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.