Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
9 September 2009

Do we need a jury system?

Ronald Kevin Roberts (alias Ronald Suresh Roberts) published an intriguing – if wrongheaded – opinion piece in the Sowetan yesterday. In it he argues that the jury system should be reintroduced in South Africa because a “jury is the exact opposite of the sort of illiberal clique that until recently dominated key institutions of legal culture, such as the Judicial Services Commission”.

Arguing that the 2009 election was, in effect, nothing less than a rough- and-tumble referendum on the alleged criminality of Jacob Zuma, he punts juries as “the classic and humane safety valve of democratic legal systems”.  

It has been the venerable role of juries to “nullify” the sometimes pedantic harshness of the law in the interest of the legitimacy of law within the broader society. That’s one reason why even the old whites-only jury trials disappeared in 1969, as apartheid securocrats completed their takeover of the legal system under John Vorster…

The fact that we don’t have juries, nor even discussion about the restoration of juries, is the single best sign of the triumph of illiberalism over democracy in a post-1994 legal system that is otherwise so proudly progressive. Apartheid distrusted the native voter; democracy still abhors the native juror.

Of course, only the most formalistic pedant will argue that there is no interplay between politics and law (see the article by Ronald Dworkin on the Sotomayer confirmation hearing in the Seminar Room for an elegant argument in this regard).

But I am not sure the argument by Roberts holds water (to put it mildly). To argue that the 2009 election was a kind of jury trial for Jacob Zuma in which he was acquitted is preposterous. We vote for a party, not an individual. It is therefore impossible to know whether those who voted for the ANC voted to “acquit” Zuma or despite the fact that Zuma was the ANC Presidential candidate.

In any case, a jury first hears all the evidence as presented by the state and then makes a decision on whether the state has proven its case beyond reasonable doubt. Zuma, of course, managed to evade the trial (his “day in court”) that would have allowed a presentation of the evidence. In order to avoid not only a possible conviction but also having to be judged by the voters on the basis of all the evidence gathered by the state, Zuma and the NIA made sure that he would avoid a trial. A jury also operates on consensus. All members of a jury must agree to convict or acquit a defendant. Where 35% of the jury “votes” against a defendant (as happened in the 2009 election), the defendant is not acquitted and can be retried.

But this  silly comparison aside, does Roberts not have a point? After all, our legal system lacks legitimacy and it might well be argued that re-instituting juries would help to legitimise the legal system as it would introduce a democratic element into criminal trials which would give people a better understanding of the legal process and a much stronger feeling that they have a stake in it.

I would say, decidedly not. Re-introducing juries would be a disaster. This is not – as Roberts preemptively argues – because I am “illiberal” and racist and because I distrust black people to make correct factual decisions after hearing all the evidence presented by the state.

Far from it.

I do distrust South Africans in general (black and white) – who have been battered by crime and are often paranoid and fearful of “criminals” – from listening to all the evidence with an open mind and then making a fair decision. Given the discourse on crime in our society, will jurors always acquit defendants when they should? What about the fair trial rights and the presumption of innocence? I am not sure whether all South Africans – desperately wanting to see criminals behind bars – would always want to bother too much with assuming the innocence of an accused before finding him or her guilty – especially where the accused does not have high charging lawyers to look out for his or her interests.

But there is also a flip-side to this argument. Given the fact that South Africa is a deeply divided society with deep racial fissures, those accused persons who are lucky enough to be able to afford expensive lawyers will have an even more unfair advantage. A good lawyer will be stupid not to play on the possible racism and bigotry of at least some members of the jury. Such a lawyer will attempt to sway some of either the white or black members of the jury to view the case as a racial one in order to garner sympathy for his or her client and so ultimately to prevent conviction.

Imagine a white farmer is charged with murdering a black farm worker and the jury is made up of seven township residents and two white farmers. A good lawyer will play to the possible racist fears and prejudices of the white jurors who might be eager to believe that the farmer acted in self defense. How often would the state be able to secure a conviction (convincing all nine jurors of the guilt of the accused) in such circumstances? Not all white jurors would be swayed by the lawyer’s tactics, of course, but some will.

A jury system may therefore further pervert the criminal justice system, as rich defendants with clever lawyers will often be able to escape conviction while undefended (mostly poor and black) defendants will more often than not be convicted. Juries therefore seems to me like a quick-fix that will turn in to a “no-fix”.

Of course I believe there is a great need to make our legal system more legitimate. This requires a change in the race and gender composition of the bench and a change in the race and gender composition of the advocates profession – from which judges are mostly selected. The vast majority of advocates are still white and male and this clearly hampers transformation.

But transformation for me is also about making the legal system more accessible to ordinary South Africans. It seems untenable that most South Africans do not have the money to access the legal services required to enforce their rights and the legal obligations of others towards them through the judicial system and this poses a fundamental threat to the Rule of Law.

The dramatic expansion of legal aid to civil matters would really make a big difference in this regard, but this has resource implications so is not so easy to do. Nevertheless, if access to justice is not improved the legitimacy of the legal system itself will be further eroded – with or without a jury system. Moreover, an expansion of legal aid would also provide opportunities to transform the race and gender composition of the advocates profession so it seems to me to be of the utmost importance.

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