Introduction of jury system in Malaysia
In a nutshell, the jury system is adopted to promote the idea of trial by peers. Trial by peers means a group of lay persons, without legal knowledge, perform a judicial function i.e decide whether or not the defendant guilty. According to EP Thompson, the jury upheld the needs for justice and humanity of the law.
The jurors are selected randomly regardless their race, religion and sex. Lord Denning, a famous
English Judge, stated that :
“12 persons selected at random are likely to be a cross-section of the people as a whole, and thus represent the views of the common man.”
In Malaysia, the jurors, previously, were also selected randomly. But the jury trial was only used for crimes that were punishable by the mandatory death sentence such as murder or drug trafficking. Unlike the UK jury system, only 7 people are called to serve as a jury in the Malaysia jury system. In terms of eligibility, anyone over 21 years of age is eligible to serve unless they have mental illness or disability (blindness, deafness etc). Those who are selected must serve as jury. Failure to do so can be convicted under Section 174 of the Penal Code:
“Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation, proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished…”
The jury is independent and does not take direction from the judge in their verdict (decision). However, the jury is required to make a decision after weighing up evidence and any decision made without following the law is called as a perverse decision.
Why Malaysia abolished the jury system
Malaysia effectively abolished the jury system on 1st January 1995. The biggest factors of the abolishing of the jury system can be seen in the Mona Fandey’s case, where the High Court found that Mona Fandey, her husband and Juraimi guilty of murder and sentenced them to death by hanging for their conduct of killing Mazlan Idris, an ambitious politician. According to asklegal.my, the sensational nature of the whole thing is said to be a leading cause for the abolishing of the jury system in Malaysia. This is because media exposure is capable of influencing the thought process of jurors. Consequently, jurors may reach a perverse decision. Besides, there is also an argument which says that jury system does not work in a multi-racial country like Malaysia as it could lead to racial biasness. This because jury is untrained in the legal profession and the verdicts is made based on their conscience, therefore, there is a possibility that the decision is made based on emotions or popular perception against the particular defendant which would have an adverse effect on the fairness of the trial.
The flaws of jury system
1. Attitude of the jury
The jury is, sometimes, acting ridiculously to reach the verdict. This can be seen in the case of R v Young1 , the jurors used a ouija board in reaching their guilty verdict. As a result, the court decidedthe case to be retrial. This case also proved that the jury system is time consuming and costly.
Besides, John Maude QC, one of English judges, stated that some of the people who are selected to serve as a jury may feel reluctant about participating and may rush their verdict to leave earlier. This might affect the quality of the legal system in the country.
2. Jury is not legally qualified
The jury is not legally qualified and makes the decision based on their conscience. This may result in a perverse decision (decision made without following the law) which may lead to injustice or unfair decisions. The case of R v Randle & Pottle2 have proved that the decision made by jury can lead to injustice. In this case the defendants were charged for helping the spy escape from prison and the judge have directed the jury that there was no defence available for them. However, the jury ignored the direction given by the judge and found them not guilty.
3. The complexity and technicality of the law
The jury is not legally qualified, therefore, the judge’s duty is to direct the jury in relation to law. However, the jury is also have a difficulties to understand the direction of the judge due to the complexity and technicality of the law e.g Fraud case. Additionally, the judge is also required to give all the possible direction to the jury. Failure to do so would affect the fairness of the trial. This can be seen in the case of Teoh Seng Lian v Public Prosecutor3 Where Syed Agil Barakbah S.C.J in the appeal to Supreme Court held that the failure to direct the jury on an essential point will cause a failure of justice in the case.
Should the jury system be implemented again ?
1. Avoid abuse of power
The jury system works to eliminate the issue of bias and abuse of power within the justice system. Tan Sri Musa Hassan, Former Inspector- General of Police, told the reporters that the governmentshould consider bringing back trial by jury for cases involving the death penalty in order to avoid abuse of power. When a group of jury is given the responsibility as a tribunal of fact to make a verdict, then there is no issue of impartiality of the judge. This is because some of the judges may have conflict of interest and make a decision in favour of a party that benefits him or her.
2. Fair, just and reasonable decision
In 2006, Attorney-General Tan Sri Abdul Gani Patail proposed that the jury system should be adopted again since trials by peers are a symbol of individual liberty. Trial by judge may bring unfairness because the judges may be out of touch with standards set by the ordinary man (objective test). This means the judge may not be able to relate your personal circumstances. Additionally, unlike judge, the jury is not bound to follow any Act of Parliament or judicial precedent. Therefore, the verdict will not be one that is rigid and it is much more flexible to ensure justice is done.
-  QB 324
-  1 WLR 1087
-  1 MLJ 44