MAQASID AL-SHARIAH – AN OBJECTIVE FROM A PRISM OF WEALTH

1 Feb

by Ng Boon Ka 2008

Many a time scholars have resorted to the literal interpretation of the texts without piercing through the ‘veil’ to look behind the intended meaning and the associated context as they presumably take a conservative stance for fear of unjustifiable innovation (bidah). Howbeit, this fear itself is unjustified as not all modern innovations are contradictory to the Prophetic practice (sunnah) in toto. It is, therefore, in this predicament that the revivalism of the maqasid al-Shariah particularly in wealth is pertinent in our contemporary world. Maqasid al-Shariah can be aptly described by the succinct words of Prof. M.H. Kamali as a science of the Shariah in its own right which is largely concerned with the philosophy of the law, its outlook and objectives, rather than the formulation of its specific text.

The dual nature of al-maqasid in terms of ibqa (preservation) and hifz (protection) was discussed by Al-Ghazali in his Jawahir al-Quran. It is opined that the preservation of wealth can be metaphorically described as having its roots in the availability of wealth (essentials / daruriyyah), its branches in wealth circulation (complementariness / hajiyyah), and its blossoming fruits in the investment and growth of wealth (embellishment / tahsiniyyah). With regard to wealth protection, the growth of wealth would be superfluous akin to building a ship under the basement if there is no safeguard of its ownership and transmission (or inheritance).

Given that juristic differences (ikhtilaf) are blessings, al-maqasid approach plays an inspiring role to cherry-pick the preferred opinions amid jurisprudential disagreements. In other words, al-maqasid can provide an end which may accommodate different means (views). As time and circumstances have changed since the Prophetic era, to remain stagnant for fear of deviation would present a simplistic view of things. While al-maqasid is stable, the means are adaptable to time and space. Hence, with al-maqasid, the need for the furtherance of traditional legal rules governing Islamic financial products and activities can be pragmatically appraised.

Fresh air must be breathed into the body of the Shariah to revitalise the significance of al-maqasid in catapulting the Islamic wealth to its highest apogee, both in quantity and in quality. While opening more gates to achieve al-maqasid is a virtue, the development of wealth in Islamic finance should heed to the gradual and systematic nature of the Quranic revelation (tanjim). In fact, the growth of Islamic finance is a means of preaching (da’wah) to achieve the higher objective of Islamic monotheism and an end to improvise the livelihood of all mankind. That said, the Islamic objective of wealth which is allegorically acknowledged as the ‘last jewel of the Shariah crown’ (wealth being ranked the ‘lowest’ among the five objectives, i.e. religion, life, intellect, lineage, and wealth) should neither be achieved in isolation nor overlooked by the pursuit of other higher objectives.

This article was published in Berita Kijang of Bank Negara Malaysia in 2008.

THE PENDULUM THAT SWINGS THE STANDARD OF PROOF AT THE END OF THE PROSECUTION’S CASE IN MALAYSIA*

1 Feb

by Ng Boon Ka**

PENDULUM SWINGS

PENDULUM SWINGS

“Since the landmark decision in Haw Tua Tau, there had been a plethora of differing cases exemplifying the ‘dawn’ and ‘dusk’ in standard of proof at the end of the prosecution’s case. This conflict had eventually dictated the legislative amendment of section 173 (f) Criminal Procedure Code in year 1997 which provided for ‘prima facie’ to be the standard of proof required at the end of the prosecution’s case, hence, negating the effect of Arulpragasan and reviving the minimum evaluation test. Nonetheless, the term ‘prima facie’ was merely a symbolic label as it was open to two tests, namely the maximum and minimum evaluation. However, from the Islamic perspective, the claimant must prove the case beyond any shadows of doubt with the highest standard of proof where maximum certainty is ensured. The pendulum with respect to the meaning of ‘prima facie’ had deplorably swung back to the pre-Haw Tua Tau cases despite the amendments. This is not only a blatant exodus of the legislature’s plain intention, but is also against the public interest that no guilty person should be acquitted without the paramount consideration of our criminal justice system.”

INTRODUCTION:

The neoteric judicial approach taken by the Federal Court’s decision in PP v Mohd Radzi Abu Bakar[i] had indubitably provoked both favourable and inauspicious discourse at the corridors of the courts as well as in the vestibules of academicians. Notwithstanding the legislative amendment made in year 1997, which supposedly had laid down the true letter and spirit of the provision governing the standard of proof at the end of the prosecution’s case, yet there were numerous differing interpretations adopted by our honourable judges. In this regard, two extreme world views were projected. On the one hand, it has been held that the prosecution must prove its case beyond reasonable doubt at the end of the prosecution’s case by crossing the threshold of the ‘maximum evaluation’ in order to call for defence. On the other hand, it has also been decided that the courts must undertake a ‘minimum evaluation’ in determining whether the prosecution had made out a prima facie case against the accused at the end of its case.

This incertitude development of standard of proof required by the court at the end of the prosecution’s case had undoubtedly driven us to determine whether the application of the current section 173 (f) Criminal Procedure Code (CPC) truly reflects the principle enunciated in Haw Tua Tau[ii] in the light of the amendments made in year 1997 and some recent courts’ decisions. Thus, this article shall endeavour to provide us with some perspicacity as to the two conflicting views that have perplexed the mind and blurred the vision of many academicians and legal practitioners in the legal fraternity into a minefield of ambiguities.

THE PRE-HAW TUA TAU APPROACH:

Standard of proof, as defined in Oxford Dictionary of Law[iii], is the degree of proof required for any fact in issue in litigation, which is established by assessing the evidence relevant to it. In other words, it is the size and quantum of the legal burden of proof on a particular issue which need to be discharged. In criminal cases, there is not an iota of doubt that the prosecution must prove its case beyond reasonable doubt at the end of the entire case in order for a conviction to stand.[iv] Howbeit, the bewilderment that constantly crops up as to what standard of proof that is required at the end of the prosecution’s case is still not fully settled yet.

Prior to its amendment, section 173 (f) CPC read as follows:

“If upon taking all the evidence hereinbefore referred to, the Court finds that no case against the accused has been made out, which if unrebutted would warrant his conviction the Court shall record an order of acquittal.”

One may also look at section 180 CPC which provides that,

‘‘When the case for the prosecution is concluded, the court, if it finds that no case against the accused has been made out, which if unrebutted would warrant his conviction, shall record an order of acquittal or if it does not so find, shall call on the accused to enter his defence.’’

Gordon-Smith Ag JA in PP v Chin Yoke[v] defined prima facie, by referring to Mozley and Whiteley’s Law Dictionary[vi] as:

A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side.[vii]

In Man bin Abbas[viii], Howes J. seemed to imply that when a prima facie case at the end of the prosecution case was made out, and the defence was called, the magistrate must convict should the accused elect to remain silent.[ix] Given this approach, the court in PP v Chin Yoke[x] held that the prosecution must prove their case beyond reasonable doubt in order to entitle the calling of the defence.[xi] In Ong Kiang Kek v PP[xii], Wee Chong Jin CJ stated that no conviction can be warranted unless at the close of the case for the prosecution, the court is left with no reasonable doubt as to the guilt of the accused. Furthermore, a similar approach was espoused in PP v Saimin[xiii] where Sharma J affirmed that the burden of proof remains on the prosecution throughout the trial. That being the case, the evidence discloses a prima facie case only when it is uncontradicted and if believed, it will be sufficient to prove the case against the accused. This would mean that before the defence could be called, the court had to make a maximum evaluation of the evidence adduced by the prosecution and that the prosecution witnesses would have to be subjected to a rigorous test of credibility.[xiv] In other words, the phrase ‘if unrebutted would warrant his conviction’ in both section 173 (f) and section 180 is strongly worded which, given its literal interpretation, would demand an exceptionally concrete reason before the accused is called to answer the charge.

EVIDENCES

EVIDENCES

THE EVOLUTION OF THE POST-HAW TUA TAU APPROACH:

This strict approach which required a maximum evaluation of the evidence as an actual question of fact involving the assessment of the credibility and accuracy of witnesses and evidence was applied by our courts quite consistently until the Privy Council’s decision on appeal from Singapore in the case of Haw Tua Tau v PP[xv] where Lord Diplock held that section 188 of the Singapore CPC [identically worded as our section 173 (f) CPC before amendment] only involved a hypothetical question of law requiring minimal evaluation of the evidence at that stage.[xvi] The court must act on the presumption that all such evidence of primary facts is true, unless it is inherently incredible[xvii] that no reasonable person would accept it as being true, and there will be nothing to displace those inferences reasonably drawn from the primary facts.

This minimum evaluation test requires the judge, being the decider of law and not facts, to keep an open mind about the veracity and accuracy of recollection of any individual witness until after all the evidence from both sides has been heard at the close of the defence’s case. With the Haw Tua Tau[xviii] approach, the defence may be called if there is some evidence (but not enough to prove the prosecution’s case beyond reasonable doubt) against the accused.[xix] As such, it is a matter for the prosecution to adduce sufficient evidence, which is not inherently incredible, in order to prove each and every essential elements of the offence charged directly or to enable its existence to be reasonably inferred.[xx]

Nevertheless, the application of this test was not consistently utilized in later cases. In 1987, Mohd Azmi SCJ in Munusamy v PP[xxi] stated that, ‘‘the learned trial judge did not err in law in dealing with the credibility of the witnesses at the close of the prosecution case and there was nothing in Haw Tua Tau[xxii] to suggest that the prima facie case approach enunciated in PP v Chin Yoke[xxiii] was wrong in principle.’’ This connotes that the prima facie case is based on a ‘hypothetical beyond reasonable doubt’ case as the court must by necessity evaluate and weigh all the evidence which if unrebutted would warrant a conviction. At the same time, the learned judge, by contrast, held that, ‘‘there must be some credible evidence to prove the essential ingredients in the charge.’’ In this regard, Tan Sri Prof. Ahmad Ibrahim in his article, ‘The Burden at the End of the Prosecution’s Case- Haw Tua Tau Revisited[xxiv], by disagreeing with the decision in Munusamy[xxv], commented that the court should only consider whether the evidence adduced by the prosecution to support the essential elements of the charge was or was not inherently incredible by applying the minimal evaluation test.

Despite the confusion in Munusamy[xxvi], it was followed and confirmed in the case of Junaidi bin Abdullah v PP[xxvii] where Mohd Azmi SCJ held that by calling on the defence, it should be assumed that the trial judge must have been satisfied that the prosecution had established a prima facie case which if unrebutted, would warrant a conviction of the accused. On the same token, the five Supreme Court judges in Khoo Hi Chiang v PP & Anor Appeal[xxviii], unanimously decided that the correct test to be applied at that stage was that of a maximum evaluation of such evidence to determine whether or not the prosecution had established the charge beyond a reasonable doubt. In fact, since Lord Diplock had equated the duty of a court of trial in a non-jury case with that of a judge sitting with a jury, the approach in Haw Tua Tau[xxix] is unsuitable as jury trials had been abolished in Malaysia with effect from 17th February 1995.[xxx]

However, Mohd Azmi FCJ in Tan Boon Kean v PP[xxxi] differed from Khoo Hi Chiang[xxxii] in that his Lordship held that the case required to be established at the end of the prosecution case is ‘prima facie’ and not ‘beyond reasonable doubt’ even though the court has to carry out a maximum evaluation of the evidence. These conflicting decisions eventually necessitated a seven-judge panel to resolve the issue which arose again in the landmark case of Arulpragasan a/l Sandaraju v PP[xxxiii]. The Federal Court, in ruling on the appeal of a lorry attendant S. Arulpragasan who was sentenced to death for drug trafficking, decided that,

‘‘the standard of proof required from the prosecution at the close of its case, in a non-jury trial in Malaysia was the usual criminal standard of proof, to wit, the beyond all reasonable doubt standard of proof, which called for a maximum evaluation of the evidence tendered by the prosecution.’’

When a judge sitting alone decides on both fact and law, Edgar Joseph Jr FCJ in Arulpragasan[xxxiv] said that it would be highly artificial to require a judge to suspend judgment on obvious unreliability of the prosecution’s evidence and confine himself to the hypothetical question of whether there is evidence on which a hypothetical jury might or could convict. Given that the main objective of a submission of ‘no case to answer’ is to protect an accused person against the prosecutor who has failed to make out a case and hopes to repair the deficiencies in his own case by cross-examining the accused and his witnesses, his Lordship enunciated that, ‘‘the greater the burden on the prosecution to establish a case, the greater the protection offered to the accused.’’ Similarly, Eusoff Chin CJ held that if the accused elects to remain silent and calls no evidence, he would have failed to rebut the evidence adduced by the prosecution and the court must be prepared to convict him. Thus, it is trite law that the onus is on the prosecution throughout the case in any criminal trial to prove the charge against the accused beyond reasonable doubt. To this effect, the same standard of proof applies at the intermediate stage of the trial, namely at the close of the prosecution case.[xxxv]

LEGISLATIVE AMENDMENTS IN YEAR 1997 AND ITS ENSUING AFTERMATH:

On December 18, 1996, the Parliament passed the Criminal Procedure Code (Amendment) Act A979 which provides for prima facie to be the standard of proof required at the end of the prosecution’s case, hence, negating the effect of Arulpragasan[xxxvi] and reviving the minimum evaluation test which was endorsed by Lord Diplock in Haw Tua Tau[xxxvii]. In this regard, Datuk Abang Abu Bakar Mustapha, the former Minister in the Prime Minister’s Department, said that,

‘‘…because cases differed from each other, there should not be any standard definition of the prima facie term. To have a standard meaning would be restrictive to the administration of justice.’’[xxxviii]


THE EXODUS OF THE LEGISLATURE’S INTENTION:

The amendment of section 173 (f)[xxxix] and section 180 was thought to have settled the issue regarding the interpretation of ‘prima facie’. Nonetheless, Clarence Edwin in his article, ‘Beyond Reasonable Doubt-The Golden Thread Weakened?[xl] stated that,

‘‘it will merely be a waste of the court’s time for the accused to enter upon his defence and at the end of his defence decide that the evidence tendered by the prosecution lacks cogency (by this I mean that the evidence is not conclusive as to the accused’s guilt) when in fact this conclusion could have been drawn at the close of the prosecution’s case. It is unthinkable that the accused should adduce evidence incriminating himself in order to mould the prosecution’s already weak case into one that is beyond reasonable doubt…With the advent of the amendments, it appears that the Legislature has perhaps ‘whittled down’ an essential principle of the common law and the golden thread which runs through the web of criminal law may no longer be evident.’’ (emphasis added).

On the same token, VT Singham in PP v Syed Muhamad Faysal bin Syed Ibrahim[xli] stated that,

‘‘The duty of proving the guilt of the accused as framed by the charge is solely and wholly on the prosecution is well settled in law and requires no reminder or repetition. There is no obligation on the accused person to establish his innocence and there is a presumption in law that every person is innocent until proven guilty. It is important to observe that this court will not encourage any sloppy prosecution and that the prosecution must ensure that their tackle was in order. The law is firmly settled that there is no duty on the part of the accused to fill in the gaps in the prosecution case or to assume anything in the conduct of the prosecution unless in a case ‘where a presumption is invoked thereby placing an onus on the accused to prove certain facts’ which is not the situation in the instant case.’’[xlii] (emphasis added).

Departing from the aforesaid amended sections, Augustine Paul J in Public Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No 3)[xliii] , described what a prima facie case is in the following terms:

‘‘A prima facie case arises when the evidence in favour of a party is sufficiently strong for the opposing party to be called on to answer. The evidence adduced must be such that it can be overthrown only by rebutting evidence by the other side. Taken in its totality, the force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to believe in the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the credibility of witnesses must be done at the close of the case for the prosecution before the court can rule that a prima facie case has been made out in order to call for the defence.’’[xliv] (emphasis added).

In PP v Magendran a/l Mohan[xlv], Balia Yusof J described maximum evaluation in the following words,

‘‘…all the evidence adduced has to be scrutinised properly and this should not be just a perfunctory, cursory evaluation or an exercise of skimming over the surface of the evidence only. The prosecution must make out the ingredients of the charge with the evidence adduced. If the evaluation of the evidence results in doubts in the prosecution’s case at this stage of the proceedings itself then it cannot be said that a ‘prima facie’ has been made out. The defence ought not to be called merely to clear or clarify the doubt. The benefit of the doubt, if any, at the end of the prosecution’s case must go to the accused. Section 180 of the Criminal Procedure Code requires the court to ‘consider’ whether the prosecution has made out a ‘prima facie’ case against the accused. This consideration must be the total evaluation of the evidence adduced up to the stage. The degree of evaluation ie whether it should be a ‘maximum’ or ‘minimum’ one is not provided for but that, to my mind, would mean the court has to carefully and attentively consider all the evidence and thus would require a complete and full evaluation of the evidence.’’ (emphasis added).

In the latest apex court’s decision of PP v Mohd Radzi Abu Bakar[xlvi], Gopal Sri Ram JCA sitting in the Federal Court, endorsing Looi Kow Chai & Anor v. Public Prosecutor[xlvii] and Public Prosecutor v. Dato’ Seri Anwar bin Ibrahim (No. 3)[xlviii], held that,

‘‘…after the amendments to section 173(f) and section 180 of the CPC, the statutory test has been altered. What is required of a Subordinate Court and the High Court under the amended sections is to call for the defence when it is satisfied that a prima facie case has been made out at the close of the prosecution case. This requires the court to undertake a maximum evaluation of the prosecution evidence when deciding whether to call on the accused to enter upon his or her defence. It involves an assessment of the credibility of the witnesses called by the prosecution and the drawing of inferences admitted by the prosecution evidence. Thus, if the prosecution evidence admits of two or more inferences, one of which is in the accused’s favour, then it is the duty of the court to draw the inference that is favourable to the accused.’’[xlix]

Furthermore, his Lordship held that if the court comes to the conclusion that a prima facie case has not been made out after a maximum evaluation of the evidence adduced by the prosecution at the close of its case, the accused should be acquitted. On the contrary, if the court comes to the conclusion that a prima facie case has been made out using the same maximum evaluation, it must call for the defence. One may find it illuminating to note what approach that the court would adopt when the accused decides not to adduce evidence or state his defence by referring to the judgment below,

‘‘If the accused then elects to remain silent, the court must proceed to convict him. It is not open to the court to then re-assess the evidence and to determine whether the prosecution had established its case beyond a reasonable doubt. The absence of any evidence from the accused that casts a reasonable doubt on the prosecution’s case renders the prima facie case one that is established beyond a reasonable doubt. Put shortly, what the trial court is obliged to do under section 173(f) and 180 of the CPC is to ask itself the question: If the accused elects to remain silent, as he is perfectly entitled to do, am I prepared to convict him on the evidence now before me?[l] If the answer to that question is in the affirmative, then the defence must be called. And if the accused remains silent, he must be convicted. If the answer is in the negative, then the accused must be acquitted.’’ (emphasis added).

THE RESTORATION OF THE LEGISLATURE’S INTENTION:

It is humbly submitted that the preferred view is evidenced in PP v Ong Cheng Heong[li] where Vincent Ng J expressed his view on the amendment and held that the evaluation that had to be made was a maximum evaluation of the evidence but such maximum evaluation was not to be associated with the ‘beyond reasonable doubt’ standard. His Lordship pronounced that,

‘‘the maximum evaluation connotes quantitative rather than qualitative evaluation of the evidence, which focus more on the evidential burden in terms of evidence led rather than the persuasive burden in terms of qualitative degree of proof… It would follow that there should be credible evidence on each and every essential ingredient of the offence. Credible evidence is evidence which has been filtered and which has gone through the process of evaluation. Any evidence which is not safe to be acted upon should be rejected.’’

Thus, it is argued that by referring to the maximum evaluation exercise on a quantitative basis, the evidence should not be subjected to a rigorous test of credibility.

In PP v Krishna Rao Gurumurhti[lii], Kang J stated that his Lordship was not at the liberty to adopt the current approach adopted by the courts which was contrary to what was intended by Parliament. The Parliament’s intention was to endorse a minimum evaluation test and not subject the prosecution’s evidence to a rigorous test of credibility. By subjecting the evidence at the end of prosecution case to a maximum evaluation, the accused would not be given a chance to earn his acquittal at the conclusion of the trial if the court were obliged to decide at the close of prosecution that he was already guilty of the charge beyond reasonable doubt. The court must adhere to the maxim audi alteram partem where no man should be condemned unheard or without having had an opportunity of being heard. It is an indispensable requirement of justice that the party who had to decide shall hear both sides, giving each other an opportunity of hearing what is urged against him.[liii] This was also concluded by Mohamed Azmi FCJ in his dissenting judgement in Arulpragasan[liv] that an accused must be presumed innocent until proven guilty, not after hearing only the prosecution evidence, but at the conclusion of the whole trial when both sides have been heard in accordance with the rules of natural justice. Indeed, Mahadev Shankar JCA in Lt Kol Yusof bin Abdul Rahman v Kol Anuar bin Md Amin & Anor[lv], stated that,

‘‘calling for the defence is not itself a pronouncement of guilt or a conviction but a ground for proceeding with the next stage of the case when it becomes the accused’s obligation to tip the scales of justice back in his favour.’’

Previously, the Magistrate had the power to make preliminary inquiries as to certain cases before being transferred to the High Court. Since this power has been vested in the High Court now, it can be inferred that the High Court should subject the evidence at the end of the prosecution’s case to the ‘preliminary inquiries’ yardstick which is similar to the minimum evaluation test and not the maximum evaluation test. It is submitted that the judge would be able to deliver a well-rounded decision based on the totality of facts and law adduced only after hearing both the prosecution and the defence case. Only in the event that the accused elects to remain silent, the prima facie evidence which was capable of supporting a conviction beyond reasonable doubt would constitute proof beyond reasonable doubt. This is delicately put by Augustine Paul JCA in the Federal Court case of Balachandran v PP [lvi] that,

‘‘…it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt. Proof beyond reasonable doubt involves two aspects. While one is the legal burden on the prosecution to prove its case beyond reasonable doubt the other is the evidential burden on the accused to raise a reasonable doubt. Both these burdens can only be fully discharged at the end of the whole case when the defence has closed its case. Therefore a case can be said to have been proved beyond reasonable doubt only at the conclusion of the trial upon a consideration of all the evidence adduced as provided by s 182A(1) of the Criminal Procedure Code. That would normally be the position where the accused has given evidence.’’ (emphasis added).

A courageous and creative stand was taken in PP v Sidek Abdullah[lvii] where Hishamudin Yunus J held that the prosecution had established against the accused a prima facie case of the commission of the offence of possession of the specified quantity of cannabis under section 6 Dangerous Drug Act 1952 punishable by section 39A(2) thereof. His Lordship further enunciated that,

‘‘…the Court of Appeal and the Federal Court respectively in Looi Kow Chai and Balachandran ought not to have revived the maximum evaluation principle in Arulpragasan Sandaraju. Further, as was prescribed by section 17A of the Interpretation Acts 1948 and 1967, the Court of Appeal and the Federal Court, in interpreting the words ‘prima facie case’ in section 180 CPC, ought to have adopted a purposive approach thereto.’’[lviii]

If the maximum evaluation similar to a proof beyond reasonable doubt standard is adopted at the end of the prosecution’s case, it may render section 173 (m)[lix] and section 182A CPC nugatory and the amendments a mere eyewash akin to a ‘white elephant’ since both sections expressly and clearly provides for the prosecution to prove its case beyond reasonable doubt at the conclusion of the trial in which the court shall consider all the evidence adduced before it.

Perhaps one should give a thought to the comment made by MPH Rubin J in his article, ‘Standard of Proof Relating to Sufficiency of Evidence at Criminal Trial: Mental Gymnastics Since Haw Tua Tau[lx] in which it was elucidated that,

“The criticism levelled against Haw Tua Tau has the tendency to mix prima facie evidence with ‘beyond a reasonable doubt’ evidence. It is difficult to conceptualise how an accused could possibly rebut a case which is established beyond reasonable doubt. Can something which is established beyond reasonable doubt be negatived by some modicum of doubts? If section 189 (Singapore CPC) were to be given a construction under which it behoves the trial Court to make up its mind at the halfway stage, would it not conversely impose an almost impossible burden on the accused. A maximum evaluation test would clearly have undesired results.” (emphasis added).

THE ISLAMIC PERSPECTIVE:

This article would not be fully comprehensive without incorporating some discussion from the Islamic perspective. In Islamic criminal law, particularly those in relation to hudud offences, the claimant must prove his or her case beyond any shubhah or shadows of doubt (yaqin). This is predominantly due to its nature of offence and the severe punishment prescribed where no clemency is allowed as it involves the right of the Almighty, Allah S.W.T. In this context, the burden of proof lies on the party claiming or accusing and this burden can only be discharged with the highest standard of proof where shak (state of doubt based on probabilities bordering between ‘proved’ and ‘not proved’) and wham (state of doubt or fancy which leans closer to error) are totally rejected. This is based on the well-known hadith of the Prophet S.A.W. which states to the effect, ‘‘Set aside hudud whenever doubt arises’’.[lxi] In other words, the claimant must prove the case with the utmost certainty as certainty cannot be eliminated except by another certainty.[lxii]

A BALANCING ACT ON A TIGHT ROPE:

One may agree that our whole criminal jurisprudence including the Islamic law is based on the presumption of innocence. In Khoon Chye Hin v Public Prosecutor[lxiii], Thompson CJ quoted Holroyd J’s statement in Sarah v Hobson[lxiv] where it is a maxim in the English law that, ‘it is better that ten guilty men should escape than that one innocent man should suffer.’ Hence, judges are ever mindful that the objective of a criminal justice system is that the guilty should be punished and that utmost precaution is taken to ensure that no innocent person is ever convicted[lxv].

Correspondingly, there is the other saying by Thomas Fuller: ‘The Judge is condemned when the criminal is absolved.’ The acquittal of a guilty person would therefore equally be a miscarriage of justice just as much as the conviction of an innocent. In this regard, I humbly share the same contention of MPH Rubin J where so long as Judges and the criminal bar bear in mind the pronouncements of Viscount Simon in Stirland v. DPP[lxvi] that ‘a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent’, the general public and for that matter, criminal practitioners need not be fearful of the continued application of Haw Tua Tau[lxvii]. It has worked well since 1981 and would no doubt work well with some further refinement, given the thoroughness of those who plead the cause of the accused at the bar.[lxviii]

EVIDENCES

EVIDENCES

CONCLUSION:

The ‘pendulum’ with respect to the meaning of prima facie has unfortunately swung back to the pre-Haw Tua Tau cases despite the 1997 amendments. It appears that the vigorous judicial creativity in its interpretation of the amended sections had resulted in the exodus of the plain intention of the legislature. The ‘beyond reasonable doubt’ standard of proof is a highly demanding evaluation to be set at the end of the prosecution’s case which could result in an acquittal of a wrongdoer or offender. Thus, it may be said that the public interest would not be served with such high standard of proof.

Furthermore, the adoption of the ‘beyond reasonable doubt’ standard of proof at the end of the prosecution’s case is not only a breach of an explicit provision of the CPC, but also a breach involving a principle of general importance in the administration of justice which cannot be cured by section 422 CPC.[lxix]

In a nutshell, while the maximum evaluation test of the prosecution’s evidence favours the accused, it may not be what the Parliament had intended. Indeed, another final apex court’s decision in this respect is desperately required to resolve these labyrinthine complexities of law. It is, therefore, the public’s fervent hope that the constantly swinging pendulum would come to a standstill, to wit, the standard of proof is finally determined. Only then would section 173 (f) and section 180 CPC truly reflects the principle enshrined in Haw Tua Tau[lxx] and the intention of the legislature.


* The writer wishes to thank his beloved father who has relentlessly given invaluable advice and support, Prof. Dr. Abdul Aziz Bari and Mr. Raja Badrol Hisham Bin Raja Mohd Ali who had critically commented on this article.

** Bachelor of Laws (First Class Honours) International Islamic University Malaysia.

[i] [2006] 1 CLJ 457.

[ii] [1981] 2 MLJ 49.

[iii]Oxford University Press, 5th Edition, 2003.

[iv] Miller v Minister of Pensions [1947] 2 All ER 372; Mancini v Public Prosecutions Director [1942] 1 AC 1; Woolmington v Director of Public Prosecutions [1935] AC 462; Public Prosecutor v Yuvaraj [1969] 2 MLJ 89.

[v] [1940] MLJ 47.

[vi] 5th Edition.

[vii] It is also worth to note that this definition was also adopted by the Federal Court in Balachandran v PP [2005] 2 MLJ 301.

[viii] 1 M.C. 160.

[ix] Mimi Kamariah Majid, Criminal Procedure in Malaysia, University of Malaya Press, 3rd Edition, p. 276.

[x] Supra n.5.

[xi] See also Yap Fook Yew & Anor [1949] supp 3 MLJ; Soo Sing & Ors v PP [1951] MLJ 143.

[xii] [1970] 2 MLJ 283, see also Wong Ah Mee v PP [1970] 1 MLJ 98.

[xiii] [1971] 2 MLJ 16.

[xiv] Supra n. 7. See also Tengku Abdul Aziz v PP [1951] MLJ 185; Tan Ah Ting v PP [1974] 2 MLJ 37; Zahari bin Yeop Baai & Anor v PP [1980] 1 MLJ 160; Ha Jong Ru v PP [1980] 2 MLJ 256.

[xv] Supra n. 2.

[xvi] Francis Ng Aik Guan, Criminal Procedure, MLJ, 2000. pp. 243.

[xvii] Evidence which is inherently incredible is defined as evidence not fit for believing, per Peh Swee Chin J in PP v Tan Seow Chuan [1985] 1 MLJ 318.

[xviii] Supra n. 2.

[xix] Choo Han Teck, Haw Tua Tau-The Aftermath (Have We No Case To Answer), [1987] 29 MLR 29.

[xx] A Ragunathan v PP [1982] 1 MLJ 139 and Pavone v PP [1984] 1 MLJ 77.

[xxi] [1987] 1 CLJ 250.

[xxii] Supra n. 2.

[xxiii] Supra n. 5.

[xxiv] [1987] 2 MLJ lxx.

[xxv] Supra n. 21.

[xxvi] Ibid.

[xxvii] [1993] 3 MLJ 217.

[xxviii] [1994] 1 MLJ 265.

[xxix] Supra n. 2.

[xxx] Mariette Peters-Goh, Prima facie: Standard of Proof or Designative Label?, [2002] 1 CLJ i.

[xxxi] [1995] 4 CLJ 456.

[xxxii] Supra n. 28.

[xxxiii] [1997] 1 MLJ 1.

[xxxiv] Ibid.

[xxxv] The burden of proof on the guilt of the accused is on the prosecution throughout the trial and it never shifts. See Woolmington v The Director of Public Prosecutor [1935] A.C. 462.

[xxxvi] Supra n. 33.

[xxxvii] Supra n. 2.

[xxxviii] The Star, Dec. 19, 1996, at p. 10.

[xxxix] Section 173 (f) and section 180 (1) provide that, ‘When the case for the prosecution is concluded, the court shall consider whether the prosecution has made out a prima facie case against the accused.’

[xl] [1998] 1 CLJ i.

[xli] [2004] 6 MLJ 303 at p. 361.

[xlii] See Jones v Carter 1956 Crim LR 275 at p 276; PP v Chia Leong Foo [2000] 6 MLJ 705 at p 733 and Pang Chee Meng v Public Prosecutor [1992] 1 MLJ 137 at p 141.

[xliii] [1999] 2 CLJ 215.

[xliv] See also PP v Magendran a/l Mohan [2005] 6 MLJ 6.

[xlv] Ibid.

[xlvi] Supra n. 1.

[xlvii] [2003] 1 CLJ 734.

[xlviii] Supra n. 43.

[li] [1998] 4 CLJ 209.

[lii] [2000] 1 CLJ 446.

[liii] See Tan Boon Kean v PP [1995] 4 CLJ 456.

[liv] Supra n. 33.

[lv] [1997] 1 MLJ 562.

[lvi] [2005] 2 MLJ 301.

[lvii] [2006] 4 CLJ 314.

[lviii] Section 180 CPC provides to the same effect as Section 173 (f) CPC. In fact, Wahab Patail J in PP v Mohan Singh [1999] 4 CLJ 420 said that, ‘‘the term prima facie is not descriptive of any standard of proof and its effect is a designative label indicating the case proved at the close of the case for the prosecution.’’

[lix] Section 173 (m)(i) and Section 182A (i) provide that, ‘At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution had proved its case beyond reasonable doubt’.

[lx] [1996] 2 CLJ lxiv.

[lxi] Al-Shaukani, Muhammad bin ‘Ali bin Muhammad, Nail Al-Autaar, Mustaffa Al-Babi Al-Halabi, Egypt, 1961, 3rd Edition, Vol. 7, at p.110.

[lxii] Mahmud Saedon A. Othman, An Introduction to Islamic Law of Evidence, The Open Press Kuala Lumpur, 2003.

[lxiii] [1961] 27 MLJ 105 at p. 108.

[lxiv] 1 Lewin 261.

[lxv] Supra n. 60.

[lxvi] [1944] AC 315 at p. 324.

[lxvii] Supra n. 2.

[lxviii] Supra n. 60.

[lxix] Supra n. 9.

[lxx] Supra n. 2.

Copyright reserved by Ng Boon Ka. This article was also published in the IIUM Law Journal, Volume 14 Number 1, 2006.



THE COMPARISON OF TRIAL WITH JURY AND TRIAL WITHOUT JURY IN MALAYSIAN LEGAL SYSTEM (FINAL PART)

1 Feb

JURY TRIAL

JURY TRIAL

Conclusions

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]

JURY TRIAL

JURY TRIAL

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.

[ii] Poll Says Jury Service Leads to Fairness, The National Law Journal (February 28, 2002)

[iii] American Judicature Society. Behind Closed Doors: A Guide for Jury Deliberations (1999).

[iv] [1965] 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.

THE COMPARISON OF TRIAL WITH JURY AND TRIAL WITHOUT JURY IN MALAYSIAN LEGAL SYSTEM (PART IV)

1 Feb

 

“By some mysterious means juries do reach the right decision.” [i]

Every system has its strong and weak points, but we would favour the jury system in our country. There are various justifications for jury trial. Lord Devlin[ii] regarded the “best blend of logic and common sense” as being in the verdict of 12 jurors. Many judges will accept that the pooled experience of 12 men and women is a better instrument for arriving at a just verdict than the experience of one person.


The jury is surely the best instrument for deciding on a witness’s credibility or reliability, and so for determining the primary facts of a case. It is easy for a single mind (or even the mind of two or three) to be fallible about whether a person is telling the truth. This decision often has to be judged from the witness’s demeanour and his way of giving evidence.[iii] As Lord Devlin said: “The impression that a witness makes depends upon reception as well as transmission, and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of 12 people is more reliable. A judge may fail to make enough allowance for the behaviour of the stupid because by his training he regards so much as simple that for the ordinary man may be difficult. The jury hear the witness as one who is as ignorant as they are of lawyers’ ways of thought”.[iv]


Perhaps too much had been deliberated on the supposed frailties and defects of the jury system that everyone seems to have forgotten that a judge is also a human being like everyone else. If some people have qualms and reservations about taking a person’s life, that could also happen to a judge. This is because unfortunately what could happen next is that if, as has been suggested, a jury can be swayed to go the wrong way by an eloquent speech, it could also happen that a judge who is disturbed by his moral convictions or is affected by any other personal or extraneous reason, may be inclined to simply adopt counsel’s line of argument, for what it is worth. After all, no one can read what is in his mind. He may, in doing so, have committed a miscarriage of justice, but is he entirely to be blamed for it?


It requires, to be asked, therefore, which is a better system after all: One where, if a man makes a mistake or comes to a wrong conclusion, the others with him may not necessarily adopt it and may even query it; or a system where if a man alone makes a mistake or a wrong conclusion, that is the end of the matter? The Court of Appeal may correctly not even disturb it since it relates to a finding of fact.


Hence, it is a fallacy to conclude that because in some other countries, the jury system does not seem to work, it would necessarily mean that the system as such is bad and is not acceptable here. It must still be a fair and just system. Otherwise, how do we explain that for hundreds of years since its inception the jury trial has still not been abolished in most modern democracies like Britain, America, Australia, Canada and New Zealand? It is true seemingly appalling abuses have been committed by the juries in America, but we do not hear of any such abuses and scandals elsewhere in those other countries mentioned. This can only mean that the system can work if the authorities concerned want to make it work.


What needs to be done is to ensure that the jury members are properly educated because they will understand what the judge tells them. More importantly, they will understand what integrity and responsibility mean and what it means to be fair and just and to act without fear or favour. So the question of being bias (racial or otherwise) or prejudicial for whatever reason, good or bad or being dominated by a strong character, does not come into play as far as they are concerned when making decisions.


There is also the contention that it is unsafe to entrust our fate to a few untrained people. But what is the training that we are talking about, minus the fact that juries are not expected to be trained in law? What law are they expected to know to decide on the facts? In fact, people generally may know the facts surrounding a case and the conclusion to be drawn from them better than the judge himself, except of course, the juries have to be guided by the judge as to what facts can be admitted and which to be excluded and the weight to be given to them.


Jury trials are also said to be the cause of backlog. But has a proper study been made of the statistics to support that assertion? If we analyse it, we would find the number of days taken to hear the witnesses is the same, whether there is a jury trial or not. That goes also for the submission by counsel. We are left only with the decision-making process itself. As far as one can remember, there has never been a case where a jury in this country has taken more than a day to decide. It has always been the case that they will do it on the same day the judge gives his directions to them. But a lone judge may take time to do so simply because he has the added task of making the decision on the facts himself.


Finding jurors who are knowledgeable and effective may pose an initial problem, but if the people in charge asked for volunteers and vetted applicants carefully, they will have a bank of jurors to draw from to sit on trials. There is a wealth of talent out there to choose from, especially retirees whose mental acuity may surpass those of a younger age and who would be able to apply the standard of “the reasonable man” more effectively.


Jury trial is of course inconvenient and expensive. But I feel passionately that jury trial, however inconvenient and however expensive, should be retained. It is the very touchstone of our liberties.

FUROIUS JURY

FUROIUS JURY

 

Proposals

“The trial by jury,” then, is a “trial by the country” —that is by the people as distinguished from a trial by the government. [v]

We opine that there are few approaches that can be considered by the Government if the jury trial were to be reintroduced in the judiciary system of Malaysia. These approaches are deemed to be a reconciliation that strikes a balance stance between the advantages and disadvantages of jury trial.

Firstly, the roles of juries and judges in a trial can be restructured in order to uphold fairness in a case. The role of the jury can be restricted so to be limited to question of facts only. This is different form the conventional structure of the jury system[vi] since we suggest that the jurors should not have the discretion to determine the verdict of guilt of an accused. The jurors should merely examine the veracity and credibility of a witness and evidences. They should not encroach the prerogatives of verdict which remains with the role of a judge.

Juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them.[vii]

In Balachandran v. Public Prosecutor, the court said that “in order to make a finding either way the Court must, at the close of the case for the prosecution, undertake a positive evaluation of the credibility and reliability of all the evidence adduced so as to determine whether the elements of the offence have been established.As the trial is without a jury it is only with such a positive evaluation can the Court make a determination for the purpose of section 180(2) and (3).Of course in a jury trial where the evaluation is hypothetical the question to be asked would be whether on the evidence as it stands the accused could (and not must) lawfully be convicted.That is so because a determination on facts is a matter for ultimate decision by the jury at the end of the trial.”

However, the modern approach is contrary to the above decisions since the conviction of the accused is a matter for ultimate decision by the judge at the end of the trial. The rationale behind this approach is because the jurors have no knowledge of the applicable laws due to the fact that they are not well trained or qualified as lawyers. Even if they have the knowledge of law after listening to the explanation of the law by the judge (direction of the judge as to law in the current common law and civil jury system), but they may not be wise enough in applying the applicable laws to the relevant facts in hands. This is definitely a daunting task for jury deliberations since the professionals in legal fraternity encounter the same obstacles as well. Hence, the judge’s role should be widened in a jury trial to the extent of applying the law to the jury’s determined facts and delivering his judgments thereafter. The sanctity of the judge’s roles may also be preserved at the same time. It’s like killing two birds with one jury trial.

Secondly, the purpose of awarding Justice of Peace (JP) to the public may be altered to the effect that they may be called for jury’s duties when needed. This in turn safeguards the fairness of the trial since those who are awarded JP are deemed to be wise people who have contributed to the society. Besides that, the cost of summoning jurors may be reduced tremendously. This is because the jurors are put on guard of their jurors’ duties at their own State.

Thirdly, a jury committee may be established by the State Government at each State. The function of this committee is to regulate the summons of jurors, conducts of jury trial, expenses of jury trial and protection of the safety of the jurors. Experience shows that jury tampering is quite a serious problem, though fortunately not widespread. Jurors are subjected to bribery, harassment, intimidation, threats to themselves and their families, damage to property, and suffer stress, anxiety, fear, sleeplessness, and disruption of their lives. The police have to provide protection. If the matter comes to the attention of the judge he discharges the jury and orders a retrial, all involving a waste of time and money and imposing a burden on the witnesses.[viii] By setting up this committee, the jurors or public would have more confidence in the jury system of Malaysia and they may attend to the jurors’ duties more effectively.

Last but not least, we have to take into consideration of the rights of the accused. In the name of natural justice, the accused shall also be given the right to object the selection the jurors as opposed to the existing right of choosing the jurors in certain trials. This is because the accused ahs the inherent right of defending himself and raising preliminary objections. Similarly, the accused should have the right to object the appointment of certain jurors provided sufficient grounds are given to support the objection.

Unless such be the rights and duties of jurors, it is plain that, instead of juries being a “palladium of liberty” — a barrier against the tyranny and oppression of the government — they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.[ix] Jury trial depends on the decency of jurors acting collectively. If that is no longer the case, then jury trial is finished. As Lord Bingham said in R v H; R v C[x]: “The achievement of fairness in a trial on indictment rests above all on the correct and conscientious performance of their roles by judge, prosecuting counsel, defending counsel and jury.[xi]


[i] The jury’s unlikely champion;Author and former Sunday Telegraph editor, Trevor Grove, used the time he spent doing jury service putting the system itself on trial, writes Philip Hoult. The Lawyer September 15, 1998

[ii] Hamlyn Lectures on the Jury System (Page 72).

[iii] Johnson, Kevin and Tom Squitieri.“Grand Jurors Clearly Have Own Minds,” USA Today, June 30, 1998.

[iv] Hamlyn Lectures on the Jury System (Page 140).

[v] Elshtain, Jean Bethke. Democracy’s Precarious Present, Democracy on Trial (1995), pp. 1-36.

[vi] For more than six hundred years — that is, since Magna Carta, in 1215 — there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.

[vii] Kadner, Phil. Some Cold Facts About Hot Coffee and Jury Awards. Daily Southtown, March 7, 1996.

[viii] Roskill, Lord, Fraud Trials Committee Report (1986).

[ix] Edmond, Gary and David Mercer. “The Politics of Jury Competence,” from Technology and Public Participation (University of Wollongong, 1998).

[x] [2004] UKHL 3 (para 13).

[xi] “The View from the Jury Box,” National Law Journal, February 22, 1993, S1-S16.

THE COMPARISON OF TRIAL WITH JURY AND TRIAL WITHOUT JURY IN MALAYSIAN LEGAL SYSTEM (PART III)

1 Feb

JURY TRIAL

JURY TRIAL

Arguments for Trial with Jury

Alexis de Tocqueville wrote: “The jury system appears to me to be as direct and extreme a consequence of the sovereignty of the people as universal suffrage.[i]


Many eminent men have agreed with him. Lord Devlin called the jurythe lamp that shows that freedom lives”. He contended that “each jury is a little Parliament for no tyrant could afford to have a subject’s freedom in the hands of twelve of his countrymen”.[ii]

Prior to the arguments for the trial with jury, lights may be shed upon the purposes of having jury trial. There are basically four main purposes:-

1. It does justice and decides whether the prosecution has proved its case against the defendant whom it is considering. But the jury’s purpose does not stop there.

2. It helps to ensure the independence and quality of the judges. That great eighteenth century jurist Sir William Blackstone regarded the jury as a safeguard against the violence and partiality of judges appointed by the Crown (Commentaries on the Laws of England 4:349). We are a long way from those corrupt days, but who knows what the future may bring, and it is helpful to have a check on the possibility of biased judges being appointed by some future administration, perhaps long in the future.

3. It gives protection against laws which the ordinary man or woman may regard as oppressive. It was the refusal of juries to convict sheep-stealers of grand larceny (they found that the defendant had stolen the sheep but that the value of the sheep was less than ₤5, and hence it was petty larceny) that led to the abolition of hanging for theft. There are indeed modern examples of acquittals in protest at what are perceived to be unfair laws.

4. The jury system helps to ensure the maintenance of proper behaviour by investigating officers. The great majority of police and customs officers behave impeccably. There are, however, a small number who behave with arrogance and unfairness, or who are just bullies (whether physical or verbal) to the defendants in their charge. Were a judge sitting alone or with assessors, whatever his abhorrence of such conduct, he would have to convict the defendant assuming the evidence proved guilt, unless it were possible to exclude the officer’s evidence under cross examination. Hence, the principle that those investigating criminal offences should behave with absolute propriety to those in their charge is surely fundamental in a civilised society, and this principle transcends the merits of an individual case.

After perusing the purposes of the jury trial, one may well derive form them the significances of jury trial. First and foremost, jury trial ensures simplification of the issues and the language. The judge will find taking the decision on innocence or guilt very stressful, being the sole decision-maker, he is not accustomed to taking the decision in serious criminal cases-that has never been his judicial role. Nor is he provided with assessors to assist him. His experience of ‘life’ will necessarily be limited. Whatever the decision, the judge will be vulnerable to accusations of bias and even vilification; he will not enjoy the anonymity of the jury. Trial by lawyers may be conducted in legal jargon incomprehensible to the public and may turn on legal technicalities. Public confidence could be undermined. Jury trial will be gradually and stealthily undermined.

The Solicitor-General said reintroducing the jury system would prevent suspicions of corruption in the judiciary. 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.[iii]


By doing this, it takes away the burden of the judge. It gives the true meaning to justice. 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.[iv]


Things are clearly different now compared to when jury trials were abolished in 1995. There’s an improvement in literacy rates, the man in the street is more aware of his rights. In fact, people are more litigation-conscious. Whenever there is something wrong, the public become increasingly vocal. They write letters to newspapers, they make statements, there are more non-governmental organisations. There are Domestic Violence Act and a Child Abuse Act in Malaysia. These new laws show how aware people are now of various issues.


If we look at the track record, there were cases where the jury was reluctant to convict, but if we look at individual cases, there was not a single one where the jury acquitted a guilty man where the facts were overwhelming. Juries will not return the verdict of murder unless they are absolutely sure because they live with their conscience. For the judge, it’s a more mechanical process.


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


It’s a fallacy that jurors are so easily taken up by the Bollywood or Hollywood style in court. Secondly, there are no dramatics by defence counsel because the judge is in control of the court. If the lawyer does all sorts of things, the judge will tell him to stop. There are no dramatics like we see in the movies or on television, plain and simple.

When you talk about a jury being influenced, no doubt. If they see a defence counsel who is experienced, they may given him that little bit of extra respect, but we see, so do judges. They, too, have respect for good lawyers, so there’s no issue that jurors are more affected. As Jagjit Singh[v] said, “I have absolute faith; not a single member of the jury in my past cases 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.”[vi]


It is not going to be difficult in choosing seven people. We have the electoral roll, all the names are there, there’s no problem. They can be contacted though addresses on the electoral roll. Give or take 10 per cent change of addresses. But apart from that, there would be no problems. When they receive the letter, they will have to do jury duty. There’s no question of them being interested or not in being jurors. If they’re called, they have to do their duty.


The selection process would not result in delay and backlog. This is because after the names are short-listed from the electoral roll, the selection process where we see the prospective jurors for the first time only takes half the morning. To save time, this can be done at the pre-trial stage in front of the Registrar. That way, the actual length of the time of the trial in front of the judge will not be added to.

Arguments against jury retention include previous allegations of jury misbehaviour, the possibility of intimidation, personation and a general lack of comprehension. However attractive jury abolition may be to our lords and masters, both for political and financial reasons, the way forward is not the amputation of the patient’s head to save the rest of the body.

There is no reason on earth why the present system cannot be improved without radical surgery, particularly a system which has served the UK so well, by and large, over many hundreds of years. The answer lies in improving the jury. The protection of jurors and their education are simple practical steps. Whilst many would think that the ‘random’ selection of jurors is incompatible with vetting, it may nevertheless be desirable, in complex cases, to empanel a jury which the court can be assured has a comprehension of the proceedings they are to try.[vii]

Manickavasagar[viii] said that “seven members of the jury could always ‘see and sense’ better compared with a single judge hearing the case. If only the judge is hearing the case, he may miss out certain things like the demeanour of the accused or the witnesses.”


Besides that, it’s better to allow the peers of the accused to judge him as they may see things differently and have plenty of time to delve into the case compared to the judge. Jurors were also allowed to ask questions whenever they had doubts. The fact that no juror was ever charged with any wrongdoing or corruption spoke volumes about the advantages of the system. S. Gurdial Singh also said that “Why I feel the system is the best? Well, anyone would tell you that seven heads are better than one. In fact, eight heads are looking at the same matter because the judge guides us on matters pertaining to law.”[ix]


Datuk M. Ramalingam also said that, “I still remember the then High Court judge, Justice Ajaib Singh, telling the accused that he may have escaped the human law as there was no concrete evidence that could incriminate him. However, he would not escape the greater judge in his afterlife.”[x]


That is the uniqueness of the jury system. A system that is corruption-free because we cannot have all seven with crooked interests. One man cannot be made to judge the life of another. Also, the fact remains that intelligence could always be misapplied. Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim recently said even ordinary trials in the High Court should be heard before three judges rather than one.[xi]


On the other hand, a jury trial is not costly. When compared to a man’s life, it’s nothing. Previously, a juror was paid about RM70 a day. Since it took about two weeks to hear a case, it was nothing compared to a life.


The act of electing jury trial also brings in safeguards, including further independent review of the strength of the case and greater disclosure of the prosecution case.[xii] The jury system enables an accused to be judged by his peers, that is, the public, who will apply the standard of ‘the reasonable man’ The public will view the facts of the case without being burdened by legal technicalities, unlike a judge. Jurors are not illiterate and can be relied on to analyse facts intelligently.


Tan Sri Abdul Gani Patail said public participation in the jury system could ensure a better application of the ‘reasonable man’ standard on the question of facts during a trial. “Before people owned televisions or radios, they used to attend court hearings because they were interested in the law. Bringing back jury trials will allow them to participate. To me a law is a good law when the public can understand and be a part of it,” he said.


To sum up, the jury system is an established and, by and large, satisfactory institution for the trial of cases which affect reputation and liberty. In a democracy the judgment of the public is paramount. Peer justice is an essential aspect of the jury system. In serious cases, it is preferable to the continental tradition of a professional state-appointed magistracy.

There is an important constitutional point regarding juries. Were a dictator to seize power, apart from cowing from Parliament he would abolish or restrict trial by jury. This is because no dictator could afford to leave a person’s freedom in the hands of his countrymen. In Williams v Florida (1970), the Court stated that the chief function of jury is to safeguard the citizen against arbitrary law enforcement. Reinforcing the purpose is the jury’s role of preventing oppression by the government and providing the accused an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased or eccentric judge.[xiii]


[i] De Tocqueville, Alexis. “What Tempers the Tyranny of the Majority in the United States,Democracy in America (1969), Part II, Chapter 8, pp. 270-276.

[ii] Lord Devlin. The Hamlyn Lectures 1956.

[iii] Jury trials may be best way to keep graft at bay. New Straits Times (Malaysia) June 1, 2006 Thursday

[iv] Edmond, Gary and David Mercer, “The Politics of Jury Competence,” from Technology and Public Participation (University of Wollongong, 1998).

[v] a Malaysian practicing lawyer for 38 years.

[vi] Interview of Jagjit Singh, published in To be, or not to be judged by one’s peers, News Straits Times (23 Oct, 2006)

[vii] Stephen Gilchrist. (2000). The need for a better jury — the jury system has been part of the British legal system for hundreds of years. UK Law Journal.

[viii] Former court interpreter S. Manickavasagar, 84,

[ix] S. Gurdial Singh 81, retired teacher who had served as a member of the jury twice in the mid 80s.

[x] Datuk M. Ramalingam, 66, secretary-general of National Council of Justices of Peace and former Commonwealth Magistrates and Judges Association regional vice-president

[xi] A system free from corruption. New Straits Times (Malaysia) July 9, 2006 Sunday

[xii] Vicki Chapman. Jury trial safeguards must be kept. The Lawyer June 7, 1999

[xiii] Duncan v Lousina (1968).

THE COMPARISON OF TRIAL WITH JURY AND TRIAL WITHOUT JURY IN MALAYSIAN LEGAL SYSTEM (PART II)

1 Feb
JURY TRIAL

JURY TRIAL

Arguments for Trial without Jury

“Trials are too important to be left up to juries,” was the cynical mantra of trial consultant, Rankin Fitch (played by Gene Hackman) in the Hollywood hit film ‘Runaway Jury’. This sparks off the questions as to what actually happens in the jury room and how can citizens prepare themselves to deliberate fairly and justly.

Indeed the jury system has acquired powerful critics in the British Parliament, in the media and amongst lawyers, academics and senior police officers. Professor Glanville Williams, for instance, has voiced the concern of many by focusing on the very foundations of the system: the caliber of individual jurors: “persons whose ordinary occupations are of a humble character rarely qualify to be regarded as first rate intellectual machines. They are not accustomed to giving sustained attention to the spoken word and many will have a narrow vocabulary and range of ideas.”[i]

Other notable critics include Sir Robert Mark who once instituted a study with view to demonstrating that juries acquitted far too readily[ii] and frequently spoke of “blatantly perverse acquittals.” [iii]

There is much to be said for this argument; one of the attractive features of jury trial is that it resolves disputes within society in a final and decisive manner. However, this notion is based on a questionable premise; that juries generally ‘get it right’. This can no longer be assumed in indeed it ever was. If it seems that something seriously untoward has taken place in the jury room then this clearly outweighs the non disclosure principle.[iv] Case law provides us with many examples; perhaps the best is that of R v Thomas[v] where the defendant was convicted of sheep stealing. It later transpired that two of the jury spoke no English and had of course been unable to follow the evidence. The defendant appealed unsuccessfully. The Court of Appeal refused to look at the evidence in the interests of finality.

The most common 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. Lawyers can play to the gallery, indulge in histrionics and whip up the emotions of jurors to get a desired result. For example, in a child rape case, the jury may be driven to convict the accused based on personal feelings rather than on conviction beyond reasonable doubt. The accused must “receive a trial by an impartial jury free from outside influences”. Trial by the media[vi] and ordinary gossip may take precedence and this would adversely affect the accused in that the jurors may be influenced by them.[vii]


Secondly, an impartial jury must be handpicked from a representative cross-section of the community, with no participants excluded on the basis of race, sex, religion or other impermissible factors.[viii] This would be a daunting task for a cosmopolitan country like ours. Naturally both the prosecutor and the defendant’s lawyers would study profiles of potential jurors to admit only jurors who would support their case.[ix] This battle would, of course, threaten the principle of “equal justice under the law”. In the US and Britain, juries have been known to hand out mind-boggling payouts in defamation and related cases. This is unrealistic and unworthy of the system.[x]


Thirdly, 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 to 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.[xi] 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.[xii]


In a multiethnic country like ours, the jury system may not work as it should. In our country, there is a potential for jurors to succumb to racial prejudice. The possibility of bias is an ever-present threat to confidence in the jury system. There is always a potential for the minds of individual jurors and indeed whole juries to be clouded by bias.[xiii] A biased jury would undermine an accused’s common law right to a fair trial, and also violate their right to a fair trial under Art 6 of the European Convention on Human Rights. Just picture this scenario. An Indian kills a Chinese man and three of the seven jurors are Indians. What if he is acquitted? Will there be complaints of racial bias in the decision-making?[xiv]


In the US, for instance, in the notorious Rodney King (19920 case, white police officers were acquitted of violently beating up a black man by a jury of mostly whites, without any black jurors, in spite of an incriminating video tape of the assault. This resulted in riots. In the Michael Jackson case, some of the jurors admitted that they were convinced of his guilt but sentiment for his image swayed them to find him “innocent”.[xv]


Fourthly, jurors can also be tampered with by outside influences. Jurors can be threatened by mobs or bribed by agents of the accused. Twelve jurors locked away in isolation does not mean 12 independent inputs to arrive at a common decision. It just takes one articulate juror with a strong personality to lead the rest to say “yes”. The herd instinct would come into play and the more naive jurors could easily be led by the nose by the more aggressive. Justice would then take a back seat.[xvi]


Fifthly, data indicates that in certain cases, jurors tend to be prone to acquittals, while some studies have shown that male jurors are reluctant to convict for rape. It has been found that women are very reluctant to convict, except in sex offence cases. There they tend to sympathise with the victim. So the acquittal rate tends to be high in particular types of cases. There are hundreds of thousands of cases waiting for trial.[xvii] If you introduce the jury system, you’re going to increase the backlog of cases. As it is in Malaysia, we have a backlog of cases in dire need of quick clearance. Jury trials will certainly cause more delays and uncertainties.


Sixthly, it seems bizarre and risky for the accused to put his fate in the hands of a few untrained laymen who can also be emotional. It is better that 10 guilty men be set free than one innocent man be hanged. In the words of the former French Minister of Justice Robert Badinter, jury trials are like riding a ship into a storm, because they are much less predictable than bench trials”. Some acknowledge that jury trials would “bring the people into the system’, yet they are skeptical of juries being able to dispense justice. This is because the problems override its benefits. There is a worry that jurors don’t act as agents of justice, but as representatives of their communities.

Seventhly, memory is not only notoriously unreliable but it is rarely objective, and yet the system is wholly dependent upon the accuracy of the jury’s memory for when they are considering their verdict none of the evidence given under oath from the witness-box is available for reference. They do not have a record of the judge’s directions on the law, nor any of the summarisations.


Juries may and do take notes which they take into the jury-room. But as any student knows, whenever you are busy writing notes of any length you miss the next bit of the lecture, and the same is true in court. Also the really significant points may not be apparent at the time due to the sequence in which the evidence is presented, so a really good memory is needed to recall them accurately once their importance becomes clear.


As can be seen in local context, jury trials in Malaysia were only used in murder and kidnapping cases. That itself is an objection – why should only certain cases be subject to jury trials rather than others which are much more justifiably subject to public opinion, like defamation for example. Why only kidnapping and murder, why not rape? Why not commercial fraud? Defamation trials should go before the jury where the input of the public is more important because the issue is – have you by your words, brought me down in the public’s eyes? I think the public should answer that.

The Attorney-General of Malaysia said that Malaysians are more well-informed and well-read than they were in 1995 when jury trials were abolished, so they should be able to analyse facts much better now. It is true that the levels of literacy have improved. However, this issue is not only of knowledge but of wisdom. Facts do not contribute to wisdom, the ability to be impartial and to ignore stereotypes.

It has been argued that it could not be difficult in selecting jurors since there are so many graduates. Nonetheless, being a degree or diploma holder doesn’t make you impartial or objective. Dag Hammarskjold, the former secretary-general of the United Nations said: “To be truly objective, you must be subjective from the other person’s point of view.” There is something to be said for the standard of the ordinary reasonable man, but it is doubtful whether any selection of jurors would truly represent the public.

Penny Darbyshire[xviii] mentioned that “Of all the people I have asked about their jury service over the years (probably 40 to 50), only about five have enjoyed the experience. Some were shocked, many were uneasy. Most were bored. No one suggested it endowed them with ‘a sense of airiness and propriety of the judicial process in this country’ and I was no exception.”

It was reported in local newspaper that Nazri[xix] said that there may be those who were reluctant to carry out their jury duty. Ordinary citizens, he said, were also weaker than judges. “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,” he said. At that point, Karpal Singh[xx] interjected: “You cannot win with a four-three majority. You need a minimum of five-two. Don’t you have any experience handling a jury trial?[xxi]


If it is just ‘common sense’ that is needed to come to a just conclusion in a trial, why do we bother to spend a fortune to go to law school? The conduct of a case is based on many factors, including the evidence, which is sometimes circumstantial. It is risky to entrust our fate to a few untrained people. It would be difficult for them to differentiate between “beyond reasonable doubt” and “the balance of probabilities” – the divide between criminal and civil cases.


Some argue that “seven heads are better than one”, but “too many cooks can spoil the broth” as well. It is a fallacy to assume that just because there are seven jurors, there will be seven different inputs into the deliberations. All it takes is just one juror with a dominating personality to lead the others. Jurors are human, albeit educated, and can be swayed by emotion, prejudice and racial considerations. In an emotionally charged case, like child rape, the jury may be swayed to convict based on personal feelings rather than on a case beyond reasonable doubt.


No sane person will relish the idea of condemning another to death, never mind if that person is a stranger. But under the jury system, which was abolished in 1995, one had no choice but to obey a court order and appear in court to judge one’s peer. How did jurors feel when they sat to decide somebody’s fate? If jury trials were implemented, lawyers will bypass law and go for acting lessons in histrionics to play on the sentiments of the jurors. Is all this necessary?

JURY SELECTION

JURY SELECTION


[i] Professor Williams. The Proof of Guilt, p 271.

[ii] New Law Journal June 9 1966.

[iii] Robert Mark. In the Office of Constable, p 285.s

[iv] Baldwin J & McConville ME (1979) Jury Trial. Oxford: Oxford University Press.

[v] (1933) 2 QB.

[vi]Is a Fair Trial Possible in the Age of Mass Media?” Bill of Rights in Action (Winter 1994, Vol. 11, No. 1).

[vii] Kennedy, Randall. “Racial Conduct by Jurors and Judges: The Problem of the Tainted Conviction” pp. 277-282, and “Black Power in the Jury Box?”, pp. 295-310, Race, Crime and the Law (1997).

[viii] Kennedy, Randall. “Race and the Composition of Juries,” Race, Crime and the Law (1997: Vintage), Chapters 5-6, pp. 168-230.

[ix] Kennedy, Randall.“Race and the Composition of Juries: Setting the Ground Rules,” Race, Crime and the Law (1997: Vintage), Chapter 5, especially pp. 182-192.

[x] Brenner, Susan.“Is the Grand Jury Worth Keeping?”Judicature, Volume 81, Number 5 (March-April 1998).

[xi] Scheffey, Thomas. “Connecticut Outlaws Religion-Based Juror Challenges,” Connecticut Law Tribune, April 5, 1999.

[xii] Interview of Universiti Teknologi Mara constitutional law expert Professor Shad Saleem Faruqi published in To be, or not to be judged by one’s peers, News Straits Times (23 Oct, 2006)

[xiii] Keeler, Barbara. “Court of the Uninformed: Searching for Unbiased Jures,” The Jury System, (1999: Newsweek), p. 14.

[xiv] Brendan Pereira. Even in the jury box, we might not look beyond race. New Straits Times (Malaysia) July 10, 2006 Monday.

[xv] Finkelman, Paul, Kermit Hall, and William Wiecek, (Eds.). American Legal History, pp. 27-29.

[xvi] Urriden, Mark. “Americans’ Right to Trial by Jury May Be Slipping Away,” ABA Journal, August 2000.

[xvii] Fried, Rinat. “A California Justice Takes Stand for Jurors,” The Recorder/Cal Law, May 11, 1999.

[xviii] Penny Darbyshire is a law lecturer at Kingston Polytechnic. In addition to standard jury service she has played a bit-part in Baldwin & McConville’s Birmingham jury project of the mid-1970s.

[xix] de facto Law Minister of Malaysia.

[xx] DAP-Bukit Gelugor.

[xxi] Nazri: Jury system will not be revived. New Straits Times (Malaysia) July 5, 2006 Wednesday

THE COMPARISON OF TRIAL WITH JURY AND TRIAL WITHOUT JURY IN MALAYSIAN LEGAL SYSTEM (PART I)

1 Feb

JURY TRIAL

JURY TRIAL

Introduction

As Trevor Groves writes in The Juryman’s Tale “belief in the jury system is an act of communal faith and political will.”

As the latest contribution to the John Grisham pension fund – Runaway Jury – heads for UK cinemas, life is set partially to imitate art at the Court of Appeal in London. The film tells the story of a juror and an accomplice who attempt to manipulate the result of a trial. At the Royal Courts of Justice, judges will be asked to interview jury members to ascertain whether the alleged hankerings of a jury forewoman for a prosecution silk could have unfairly influenced the verdict in a serious fraud trail. The film will probably make a lot of money; the appeal could make legal history.

A jury trial is a trial where a judge is supplemented by a jury, comprising citizens who are usually randomly selected and who are generally laymen. The accused is judged by his peers. It is seen as an important check against state power. [i] Usually the jury box consists of 12 people. They judge the facts of the case and usually an unanimous verdict is the accepted norm though in the United States, 11-1, 10-2, or 9-3 have been accepted.[ii]

In a jury trial, the jury is selected by the parties through a process called voir dire, where the judge or parties ask jurors questions in order to determine their biases and opinions. (Each side gets to reject a certain number of potential jurors.) After the jury is chosen and sworn in, the parties give opening arguments, present their evidence and give closing arguments. The jury then deliberates; when it reaches a decision, it returns to the courtroom and announces the verdict.[iii]

The final phase of a jury’s work is also its most mysterious. Both jury selection and the jury trial are, except in unusual cases, held in open court. Jury deliberations, by contrast, are absolutely secret. There are no prescribed procedures for juries to follow, and they are left to themselves in a locked room, guarded by the court, to reach a verdict based only on their judgment of the evidence presented. The jury is neither required nor allowed to offer their reasoning in court. They are asked only for their verdict.

The jury is seen as the gold standard of Western justice. Its adherents are found all over the world in all parts of the political spectrum and in every social class. However, for a number of years now the debate over the future of the jury system has rumbled on without achieving any consensus. One reason, perhaps, is that the mere mention of trial by jury makes a strong appeal to sentiment and tradition, often at the expense of rational discussion.[iv]

Jury trial is deeply rooted in England (unlike Scotland and other European countries), and has been rightly seen in the modern age at least as a particular aspect of the democratic rule of law. Juries are chosen at random so as to give a broad cross-section of society. They are not meant to be average or representative.[v] They are the means by which the general public have a say in important decisions affecting law and order, and are sometimes even a bulwark against state power. Jurors’ discussions are intended to be a distillation of the citizens’ collective experience of life: that has been said to be the strength of the jury system.[vi]

There is something intrinsically fairer about being judged by one’s peers rather than a grumpy old man in a silly robe. Juries are associated with government by the people, while the judiciary is often cast as the tyrant of law and order. Lord Devlin, the British legal thinker, said jury trials were “the lamp that shows that freedom lives”. In practice, however, some may opine that Mark Twain is probably closer to the truth. He defined the jury as “the most ingenious and infallible agency for defeating justice that human wisdom could contrive”. Jurors are notoriously fickle, and that is when they can be got together as a quorum in the first place. Malaysia did away with them in 1995. Even Britain, whose tradition of trial by jury is said to go back to the Middle Ages, has had second thoughts. The Labour Government moved to restrict it in 2000 on the grounds that criminals were using it to “play the system”.

Even so, Attorney-General Tan Sri Abdul Gani Patail’s proposal to bring back jury trials cannot be dismissed as the musings of an idealist. Malaysians, he says, are no longer the ignoramuses that made them such a hindrance to due process in the past. Justice is better served by democratic averages or what Gani calls “the reasonable man standard”. A group of disinterested persons is likelier to arrive at a more considered evaluation of the evidence than a single and possibly biased member of the Bench. Besides, it is not as if Gani intends to apply the jury system as extensively as, say, in America. Serious crimes involving capital punishment, for example, certainly deserve more rigour, in their investigation, prosecution and adjudication, than has been seen from the conduct of several high-profile cases recently.

Apart from its principled stand, Gani’s proposal carries a subtext. Solicitor-General Datuk Idris Harun had suggested earlier that jury trials could be an antidote to judicial corruption. Dealing with troublesome laymen was a rite of passage in the high reputation of the Malaysian judiciary prior to its travails in the 1980s and thereafter. Juries may be essential to the doctrine of separation of powers by relieving judges from executive or external pressure. Nevertheless, many lawyers remain chary of surrendering decisions of guilt and innocence to a bunch of tyros. Gani must not only answer their doubts but the larger question of whether a system already slowed by its present burdens of proof will not be brought to a halt by the heavier ones that juries demand.[vii]

Michael Feldberg[viii] says: “The most experienced trial lawyer I ever worked with said there are two rules about picking a jury – one, you can never predict who is going to go which way, and two, you will always try.”

JURY TRIAL SELECTION

JURY TRIAL SELECTION

Historical Developments of Jury Trial in Malaysia

In the former British settlements of Penang and Malacca, the introduction of English law brought about a system of trial by jury (a jury consisted of originally twelve, but later seven, persons) in all criminal cases on indictment. In the Malay states, Sarawak and North Borneo, trial by jury had not been available, and capital cases were tried by a judge sitting with two assessors.

Due to concerns about miscarriages of justice during the Malayan Emergency, the first prime minister of Malaya, Tunku Abdul Rahman, extended trial by jury to all capital cases in Malaya after independence in 1957.

In Sabah and Sarawak, which did not join the Federation until 1963, capital trials continued to be tried by a judge sitting with two assessors, as they had been before independence.

In 1978, jury trials in Penang and Malacca were restricted to capital cases, bringing them into line with the rest of Malaya. From 1 January 1995, jury trials and trials with assessors were abolished throughout Malaysia. The Johor Bar was in the forefront in 1991 in calling for the abolishment of trial by jury. The reasons given were that:-

1. It was archaic, a colonial heritage void of merit, costly and time-consuming.

2. It was dangerous to leave a man’s life and liberty in the hands of persons who are inexperienced and emotional.

3. Most expert and forensic evidence is still in English. The juror’s proficiency in languages is questionable.

4. Jurors do not have to give reasons for their verdict. They could be swayed by eloquent counsel.

5. Jurors are generally timid. The most vocal amongst them is generally elected the foreman. With his verbosity, he will control six other minds and sway them.

6. But jurors as a class loath having to return a guilty verdict. They are mindful that a guilty verdict means death to the accused. They do not want to live the rest of their lives with the stain of having condemned a man to death.

7. There will be no play-acting if jurors are not involved in trials.

However, in 2006, Attorney-General Tan Sri Abdul Gani Patail felt that the jury system should be re-introduced since jury trials are a symbol of individual liberty – one is judged by one’s peers and not by judges who may be out of touch with standards set by the ordinary man.

Much interest has been generated since Attorney-General Tan Sri Abdul Gani Patail proposed that jury trials be brought back.

Experiences of Jury Trial in Other Jurisdictions

Jury trial has been in existence in England for over 800 years. Over the years, their function has changed from being a body of witnesses to having to decide the facts of the cases they try on the evidence put before them, and being disqualified if they already have any involvement in the case. The struggle for independence of a jury’s verdict was finally won some 300 years ago, in Bushel’s Case[ix] where Vaughan CJ stopped jurors from being punished. In that case, jurors had been imprisoned because they had acquitted William Penn for participating in an unlawful assembly.

The jury is a core political institution, a central part of the system for handling serious criminal cases in England. It enshrines the basis democratic demand that the law be accountable to the people. So closely is its independence guarded and so sacrosanct are its inner workings considered, that the presence of a stranger in the jury room during deliberations will invalidate its verdict.

Lord Denning[x] recorded that until 1854 all civil cases in the courts of common law had been tried by juries. Indeed there was no other mode of trail available. However since then the use of juries had declined and in 1965 they were involved in only two per cent of civil cases. He explained that damages for pain and suffering and loss of the amenities of life in personal injury cases could never be truly compensatory and that conventional scales of awards had evolved. The unsuitability of juries for determining such awards stemmed from the practical difficulty of informing them of the conventional scales or of the judge giving them sufficient guidance to enable them to make an appropriate award without usurping their function.[xi]


But its very secrecy is a source of weakness, making it vulnerable to charges of stupidity, capriciousness, and bias.[xii] Whilst there have been many attempts to test the validity of such charges, research was effectively ended by the Contempt of Court Act, 1981, s 8 of which makes it a contempt to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings. Some ingenuity is, therefore, required to lift the veil.[xiii]

The peremptory challenge to jurors was abolished in England and Wales by the Criminal Justice Act 1988 after a previous reduction in challenges from seven to three.[xiv] Most significantly, the Emergency Provisions Act of 1973 set up the non-jury Diplock Courts in Northern Ireland following a report from the Diplock Commission which included the recommendation that ‘trial by judge alone should take the place of trial by jury for the duration of the emergency’. This recommendation found its way into the 1973 legislation in respect of ‘scheduled offences’ which included the most serious criminal offences including murder, robbery and kidnapping arising usually, though not always, out of terrorist activities.[xv]

The jury trial finds expression in the American legal system in three places: the grand jury, the criminal petit jury, and civil petit jury. Each is guaranteed in the federal courts by the U.S. Constitution, and every state uses them. In the United States, jury trial is held in the highest esteem. It is truly seen as a fundamental constitutional right. This is reflected in the far greater use of juries in both minor criminal trials and in the many civil cases in which the right of jury trial in England has long since passed.[xvi]

The Anglo-American jury is a remarkable political institution. It recruits twelve laymen, chosen at random from the widest population; it convenes them for the purpose of the particular trial; it entrusts them with great official powers of decision; it permits them to carry on deliberations in secret and to report out their final judgment without giving reasons for it; and after their momentary service to the state has been completed, it orders them to disband and return to private life.[xvii] The jury is thus by definition an exciting experience in the conduct of serious human affairs that, virtually from its inception, has been the subject of deep controversy.[xviii]

In 1776, the Declaration of Independence listed as a grievance against George III his “depriving us of the benefits of trial by jury”. Fifteen years later, the sixth amendment promised the people of the United States what they already had been promised by the Constitution of 1789 and by their states — that in all criminal prosecutions they would enjoy the right to jury trial.[xix]

Criminal and civil juries reflect the differences between the criminal and civil law, and most cases in the United States are settled before they go to trial. In cases that go to trial, a person does not have the right to a jury trial in every instance. Finally, an accused person has the right to a trial by jury but may waive that right in favor of a bench trial before a judge; in civil trials, both parties can agree to a bench trial. Thus a jury trial generally takes place only in those instances where one side in a civil case, or the accused, in a criminal case, believes it is in their best interest. The right to trial by jury, however, influences even the resolution of cases that never go to trial, “like the visible cap of an iceberg, exposing but a fraction of its true volume”[xx]

While UK juries maintain the lowest of profiles, quite the opposite is true in the US, where jurors can stand on the courthouse steps at the end of a trial and explain how they came to their verdicts.

Juries are much more widely used in the US than in the UK, particularly in civil litigation, where either party can demand a jury. In the federal courts in 2002, juries were involved in 3,006 trials compared with 1,563 bench trials.[xxi]

On the other hand, Japan is about to embark on a democratic experiment with important consequences for the rest of Asia. After a lapse of 60 years, the country is planning to bring back a jury system – but a huge effort will be required to convince ordinary Japanese about its advantages. Americans can help by sharing their jury experiences with the Japanese.

Beginning in 2009, Japan will institute a jury system called saiban-in. Juries consisting of three law-trained judges and six citizens chosen by lottery will decide criminal cases by majority vote. Japan had an American-style jury system for 15 years, but it was abolished by Japan’s military government in 1943. Since then, verdicts have been decided by three-judge panels, leaving citizens with no voice in a system in which virtually all criminal trials end in a conviction.[xxii]

The return to citizen participation represents a bold commitment to have ordinary Japanese take 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 goals are noble, but the new system faces many challenges. The government has already begun a campaign to educate the Japanese about the advantages of a jury system, but there are troubling signs that the message may not be getting through.

According to surveys conducted by a sociologist, Hiroshi Fukurai, the prospect of jury service intimidates many Japanese; other polls show 70 percent of them don’t want to be on juries. Japanese are much more likely to fear retaliation from defendants than American jurors are. They have far less confidence than Americans do in their ability to judge fairly. The government will review the new system after three years. If it concludes that jury service is too difficult for the Japanese to accept, it may scrap it.

Japan’s democratic experiment will be closely watched by the rest of Asia. South Korea is considering establishing a jury system. Reformers in China, Taiwan and Thailand are calling for greater involvement of citizens in their legal systems. If Japan’s effort to introduce a jury system fails, democracy movements elsewhere in Asia will suffer a serious setback.

Americans can play an important role in helping the new system succeed. They can reassure the Japanese that jury service is both feasible and valuable. While few Americans look forward to jury service and many are inconvenienced by it, the majority of Americans who do serve on juries report having positive experiences. It’s hard to imagine how Americans could fulfill their role as democracy advocates any better than by helping the Japanese become jurors.


[i] Constitutional Rights Foundation. (1987). We the Jury: A Simulation for the Classroom. Zenger Publications.

[ii] Constitutional Rights Foundation. Criminal Justice In America (1993), pp. 110-135.

[iii] Katz, Stanley Nider, (Ed.). “Introduction,” pp. 1-33, in James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger Printer of the New York Weekly Journal (1972).

[iv] Brenner, Susan. The Voice of the Community: A Case for Grand Jury Independence. Virginia Journal of Social Policy & the Law (1995).

[v] R v Smith [2003] 1 WLR 2229

[vi] R v Watson [1988] QB 690

[vii] The jury is still out. New Straits Times (Malaysia) July 2, 2006 Sunday

[viii] a former federal prosecutor and now head of Allen & Overy’s US litigation practice in New York.

[ix] 1670) 6 St Tr 999.

[x] Ward v James [1965] 1 All ER 563

[xi] Turow, Scott.“When a Secret Proceeding Has No Secrets,”New York Times (reprinted in Chicago Daily Law Bulletin, August 12, 1998).

[xii] Alden, Bill. Access to Hiss Transcripts Granted. New York Law Journal, May 14, 1999.

[xiii] Mike McConville. (2003) Shadowing the jury. UK Law Journal.

[xiv] Hoffman, Morris B. “Abolish Peremptory Challenges,” Judicature, Volume 82, Number 5, (March-April 1999), pp. 202-205.

[xv] Bendavid, Naftali. “Powerful Grand Jury System is Shrouded in Secrecy,” Chicago Tribune, February 19, 1998.

[xvi] Administrative Office of the United States Courts. Handbook for Federal Grand Jurors.

[xvii] Association of Trial Lawyers of America and Street Law, Inc. “Voir Dire: To Speak the Truth,” When Justice Is Up To You: Celebrating America’s Guarantee of Trial by Jury (1992: Association of Trial Lawyers of America), pp. 33-52.

[xviii] Landsman, Stephan. “The Civil Jury in America: Scenes from an Unappreciated History,” 44 Hastings Law Journal 579 (1993), pp. 579-619.

[xix] Albert W Alschuler and Andrew G Deiss. (1997). Three Huzzas for The Jury. UK Law Journal.

[xx] Kalven, Harry, Jr., and Hans Zeisel. The American Jury (1966), pp. 1-32.

[xxi] Grania Langdon-Down. The Future Of Juries: US Juries: Do They Show The Way The UK Courts Will Go?

[xxii] Robert E. Precht. (2006). Japan, the jury. The New York Times

The Legality of the United States Attack on Iraq

31 Jan

iraq war

Introduction

On 19th March, 2003, the United States launched a full-scale military attack against the sovereign state of Iraq. Following the September 11th attack on United States, one could, if one believes American allegations about the perpetrators (though there has been no investigation), make a case for its use of force in Afghanistan as an exercise of the right of self-defence.

However, the US attack on Iraq could not be so defended. Iraq had neither attacked the US, nor was it in the final stages of preparing for such an assault. Thus, for the first time in the 214-year history of US, it has waged a Preemptive War by leading the world in a war of aggression, shattering lives and dehumanizing its victims. The illegal use of force in Iraq threatens to return us to a world in which the law of the jungle prevails over the Rule of Law.

Undoubtedly, a new world paradigm in the international armed conflicts is evolving and has given rise to different approaches and policies in the observance of international law. If the US creates a precedent through its practice, that precedent will be available, like a loaded gun, to other States. The preemptive use of military force would establish a precedent that the US has worked against since 1945.

It is pertinent to note that preemptive self-defense would provide legal justification for Pakistan to attack India, for Iran to attack Iraq, for Russia to attack Georgia, for North Korea to attack South Korea, and so on. Any State that believes another regime poses a possible future threat regardless of the evidence, could cite the US invasion of Iraq. The invasion of Iraq would do grave damage to the norms of restraint, in a highly equivocal situation that simply does not demand a revolutionary change of the rules.

Were the US justified under international law to wage war against Iraq? The answer turns very largely on the interpretation given to Resolutions passed by the Security Council, which inevitably leads one to the United Nations Charter. The United Nation was born out of war and in the aftermath of the Second World War as a determined effort to reduce wars and human sufferings, has since then become a pale version of its idealistic original, distorted by the economic-military interests of western powers. When representatives of fifty countries assembled in San Francisco in 1945 to draw up the UN Charter, modern threats of terrorism such as those posed by the Al Qaeda terrorist network were not yet known.

The devastation caused by the September 11th terrorist attacks on the US would not, however, have been an unfamiliar spectacle to the survivors of World War II. However, with the founding of the United Nations, the legitimacy of the use of force by individual states under international law has been substantially narrowed. The UN Charter states, in its Preamble, that the UN is established to save succeeding generations from the scourge of war. Its substantive provisions obligate Member States of the UN to settle their international disputes by peaceful means.

As use of force is now prohibited since World War II under international law with restricted exceptions, the legality of the US attack on Iraq cannot be lawfully substantiated on any exceptional grounds. The United States, as a member state of the United Nations, is bound by this legal regime. In fact, the US was a primary proponent of the U.N. Charter at the end of World War II. In its military action in Iraq, the US purported to act within the constraints imposed by the UN Charter. Discourse from the Bush administration has focused on the legality of pre-emptive action stemming from the imminence of an Iraqi nuclear, biological or chemical attack on the US, with minimal empirical evidence to support that assertion.

As a law student, I admit that the attack could protect the US citizens from future attacks, but I firmly submit that the US attack on Iraq is illegal due to the illegal exercise of preemptive self-defence, illegal use of force without authorization by UN, and the prohibition of killing of innocent people according to Islamic teachings.

Argument 1: The attack by the United States was not justified by pre-emptive self-defence.

The US is relying on the doctrine of preemptive self-defence to justify its invasion of Iraq. It alleged that Iraq was in possession of weapons of mass destruction and that it intended to unleash against the US at some future date. Alternatively, it argued that Iraq intended to sell these weapons to terrorists and enemies of the West.

Nevertheless, Byers (2006) propounds that the doctrine of preemptive self-defence is a blatant violation of international law. It seeks to give to some powerful States the right to use military force against States that are seen as hostile. Article 51 of United Nation Charter states:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” (p.5).

It is universally acknowledged that a State may use force in its own defence, if necessary to protect itself, pending collective action by the United Nations Security Council to provide that protection. However, the self-defence concept, if read too broadly, may eviscerate the prohibition against the use of force. Literally, Article 51’s articulation of the right seems to preclude the preemptive use of force by individual states or groupings of states and to reserve such uses of force exclusively to the Security Council. Measures in self-defense, in this understanding, are legitimate only after an armed attack has already occurred.

The definition of ‘armed attack’ is broad, as established in the case of Nicaragua v USA (1986), where the International Court of Justice held that the concept covers the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries and a state’s substantial involvement therein. So could the Iraq’s possession of weapons of mass destruction satisfy the Nicaragua definition of ‘armed attack’? It is therefore logical to suggest that the US was not a victim of ‘armed attack’ within the meaning of Article 51.

Thus, the right enshrined in Article 51 does not authorize preventive and preemptive self-defence. The reason is that if these two are also included within folds of the right of self-defence, there will be no end to it and many aggressive acts will be attempted to be justified in the guise of this right.

Even if preemptive self-defence is legal, the question was whether the United States was under armed attack when it commenced armed action against Iraq on 18th March, 2003. Under Art 51 of U.N. Charter, the armed attack to which a State responds must be occurring or be so imminent as to be obvious. In a much-cited exchange with Britain in 1842, U.S. Secretary of State, Daniel Webster, said that force might be used in self-defence only if the need is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation” (A Digest of International Law, p. 412).

Presently, the majority of the international community is convinced that the US has failed to show that Iraq poses an ‘imminent’ threat to the US. The US has failed to provide tangible empirical evidence that Iraq poses such a threat. Since large amount of weapons of mass destruction have not been found, the Bush’s argument that it was urgent to attack quickly to protect the US has been found to be fallacious. It now appears to the world that US attacked Iraq to gain control of Iraq’s oil. Hence, preemptive self-defence is illegal under international law and violates the UN Charter. Even if a preemptive self-defence is legal, Iraq did not pose a sufficiently immediate threat to the US and thus the invasion was a preventive war, which clearly violates international law.

Argument 2: The attack was not expressly authorized by the United Nation Security Council.

Article 2 (4) of the UN Charter enshrines the principle of prohibition of the use of force as a cornerstone of peaceful relations among the States. Moreover, Article 51 requires that states inform the Security Council of any measures they will take in self-defence, and that once the Security Council has acted to resolve the matter, any measures taken must cease. Thus, only genuine collective self-defence authorized by the UN Security Council of binding enforcement mechanism pursuant to Article 42 of UN Charter which can turn the use of force into an approximation of an international police action (Dinstein, 2005).

Members of the Bush administration have relied on UN Security Council Resolution 1441 which provides that the Security Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations in order to argue that force against Iraq has been authorized.

Although the Security Council has passed a series of resolutions concerning Iraq over the past 12 years, but only Resolution 678, passed on Nov 29, 1990, arguably, authorizes the use of force. UN Resolution 678 (1990) authorized member states to “use all necessary means to uphold and implement Resolution 660, passed on Aug 2, 1990 which demanded that Iraq withdraw from Kuwait and all subsequent relevant resolutions and to restore international peace and security in the area” (p. 16).

However, the question that arises was whether the United Nations Security Council has authorized the US attack on Iraq? When US planned to invade Iraq regardless the UN authorization which would require significant further weapons inspections, many writers and Muslim countries criticized its effort as unwise, immoral, and illegal.

United Nations Secretary-General Kofi Annan, put a sharper point on Cook’s objection, stating in September 2004 that, “From our point of view and the UN Charter point of view, the war was illegal” (Washington Post, September 17, 2004).

Apart from the fact that the US would be left with no alternative but to place reliance on previous resolutions ending with resolution 1441, they would also have to explain their conduct from 24 February 2003 to 17 March 2003 in unsuccessfully seeking a second resolution – which is the best evidence of their own position that a further resolution was needed because previous resolutions were inadequate.

Besides that, upon discovering that the second resolution could not be passed by the Security Council, US decided to withdraw it and proceed to war. Such conduct would amount to estoppel in common law which would well apply in the international sphere in these peculiar circumstances. It may also constitute bad faith. Accordingly, the language used in Resolution 1441 cannot be interpreted to give the US the right to use force against Iraq.

It is pertinent to note that the UN Charter’s drafters specifically designed the Security Council to meet threats to peace, preserving the right of a state to act unilaterally only in cases of armed attack. In cases lacking objective evidence of an armed attack, the UN Charter requires multilateral decision-making. Permitting pre-emptive self-defence at the sole discretion of a State is fundamentally at odds with the UN Charter’s design. It is an exception that would overthrow the prohibition on the use of force in Article 2(4) and thus the very purposes of the UN.

The history of Article 51 of UN Charter suggests that the article should safeguard the right of self-defence, not to restrict it. Furthermore, it is a restriction (no right of anticipation) which bears no relation to the realities of a situation which may arise prior to an actual attack and call for self-defence immediately if it is to be of any avail at all. Bowett (1999) advocates that “no state can be expected to await an initial attack that may well destroy the State’s capacity for further resistance and so jeopardize its very existence” (p. 193). Beard (2002) and O’Connell (2002) suggest that a State may use force in self-defence, even if it cannot give details as to the expected attacks. Hence, Article 51 should not be construed so narrowly and that it would be a travesty of the purposes of the Charter to compel a defending state to allow its assailant to deliver the first and perhaps the fatal blow (Waldock, 1999).

On the other hand, US has also relied on UN Security Council Resolution 1441 which provides that the Security Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations in order to argue that force against Iraq has been authorized.

Even if the UN Security Council Resolution 1441 did not expressly authorize the use of force against Iraq but a previous authorization, accorded in 1990 had been revived as a result of Iraq’s material breaches of the 1990 ceasefire resolution.

In addition, when a State commits cruelties and persecution of its nationals in such a way that deny their fundamental human rights and to the conscience of mankind, intervention in the interest of humanity is legally permissible. The US based its attack on the support of the Iraqi people who wanted to get rid of the regime by whatever means possible in the name of modern American democracy.

Furthermore, the US attack was to destroy the terrorist link to al-Qaeda and to promote its image and functions as the world Samaritan in countering global terrorism. This rationale was espoused by the United States, beginning in 1986, as a way in which States might lawfully use force in their own defence (Harris, 1998).

The US Department of State, under George Schultz, developed a legal rationale for responding to State-sponsored terror attacks, whereby a State may use force in self-defence if it had reason to believe that a State that had already used force is planning to do so in the near future (Bernard Gwertzman, 1986). Under this rationale, the US bombed Libya in 1986. The idea was that one can consider that an armed attack is occurring if some force has already been used and other force is anticipated. Although it did not specify dates, the United States asserted that Libya planned terrorist attacks in the future, and it claimed to know the identity of particular US installations that were to be targeted.

Refutation: The US attack could not be justified on any grounds.

Nonetheless, pre-emptive self-defence is not a thriving doctrine of international jurisprudence. Indeed, Henkin (1998) has argued that a right of pre-emptive self-defence did not exist when he propounded:

“Nothing in drafting of UN Charter suggests that the framers of the Charter intended something broader than the language implied. It is precisely in the age of the major deterrent that nations should not be encouraged to strike first under pretext of prevention or pre-emption” (p. 897).

Art 51 of the UN Charter permits member states to defend their sovereignty and to exercise the inherent right of self-defence if an armed attack occurs. However, Iraq did not and has not attacked the US. In fact, there is no credible evidence that Iraq has any connections with Al-Qaeda terrorists or has possession of weapons of mass destruction (New Straits Times, March 28, 2003). Since weapons of mass destruction have not been found, the Bush’s argument that it was urgent to attack quickly to protect the US has been found to be fallacious. It now appears to the world that US attacked Iraq to gain control of Iraq’s oil.

While U.S. military planners may have made a strategic miscalculation by underestimating the will of Iraqis to resist their war of liberation and to wage a protracted guerrilla-style war, Washington’s political leaders may also have underestimated the amount of militant opposition the war has ignited throughout the Muslim world.

Apparently, Egypt’s President, Hosny Mubarak (2003) warned that if the war in Iraq drags on, it will fuel Islamic militancy worldwide and if there is one Osama bin Laden now, there will be 100 Osama bin Ladens in the future.

To make matter worse, the protests from Rabat in Morocco to Peshawar in Pakistan and the streets of Jakarta in Indonesia have rattled the Islamic world as most of its 1.3 billion Muslims reject US and British claims that they have invaded Iraq to liberate the Iraqi people (National Post Canada April 3, 2003).

Evidently, there appears to be no justification in the view that humanitarian intervention with support of Iraqi people was established in customary international law because there was no widespread and consistent State practice in support of it. Even if it was so, it could not survive Article 2 (4) of the UN Charter where all members shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any State (Murphy, 2002).

Ostensibly, the terrorists’ network of Al-Qaeda did not have sufficient nexus with Iraq nor the alleged harboring of al-Qaeda activists by the Iraq qualified the brutal attack on Iraq. Even if it was true, a failure to extradite a suspect does not render a State responsible for the acts of such an individual. In fact, it was not clear that capturing Al-Qaeda operatives in Iraq would protect the United States, given that Al-Qaeda apparently recruited primarily outside Iraq and maintained groups of operatives in other countries.

Islamic Perspective: Islam is against terrorism.

The name “Islam” comes from the Arabic word “salama that means peace. Thus, Islam is a religion based on achieving peace through total submission to Allah (Iman) and to moulding human lives according to the guidance of Allah bestowed through the Qur’an and Sunnah (Qur’an, al-Hijr: 1-3; an-Nahl: 90).

Islam does not subscribe to violence and terrorism, and in fact, prohibits them. Adherents of Islam who have adopted the path of terrorism in the name of jihad are in fact on the wrong path. Jihad is not a holy war and should not be considered a synonym of “crusade”. It means striving or struggling in the way of God. As such, Muslims have been ordained to defend Islam only when the community of faith is under attack.

Therefore, Islam is a religion of peace and tolerance that summons individuals to compassion and justice. It prohibits extremism, the use of force and oppressive acts that are not in conformity with the Islamic teachings. Surah al-Maidah: 32 states that a person who kills even a single person, unless it is in retaliation for someone else, commits a crime as if he had murdered all mankind on earth. Thus, the illegal use of force by the US is prohibited in the eyes of Islamic teachings. Surah Yunus: 25 says that God calls to the Abode of Peace and He guides whom He wills to a straight path.

Pragmatically, if we continue to penalize the community, as America is doing by retaliating against every act of terrorists, the sense of hatred and revenge will escalate in the community to which the terrorists belong. For this reason, God in the Qur’an has prohibited penalizing the whole community indiscriminately for the wrong of some of its community members. The Qur’an admonishes those who oppress others and transgress the bounds of what are right and just (Harun Yahya, 2002).

Terrorism is undoubtedly an international phenomenon. It cannot be identified with any particular community, race or religion. Unfortunately, many people in the West unthinkingly and disparagingly have identified terrorism with Muslims and Islam.

This might create a Clash of Civilizations and might be counterproductive. This situation has to be defused. Islam, in its true sense, is a religion of peace, tolerance, and respect for human life. When it is properly understood, and its true percepts are followed, it offers a path to enlightenment, harmony, a stable and responsible government, progress and prosperity.

Conclusion: The role of the United Nations and the international community.

While this conclusion may, to some, seem harsh against the United States, the countervailing considerations must be taken into account. Self-defence is a doctrine which, while critical to the international legal order, holds the potential to undermine the prohibition on the use of armed force between States. Unless self-defence is kept within appropriate bounds, the prohibition against use of force will become meaningless. What Henkin (1987) wrote remains the case today that:

“It is not in the interest of the United States to re-construe the law of the Charter so as to dilute and confuse its normative prohibitions. In our decentralized international political system with primitive institutions and underdeveloped law enforcement machinery, it is important that Charter norms—which go to the heart of international order and implicate war and peace in the nuclear age—be clear, sharp, and comprehensive; as independent as possible of judgments of degree and of issues of fact; as invulnerable as can be to self-serving interpretations and to temptations to conceal, distort, or mischaracterize events. Extending the meaning of ‘armed attack’ and of ‘self-defense,’ multiplying exceptions to the prohibition on the use of force and the occasions that would permit military intervention, would undermine the law of the Charter and the international order established in the wake of world war (p.69).

Essentially, measures for preventive military action should be put to the UN Security Council which can authorize such action if it chooses to. In order to give meaning to the law in question, the UN must not sweep the wrongful acts of the aggressors under the carpet but instead make a thorough investigation and bring the culprits to justice for otherwise it would serve a bad precedent for the future international conflicts. Similarly, UN must not act like a tiger without its teeth. If the war is prolonged, it could unite a wide variety of militant Muslim groups, including Osama bin Laden’s terrorist network, al-Qaeda, rallying them to a single cause: To stop what they see as U.S. aggression in a Muslim nation. The former US ambassador to Iraq, Zalmay Khalilzad (2007) explains that UN needs to intervene in Iraq as the UN possesses certain comparative advantages for undertaking complex internal and regional mediation efforts despite helping internationalize the effort to stabilize the country. Having said that, the inner constraints of Article 51 of UN Charter have not served as barriers to the US from an illegal invocation of that provision.

In terms of whether international law is still valid in governing the use of force and self-defence, it is clear that there is disagreement about the precise interpretation of both Article 2 (4) and Article 51. Franck (1970) and Martyn (2002) have further argued that international law on this matter is too ill defined and that there is a need for the International Law Commission to codify exactly what are the principles applying to self-defence and use of force given the changed realities of the post war quarter century with the threat of ‘terrorism’. By the same token, the US has no right to invade another state because of speculative concerns about that State’s possible future actions. The current international order does not support a special status for the US a singular right to exempt itself from the law. To maintain a legal order that restrains other States and to uphold the Rule of Law, the US should continue its conservative commitment to limits on the unilateral use of force, and reject a reckless doctrine of pre-emptive self-defense.

In short, the US attack cannot be justified in international law as it was not authorized by the UN Security Council and the international community as a whole. The US attack on Iraq was a fundamental breach of international law that would seriously threaten the integrity of the international legal order that has been in place since the end of the Second World War.

© Copyright reserved by Ng Boon Siong. This article was published in the IIUM Student Yearly Law Journal 2008.