iii] American Judicature Society. Behind Closed Doors: A Guide for Jury Deliberations (1999).
[iv]  1 All ER 563.
[v] Trial by Jury: Reforms Are Needed to Stabilize the Pool, COLUMBUS DISPATCH, Sept. 6, 1999, at 8A.
[vi] American Judicature Society. Behind Closed Doors: A Resource Manual to Improve Jury Deliberations.
[vii] Green, Thomas Andrew. Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (1985), Introduction, pp. xiii-xx, and especially Ch. 6 “The Principle of Non-Coercion: The Contest over the Role of the Jury in the Restoration,” pp. 200-264.