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Fair Trial – Right to Trial by Jury

by Varatharajah Rajaselvan

I aver that the summary abrogation of the 'right to trial by jury' is the root cause of the consequential erosion of an accused's 'right of defence', and other impediments in general to the CPC [Criminal Procedure Code].

The repeal of the legal process of the jury-trial procedure in post-independence '60s, is an anachronism that has impaired and subverted the course of due process in our legal system. Thereof, I would like to request for a judicial review to redress the issue in law.

That it [the trial by jury] is universally practiced to this day by the Commonwealth nation countries and also in [the United States of] America should attest to its veracity in Judicial Penal Code protocol. Its repeal is a drastic measure that is patently radical and highly unethical, akin to gerrymandering or tampering with eugenics or human cloning.

Its controversial abolition, however expedient or pragmatic, had cast the die for subsequent depredations to the law, notorious among which was the enactment, without a referendum, of capital punishment for drug-trafficking in the '70s.

In retrospect, the abolition of the trial by jury practice, is an anachronism whose magnitude of autocratic intent is unparalleled. It is imperative that the right to trial by jury should promptly be reimposed by our Judicature. As a check and balance mechanism, trial by jury would visibly restore fair trial practice.

I say that it is anachronistic, because the reason ostensibly cited in the '60s was that jury service members lacking adequate education or intellectual maturity could be susceptible to the manipulations of astute defence counsels.

This reason, while worthy of merit and validation, then, is meretricious in the context of modern Singapore. We now have world class institutions of higher learning, and a globally lauded education system. Half a century on, we boast a population with a highly skilled workforce of professionals from all fields and vocations. In this situation, it should surely not a problem to find 12 good citizens to serve on the jury.

The continued espousal of legal trial practices without the benefit of the jury is unethical and counterproductive to the quality of jurisprudence in Singapore.

In actuality, it undermines the stature and calibre of our judicature. It falsely presupposes that our legal fraternity is not up to the work. That our learned DPPs [Deputy Public Prosecutors] and criminal lawyers are not capable of presenting prosecution arguments to a jury that is strong enough to convict accused persons, or, conversely, that our defence counsels are not qualified to present defence arguments that can vindicate a defendant to the jury.

Contrarily, our learned DPPs and legal counsels are equally trained and qualified, as well as others of their profession in Commonwealth countries. They certainly can handle with aplomb, all aspects of a jury trial requirements, as far as presentations of arguments are concerned. It is part of their legal complement of training and studies.

Naturally, they must be provided with the chance and opportunity to do this in our Courts of Justice.

The continued delay in reinstating the right to a trial by jury is prejudicial, and not in the least at the political expense of our government to do so in a proverbial 'sins of the fathers' type of scenario.

Citizens will wonder why it is so. Does the Government not trust their own citizens to morally and ethically sound verdicts, in tandem with legal parameters under the arbitership of judges who control the flow of court proceedings?

In our adversarial systems of trials held devoid of a jury, where judges are not obliged to act as surrogate defence counsels for unrepresented defendants, chivalry of justice is dead, especially in the stark absence of any provisions for a Public Defender's Office.

Such an impasse, presently leaves inadequate room for interpretation of legal manoeuvres by defence counsels, allowing an intrinsic unfair advantage for the prosecution to prevail. When such is arguably detrimental to the principle guarantee of a 'presumption of innocence', as enshrined by our judicature.

Having a jury system allows for a symbiosis of collective responsibility that is inclusive: Representing societal consensus in determining the course of justice. Crucially, it reduces the brunt of moral conscience carried by judges who solely preside over capital punishment and other weighty matters.

Moreover, any concern of a conflict of interests are negated, as an abiding duality of roles effectively limit jurors to return only on verdicts and reserves sentencing and punishment that supremacy of justice and its merciful dispensation resides with the judiciary, to safeguard public interests.

The dynamism of criminal law practice suffers greatly due to an elemental absence of the jury trial practice in our courts. The phenomenon is borne out by the dearth of lawyers who specialise in criminal law, locally.

What is more baffling is that why is it that our learned judiciary is capable of remaining silent on such a profound issue of law? Despite successive changes in Chief Justices and Law Ministers and Prime Ministers, the issue has not been revisited or challenged seriously and openly enough.

I am sure that if the right to be tried by a jury is mooted collectively to our Prime Minister and Law Minister, and that a White Paper of Special Parliamentary Session is tabled regarding the matter, it will surely bring positive dividends for Singaporeans, politically and socially.


 

For reference on the abolishment of the jury trial system in Singapore

1. From https://www.supremecourt.gov.sg/about-us/the-supreme-court/supreme-court-jurisdiction:

Singapore does not have jury trials, which were abolished in 1969. Trials for capital offences are heard before a single Judge.

2. From http://www.postcolonialweb.org/singapore/government/leekuanyew/lky2.html:

Lee Kuan Yew's Opposition to Trial by Jury
George P. Landow, Professor of English and Art History, Brown University; Distinguished Visiting Professor, National University of Singapore, 1998-1999

In an interview with the British Broadcasting Corporation on 5 March 1977, which his biographers had included in full, the man who has done more than anyone else to create Singapore explained why he rejected Anglo-American system of trial by jury for his country, despite the fact he trained as a lawyer at Cambridge.

In his first case, he was "was assigned to defend four murderers." Fleeing the Japanese, a Dutch woman had entrusted her daughter to a Malay-Muslim. The Dutch woman came back after the war and reclaimed her daughter.

The Chief Justice, an Englishman, pending hearing of the case, sent the girl who had been converted into Islam to a convent to be looked after -- and then all hell broke loose.

The police force mutinied. Malays and Muslims took out their knives and a lot of white men, just because they were white, nothing to do with the case, were killed. These four men were accused of killing a Royal Air Force officer and his wife and child. They were travelling on a bus from RAF Changi down to town. [The Maria Hertogh riots.]

Lee Kuan Yew, who had been assigned the case, explains that he did what any advocate does: He "worked on the weaknesses of the jury -- their biases, their prejudices, their reluctance really to find four Mussulmen [Muslims] guilty of killing in cold blood or in a heat of great passion, religious passion, an RAF officer, his wife and child."
And he employed "the simple tricks of advocacy -- contradictions between one witness and another, contradiction between a witness and his previous statement to the police and the preliminary enquiry."

When the jury acquitted the murderers, Lee Kuan Yew reported: "The judge was thoroughly disgusted. I went home feeling quite sick because I knew I'd discharged my duty as required of me, but I knew I had done wrong."

He thereupon concluded that no government in which he had a say would employ this foreign, "foolish, completely incongruous system." Pointing out that the French and other Latin nations do not use trial by jury, Lee Kuan Yew argued that it is too "alien" to the basic social attitudes of many other cultures, including those of Asia.

In his memoirs, Lee added more details, but the main points still hold [...] It turns out that the young barrister defended four out of fourteen defendants; he brought judge and jury to the scene of the murders at night, demonstrating how difficult recognising individuals would have been in such conditions, and although "Chinese and Indian jurors were never happy to convict if it meant sending a man to his death," the evidence weighed heavily enough upon their consciences that they did in fact convict nine of the fourteen of "causing grievous hurt," though three of his own clients "got off scot-free" (144).

In the memoirs, Lee also explained in more detail why he believed his clients guilty, but the conclusion he drew from this painful experience of the jury system remained the same: "I had no faith in a system that allowed the superstition, ignorance, biases, and prejudices of seven jurymen to determine guilt or innocence" (144).

References:

Han Fook Kwang, Warren Fernandez, Sumiko Tan. Lee Kuan Yew: The Man and His Ideas. Singapore: Times, 1998.

Lee Kuan Yew. The Singapore Story: Memoirs of Lee Kuan Yew. Singapore: Times, 1998.