Jury trials worth a try in RI courts

Jury trials worth a try in RI courts

By Mark Cammack

LOS ANGELES, California (JP): President Abdurrahman Wahid has
recently stressed the vital importance of restoring public
confidence in the administration of justice in Indonesia. One way
to seek to further that objective is to give the public --
ordinary Indonesians -- a role in the judicial process.

Every legal system faces the challenge of ensuring the
integrity of its judiciary. Judges everywhere are subject to
pressures and temptations to depart from the requirements of the
law and decide the cases before them based on fear or favor.

Legal systems use various methods to seek to guarantee the
independence of judges. Selection procedures designed to ensure
that only honest and qualified men and women are chosen to serve
as judges, adequate salaries for judges that reduce the
temptation or need to resort to illicit payments, professional
training, systems of bureaucratic oversight and appellate review
and a culture of professionalism are all important means for
guaranteeing integrity in the administration of the law.

Another technique that is widely used to check corruption,
particularly in the administration of criminal law, is to permit
lay people to share in the responsibility of judging.

Professional judges are susceptible to corruption in part
because they are state officials. As state officials, judges are
dependent on other state officials for promotions, salary
increases, desirable assignments and a variety of other benefits.

Because of the power the state has over judges, there is an
unavoidable temptation to use that influence to entreat or
pressure judges to decide cases in favor of the state.

Another factor that can threaten the independence and
neutrality of judges is the fact that judges often develop
ongoing relationships with prosecutors.

As judges and prosecutors know each other and develop common
outlooks on the issues they face, judges become inclined to
decide the case in line with prosecutors' views.

Finally, the susceptibility of judges to corruption is partly
a result of the fact that they are more easily targeted for
corruption because they occupy a permanent role in the legal
system. It is more difficult to exercise systematic control over
the decision-making process if the group of decision makers is
constantly changing.

Granting lay people a role in the decision-making process can
help prevent these problems. Because they are not state
officials, lay decision makers are not susceptible to the
pressures that can corrupt judges.

In addition, a constantly changing group of citizen judges is
difficult for anyone to control. Finally, including ordinary
citizens in the decision-making process exposes the process to
public scrutiny.

Rendering judicial decision making more visible to the public
by including members of the public in the process can inhibit
judges from making decisions based on improper grounds.

The right to trial by jury guaranteed in the U.S. Constitution
is specifically directed toward the problem of judicial
corruption.

In the leading decision on the right to a jury trial in a
criminal case, the U.S. Supreme Court stated that those who wrote
the U.S. Constitution recognized the necessity of protecting
against the use of false criminal charges to eliminate enemies,
and against judges too responsive to the voice of higher
authority.

"The framers of the constitution," the court wrote, "strove to
create an independent judiciary, but insisted upon further
protection against arbitrary action. Providing an accused with
the right to be tried by a jury of his peers gave him an
inestimable safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased or eccentric judge."

The Anglo-American jury represents one method for providing
popular participation in the enforcement of the law. The jury, as
it developed in England and then spread to the U.S. and other
common law countries, consists of 12 ordinary citizens who are
called to serve as jurors for a short time -- typically one or
two weeks -- and then return to their lives as businesspeople,
teachers, factory workers or farmers.

The distinctive feature of the jury trial as it is practiced
in the common law world is the fact that the jury is given full
responsibility for the decision of the case. The judge who
presides over the trial instructs the jury on the legal rules
that are applicable to their decision. But then the jury decides
the guilt or innocence of the accused, outside the presence of
the judge and without judicial intervention.

The so-called "mixed bench" of lay and professional judges
that is commonly used in Europe is the other most common model
for including ordinary citizens in judicial decision making. The
size and composition of these mixed bench courts vary.

The size of the courts can be as small as three or as large as
nine or more. Sometimes, the courts have a majority of
professional judges, for example, three professional and two lay
judges. And sometimes the lay judges are a majority. The
characteristic feature of mixed bench courts is that both lay and
professional judges work together to decide the case. The
decision, then, is the collective judgment of both the
professional and lay judges.

Recently, interest in including lay people in the
administration of justice has increased. Russia and Spain have
adopted a form of trial by jury. Japan has been studying the
issue. Argentina, a country that has faced problems of judicial
corruption similar to those in Indonesia, has inaugurated an
experimental program using mixed bench courts in one state for
some kinds of cases.

Every legal system is adapted to the social, political and
cultural circumstances of the country where it exists. But every
legal system includes elements that have been borrowed from other
systems and then modified to suit local needs and circumstances.

There is no assurance that the use of lay judges in criminal
trials would improve the integrity of the system of justice in
Indonesia. Nor should a system of lay judges be relied upon as
the only mechanism for ensuring judicial integrity.

All legal systems must simultaneously employ a range of
strategies to accomplish that goal. Furthermore, before any
system of lay judges could be implemented in Indonesia, a number
of complex questions would have to be carefully studied,
including the form that lay participation would take and the
qualifications and selection methods for lay participants.

Finally, any effort to implement lay participation in the
criminal justice system generally should be preceded by a smaller
experimental program to ensure that it is workable.

Public participation in the administration of the law will not
magically solve the problems of Indonesia's legal system. But it
might be worth a try.

The writer is a professor of law at Southwestern Law School,
Los Angeles, California in the United States, specializing in
comparative law.