November 10, 2009


A lot has been written lately by many parties regarding judicial reform. The writers focus on independence of the judiciary and the integrity of judges. Those are absolutely essential components of a judiciary in a democratic society.

However, they are far from sufficient.

If all the judiciary has is independence and judges who have high integrity, what will result is decisions that are merely the administration of law: if someone commits offence X they receive punishment Y. Justice will be absent.

Laws are made by the Legislature. Members of Parliament, however noble their intent, may fail to be aware of some consequences of laws they create.

They may lack the imagination to see the consequences or the situation causing a particular consequence may not be foreseeable. For example, the technology involved in the unjust situation may not yet exist when the law was created.

Sometimes unforeseen consequences can result in great injustice if laws are blindly administered.

There is a remedy that injects justice into the administration of laws. It is called a Jury.

Juries inject common sense and flexibility into the administration of law. They do that with their collective wisdom and intelligence.

Abraham Lincoln reportedly said "You can fool all the people some of the time and some of the people all of the time, but you can't fool all of the people all of the time".

That is very true in the case of juries. Jurors are likely to understand the facts of a case, no matter how convoluted the arguments of the lawyers.

In addition to juries injecting justice into a judicial system, they also give credibility to the judicial system and the decisions reached.

In simple terms, which is less likely to be bribed, coerced or intimidated into arriving at a particular decison, 1 or 2 judges, or a jury of 10 (or 12) members of the rakyat?

To have a judiciary in Malaysia that is fit for a democratic society, trial by jury is NOT an option, it is a necessity.