University cum Court and Jury Mode Criminal Trials

Salutations.

My warm greetings to all Jurists present and participating via various virtual platforms. My heartfelt thanks to you Mr. Chairman for inviting me on behalf of BEIHAI ASIA INTERNATIONAL ARBITRATION CENTRE (BAIAC) to present the paper ‘Can Criminal Cases be Tried By A Modified Arbitration Methodology?’ at this forum. My answer to this difficult jurisprudential question is “Why Not!”

Before going through my jurisprudential justification on the caption – I wish to pay tribute to one of the great Singapore jurists, in the field of Arbitration, Justice Michael Hwang. He has been instrumental in inspiring me through his work on Arbitration which he shared. There are many more in Singapore I have to be thankful to. They have been my pillar of support to complete my research initiative to provide affordable arbitration for matters filed in court. Due to time constrain, I will reserve my tribute to them for another occasion.

(1) FCI Arb; Retired Judge, Court of Appeal Malaysia; Prof. for Arbitration and Dispute
Resolution of MAHSA University – With Special thanks to Prof. Dr. Umar A. Oseni; Datuk
Joy Appukuttan, Dinesh Nandrajog, Thiages -Advocates & Solicitors, Malaysia); CV Profile https://adrarbitrationchambers.com/hamid-sultan-bin-abu-backer-prof-and-retired-judge/

INTRODUCTION

The caption for discussion today is one of great interest not only to those who are involved in the study, practice and administration of justice, but the general public as well. To my mind the answer to the question, whether criminal cases can be tried by way of a modified arbitration methodology, is met by a resounding ‘Yes’ on my part. It can also be done within the spirit and intent of Magna Carta(2).

My proposed methodology for this purpose will relate to a hybrid Arbitration and Jury System with the ‘Jury Pool’ consisting of university arbitrators and others under my concept. For the purpose of this paper, I will launch it as ‘University cum Court and Jury Mode Criminal Trials’, and will also set out the reasons for the proposal.

(2) I am fortified with this answer if one looks at the spirit and intent of the Magna Carta Libertatum (Medieval Latin for “Great Charter of Freedoms”), commonly called the Magna Carta that found its way in history in 1215. The 63 clauses of the Magna Carta deal mostly with regulating feudal customs, taxes, towns and trade, the extent and regulation of the royal forest, debt, the Church, the restoration of peace and the operation of the justice system. Of enduring importance for this paper is Clause 39, which reads as follows: “No free man shall be seized, imprisoned, dispossessed, outlawed, exiled or ruined in any way, nor in any way proceeded against, except by the lawful judgment of his peers and the law of the land.”

In this paper, I will expound on this jurisprudential question with the aide from my researched concept ‘Social Justice: Constitutional Oath, Rule of Law and Judicial Review[1]Malaysian Chapter’ and my concept commonly known as ‘University cum Court Annexed Arbitration’, as well as my methodology to create a tsunami of arbitrators known as ‘JANAB’s Arbitration Moot Court And Award Writing’(3).

This paper is aimed to advocate that criminal cases in commonwealth countries and related countries where the triers of facts and law are judges and the corruption ranking is high, the law must empower the universities academia, alumni etc including the government pensioners to substitute the role of judges as trier of facts. The law must also provide a hybrid methodology based on arbitration as well as jury system in selecting the jurors from the ‘jury pool’ primarily to achieve the spirit and intent of Magna Carta(4).

In my previous papers, I have proposed to enforce University cum Court Annexed Arbitration for civil and commercial matters by providing affordable arbitration option for matters filed in court. For criminal trials, I am proposing to engage and empower academia, alumni, government pensioners etc to sit as jurors.

(3) See www.janablegal.com; https://adrarbitrationchambers.com/
(4) see The Abolishment of Jury System in Malaysia – ALSA Malaysia; Are Jury Trials the Solution to Corruption in Armenian Courts? – Susannah Marshall

I will also invite global jurists to discuss and debate this paper to achieve a consensus to anchor an international convention like that of New York Convention 1958 by the relevant bodies of UN. The proposed convention may assist to check corruption, corrupt practices, abuse of power etc; and may stand as an international instrument to promote Social Justice(5).

(5) Such a mode will also assist countries to promote UN Conventions such as the UN Convention Against Corruption and the UN Convention against Transnational Organized Crime

SOCIAL JUSTICE AND MAGNA CARTA

Social Justice is a concept not alien to many religions as well as non-religion based publicly accepted communities. Social Justice is robust in countries where the public is literate and has faith in their Legislature, Executive and Judiciary and the constitutional framework supports fundamental liberty with ample protection for the minority, poor, needy, oppressed. I witnessed the functioning of Social Justice and Rule of Law in England some four decades ago whilst pursuing my law degree.

It must be emphasised here that Social Justice is a generic jurisprudence related to the Oath of Office of Legislature, Executive and the Judiciary. After years of Magna Carta the British public in the last few centuries and not withstanding there was no written constitution in England, have shown faith in their Legislature, Executive and Judiciary. This faith in many countries in the commonwealth have eroded badly after independence from British Rule. This will be evident from the corruption ranking reports from relevant International Organisation.

MERIT, ETHICS AND SOCIAL JUSTICE

England as to date has an exemplary judiciary of meritocracy and ethics that provides for social justice to flourish within the framework of Rule of Law. Their members of the judiciary are holders of qualifications from universities of global repute or professional bodies and specially selected from Senior Barristers who have proven track record in the practice of law. I can safely say that the English Judiciary or agencies related to rule of law does not consist of single degree holders with menial qualification and posted as decorative administrators of rule of law.

These administrators in jurisdiction where the corruption ranking is high, also carry the stigma of lacking in the strength in the knowledge of rule of law. Bringing back jury trial in these countries will increase public perception in the administration of justice as trying of facts will not be in the hands of judiciary. In my view, countries infested with such administrators is likely to be high in the corruption index ranking as well as governed largely by Rule by Law with no prospect of Social Justice to flourish(6).

(6) It cannot be ruled out that some single degree holders of local universities may have a good understanding of rule of law. I take the view that rule of law to flourish the stakeholders of justice must ensure that the administrators of rule of law has also qualification from some respected common law jurisdiction like England, Australia, New Zealand, Singapore or even countries like USA or Canada etc. These countries generally do not churn out law practitioners without proper professional scrutiny to be admitted to the Bar.

MAGNA CARTA, SOCIAL JUSTICE AND JURY TRIAL

In my view, the English Legal System established after Magna Carta is anchored on principles related to Social Justice. This concept is embodied in their jurisprudence related to rule of law and administration of justice. Magna Carta also attempted to remove the clutch of Rule by Law and abuse of Sovereign Rule through the Majesty’s Judges and Sovereign Subordinates on the public in particular the Free Man of those days.

The Magna Carta in spirit and intent guaranteed that dispute of facts will be dealt by the relevant peers of the aggrieved be it civil or criminal and the law remained largely within the domain of Judges as well as Sovereign Fiat. Hence, the importance of Jury Trial plays a significant role in protecting the public from the unjust sovereign abuse directly or indirectly. The Magna Carta in its subsequent development was instrumental for giving a framework for the establishment of an independent and impartial democratic process and formula for the selection of the legislature, executive and the judiciary not only in England but to some extent in the United States of America and many other countries.

The Magna Carta has been described by Lord Denning as “the greatest constitutional document of all times — the foundation 8 of the freedom of the individual against the arbitrary authority of the despot”.

ACCOUNTABILITY, TRANSPARENCY AND GOOD GOVERNANCE

Magna Carta also paved way for the British Parliament as well as its agencies within and outside the country to govern and rule, subscribing to principles of accountability, transparency and good governance inclusive of justice and fairness which are anchor pillars of Social Justice(7).

(7) see Fall of East India Company by Mark Cartwright-published on 26 October 2020.

MAGNA CARTA AND COMPROMISE OF OATH OF OFFICE

Over the years, many countries in the commonwealth in breach of the oath of office of Legislature, Executive and the Judiciary have compromised the fundamental guarantees advocated in Magna Carta, which is to govern the country as per Rule of Law. Instead, they succumbed to rule the country in many important aspects by Rule by Law which was an archaic formula of sovereignty which the Magna Carta had attempted to diffuse. One such important area is related to trial of facts by peers. This area of trial by jury was dispelled on grounds of costs, expediency, compatibility and many more. This compromise which directly gave absolute judicial control with the fiat of legislature in trying of facts as opposed to law only to the judicial arm of the government has in my view eroded the confidence in the judiciary as well as efficiency of judicial process in many commonwealth countries. This in my view, has paved the way for executive interference in the administration of justice.

This phenomenon is robust and constitutes a vibrant perception in countries where the corruption ranking is high. In almost all these countries the backlog of cases be it civil or criminal has increased in significant proportion. Arguably when it relates to fundamental rights of the people, these countries lean towards being governed by Rule by Law as opposed to Rule of Law as was envisaged by the Magna Carta and its development of the Constitutional Framework in England.

BACKLOG AND CORRUPTION

The underlying reason for this backlog as well as the perception of corruption and abuse of power, in my view is primarily due to the breach of the intent and spirit of the Magna Carta by the government of the day – entrusting the trying of facts to the judiciary as opposed to engaging the selected public to sit as trier of facts. Further, the jury system in its original form was operative in many places as far as possible where the public can have access as opposed to being confined to a limited court room space. Thus, the Jury System did not require a court room or building and was open to the public in any suitable place. This process also assisted the public to appreciate the functioning of the Rule of Law, Administration of Justice and check any abuse of Rule by Law. Suffice to say that the English Man of those years were aware of the common law of England and the need for impartial, expedient and cost-effective administration of justice with the public right to participate in the administration of justice through the Jury System to guarantee Social Justice within the framework of Rule of Law and Administration of Justice and also the spirit and intent of Magna Carta.

CONTEMPT AND ABUSE OF JUDICIAL POWER

Any comment or criticism of the public or jurists on judicial compromise of rule of law is often met by the courts by invoking contempt powers against the media, article or book writers, or general public or even going against whistle-blowers and judicial officers within or outside the judiciary by the judiciary itself. There is now a trend in commonwealth countries where the judiciary itself has started lodging police complaints, or issuing suspension orders or even removal of judge or judges who have stood for the independence and impartiality of the judiciary as well as administration of justice. It must be emphasised that silencing constructive criticism by way of misconduct in the administration of justice is indeed abuse of judicial power and naturally will erode not only public but also global confidence in the country’s administration of justice as well increase corruption index(8).

(8) see The Indian Judiciary on Trial:Tackling Corruption in India’s Courts – Nayana Renukumar; Liuthania’s Judicial Scandal Shows Why Public Communication Matters in Corruption Investigations – Ruta Mazauskaite

FREE SPACE OR AT NOMINAL COSTS

The jury system in its origin was operative in many places as possible where public can have access as opposed to the court room space alone. Thus, the Jury System did not require a court room or building and was open to the public in any suitable place and in the modern times can be held in the unused space of the day in the Universities and other institutions of this nature at nominal costs.

JURY SYSTEM AND BACKLOG

The flexibility of jury system to recruit as many triers of facts for the jury pool as well as get it heard in public places and institutions of learning can be a formula for clearing backlog of cases. The current Jury pool can come from universities academia, their alumni or retired government servants etc; and there will be many subject matter experts to ensure the rule of law and administration of justice is not compromised. It will also enhance the role of the arbitration stakeholders.

REMEDY AND RELIEF FOR MAGNA CARTA BREACH

To remedy the Magna Carta breach, I have over the years as an author of law books, judge, jurist anchored three original concepts and or methodology within the framework of social justice to give an effective and workable solution for access to justice at affordable costs as well as to reduce the backlog in civil and commercial cases which does not have an arbitration clause. It is primarily aimed to remind the Legislature, Executive and Judiciary on the Constitutional requirement to act as per Oath of Office. It was also aimed to remove the trying of facts by judges in breach of Magna Carta guarantee and for that role to be done by selected subject matter expert of the public through the party autonomy concept to try the dispute. This mode now is popularly known as arbitration and is welcomed by international jurists as the most appropriate forum for dispute resolution as evidence by New York Convention 1958 as well as UNCITRAL Model Law 1985.

BOOM FOR ARBITRAL INSTITUTION

Arbitration institutions around the world are only attending to less than a fraction of one percent of civil and commercial disputes inclusive of quantum when contrasted with disputes in 14 courts. If my concept is implemented in any country, the increase in work for Arbitral Institutions to administer or facilitate or train arbitrators as well as arbitration counsel will be in leaps and bounds not in arithmetical but geometrical proportion. This can only be achieved if Arbitral Institutions are prepared to recognise the Social Justice needs and provide the mechanism for affordable arbitration at least for the subordinate court matters based on my concept as well as its Costs Rules.

There will be added boom for Arbitral Institution to facilitate jury pool and administration if my concept and suggestion for criminal trial is put in place in any country or by the auspices of UN by a Convention.

BACKLOG, LITIGATION STRESS AND MEDICAL CARE COSTS FOR GOVERNMENT

My concepts and/or methodology has the support of jurist’s approval for civil and commercial matters. Just two months back it was tested at an Arbitration Theory and Award Writing forum organised by the support of Syariah Judicial Department of Malaysia. It was found to be successful to create a tsunami of arbitrators having subject matter expertise to clear backlog 15 of civil and commercial cases filed in court. The concept with a one-day training program for Arbitration Theory and Award writing referred to as ‘JANAB’s Arbitration Moot Court And Award Writing’ can be provided by me and my team with no costs or fees for training, subject only to the essential costs of running such a program voluntarily by Institutions of Learning.

As trained arbitrators with subject matter expertise, they will be able to adjudicate on matters within their specialized area of practice and training, thus enabling subject matter expertise in the arbitration to be conducted with ease. Their participation will help to reduce the costs of arbitration and pave the way for the setting up pro bono arbitrators as well as reasonable fees for arbitrators. It will also reduce medical care costs for the Government on litigants, their families, lawyers & judges etc. suffering from litigation stress. The concept by its natural progression will reduce at least fifty per cent costs on government spending on courts related to civil and commercial matters.

These trained arbitrators can also be placed in a ‘Jury Pool’ in the event any country intends to introduce jury trials for transparent and cost-effective administration of criminal justice in countries where the corruption ranking is high.

THOUSANDS OF ARBITRATORS CAN BE TRAINED IN ONE DAY PROGRAM

The tested methodology currently has the immediate prospect of training one or two thousand subject matter experts in a one[1]day program to sit as affordable arbitrators, subject to reading the specially prepared material for this purpose as well as strictly following my guidelines for the program. To put it mildly, all lawyers in Malaysia consisting of 25,000 lawyers including the academia and alumni, pensioners etc or more can be trained in a one-day program within a month to sit as affordable arbitrators to assist to clear backlog for a start at least in the subordinate courts.

INDIA AND COUNTRIES WITH BACKLOG OF CASES

For countries such as India which is said to have ‘backlog of thirty years’, the implementation of the concept as well as the training methodology will create a tsunami of arbitrators 17 having subject matter expertise to clear the backlog within a period not exceeding five years. The lawyers in India as well as academia, Alumni and Pensioners can be trained within a year. I will be pleased to assist any country on a voluntary basis to clear the backlog of their cases if their respective Chief Justice commissions me to do so and provide the support system and facilities.

UN AND ‘UNIVERSITY CUM COURT AND JURY MODE CRIMINAL TRIALS’

The trained arbitrators under my concept and methodology can also act as ‘Jury Pool’ if countries decide to introduce a hybrid jury system to improve the corruption ranking and arrest Magna Carta breaches by the Legislature, Executive and Judiciary. In this respect it will be a prudent measure if Countries and Jurists formulate a convention like the New York Convention 1958 through the auspices of United Nations’ relevant bodies to provide for hybrid jury trial for criminal matters encompassing partly arbitration methodology.

JURY TRIAL AND NEXUS TO CORRUPTION INDEX(9)

There is now visible evidence to suggest that those countries which do not subscribe to Jury Trial have higher perception of judicial corruption. Susannah Marshall in her paper ‘Are Jury Trials the Solution to Corruption in Armenian Courts? asserts that “Judicial corruption should be a priority for anticorruption efforts in nearly every country, since so much anticorruption work relies on the judiciary. Yet many countries struggle to address judicial corruption”.

In considering the Armenian position, she makes a valid observation to say “Some advocates, including the American Bar Association, have proposed that one solution to judicial corruption in Armenia is to introduce jury trials. In fact, the first post-Soviet Armenian constitution explicitly allowed jury trials, though in the end no jury trials were ever held due to the absence of implementing legislation and lack of political will. When the constitution was amended in 2005, the language allowing jury trials was removed. Nonetheless, there has been some recent public debate in Armenia about whether introducing jury trials would be a good idea.”

There is no shortage of articles related to various countries on this subject and most of these countries had abolished jury trial. For example, Jury Trial was abolished in Malaysia on 1st January 1995. After this period, there were many controversial decisions often placing the whole mechanism of administration of justice into disrepute. Based on media reports, the perception of abuse of power to silent critics as well as purported persecution against politician had increased which arguably had destabilised the country as well as the unity of political parties and public. It had in a way led to short term governments as well as party hopping for monetary benefits including purported fear of persecution. At least two past Attorney Generals of Malaysia have called for Jury Trial to be revived.

The political disunity in Malaysia in the last few years is unprecedented and to what extent this disharmony will continue is anyone’s guess. In my view, this disharmony would not have arisen if the jury system as triers of facts was in place. Simply for two reasons. A conviction by jury against a politician say for murder, rape, sodomy, sedition, money 20 laundering, abuse of power etc will be universally accepted as a fair decision.

In Malaysia, a conviction by jury has been widely respected in contrast to decision by the judicial adjudicators at various stages. An acquittal by jury in Malaysia has been respectfully accepted but this sentiment is not uniform when it relates to decision by judicial adjudicators. All these goes to show that the jury system is an investment for the nation for it to be administered with integrity and fairness. My proposal here to empower university academia etc will be cost effective to any country based on my principle ‘Minimum cost with Maximum Benefit To Economy And Social Justice.

(9) see Jury Trial – Wikipedia [http://en.wikipedia.org/wiki/Jury_trial]; Jury Trial In Singapore and Malaysia: The Unmaking Of A Legal Institution – [Malaya Law Review [1983] 50 Mal. L.R.]; The Comparison Of Trial With Jury And Trial Without Jury In Malaysian Legal System (Part I) – [http://legalpedia.wordpress. Com/2009/02/01]; The System Of Trial By Jury – A Retrospect And An Analysis – [The Malayan Law Journal [Vol. V] June 1936]; The Introduction And Development Of Trial By Jury In Malaysia And Singapore – [Malaya Law Review Vol. 8 No. 2 Pg 270].

PROS AND CONS JURY SYSTEM

Trial by Peer traditionally means a group of lay persons and not necessarily literate. It also does not discriminate a pool of juries who are literate and having subject matter expertise. The jurors are selected randomly regardless of their race, religion and sex.

The modern version of trial by jury in criminal cases is essentially related to finding of facts by the jurors, whether a person is guilty of an offence charged or not. The jurors are not 21 required to state their grounds orally or in writing. Thus, the decision will be expeditious as well as transparent.

The jury are not required to decide any issue relating to law, rules of evidence, proprietary of a charge, etc., which is normally done if the matter is tried before a judge. The judge has to deal with issues relating to law and give proper directions to the jurors in the manner they have to deal with the facts and evidence. If the directions are flawed the apex court may quash the verdict, and acquit and discharge the accused or order a fresh trial.

It is often said and proven by statistics in the modern version of jury trial, the chances of acquittal are greater for various reasons. And, in consequence, many countries have opted to either reduce jury trial to limited cases only, or have abolished jury trial as a whole. The general criticism to abolish jury trials or minimise its scope was indeed trivial in nature in contrast to their role to uphold the rule of law and provide integrity to the administration of justice. Bias complaint against the attitude of jury was one and the other was that they may not be sufficiently literate to understand the proceedings and may be influenced by other juror or jurors. There are few more and is not necessary 22 to be set out here. All the complaints related to shortcoming of the jury could have been remedied by statutory formula. For example, selecting the jurors from academia etc.by the participation of interested stakeholders as well as public interest bodies related to rule of law.

CONCLUSION AND PROPOSAL FOR ‘UNIVERSITY CUM COURT AND JURY MODE CRIMINAL TRIALS’

In my view, to avoid travesty of justice, the trier of facts in any country must go back to the selected peers to provide integrity to the administration of justice. In cases related to civil and commercial matters filed in court, the state must facilitate affordable arbitration scheme and encourage litigant for a start to opt for arbitration if the matter cannot be settled by default judgement, summary judgement, etc inclusive of mediation. University cum Court Annexed Arbitration Model as well as the fees scale should be studied by all institutions who are facilitating ADR service.

For Criminal cases, an arbitration methodology to select a juror pool like that of list of arbitrators for civil and commercial as practised by institutions which provide ADR Service is an option. My methodology to train a tsunami of arbitrators can be 23 modified to train a tsunami of jurors for jury pool in a professional and no cost manner in the event any country will like to reintroduce the jury system. The jury system will provide integrity in the administration of justice as well as eliminate executive interference in the administration of justice. It will also stop the judiciary itself from abusing its powers by using contempt proceedings as well as other process to silent critics or writing judgements in civil and criminal matters which are not inspiring within the established principles of rule of law.

For my proposal ‘University cum Court and Jury Mode Criminal Trials’ to be implemented smoothly, the international community relating to the rule of law and corruption watch association must move the UN Agencies to anchor my proposal which is within the Magna Carta framework. If there is a will, there are many ways to uphold Social Justice. Will the international community walk the talk to check abuse of power and corruption by introducing as ‘University cum Court and Jury Mode Criminal Trials’ – the Jury System by way of Convention obligation?(10).

10 The writer acknowledges the views and/or editorial support of the Affordable Arbitration and ADR Chambers PLT team (https://adrarbitrationchambers.com/promoters-messages/)