This is a matter that warrants a public debate because the public is concerned, the public is itself… the jury! This is also one of those topics that need calm reflection, far from the agitated reactions usually seen in the aftermath of a verdict which, in public opinion, smells the absurdity and incoherence that emanates from the finding of a system resting on an outdated tradition: a system which political insouciance has allowed to fall into tragic routine and culpable slumber.
The public should have a say in whether the system should be kept or be scrapped. These extreme positions are invoked as no amount of amendments and reforms will bring a drastic change that would respond to the public outcry as seen whenever some high profile cases’ outcomes have appeared to be a mockery, not to say a miscarriage of justice.
We are referring here specially to verdicts which have been tragic and revolting, not only to the victim’s relatives, but at least, for those with a conscience or for those who followed the trial as reported in the press, and who end up cursing the proceedings and the lawyers’ conduct of the case.
We all have the duty of memory, and we need to remember without much effort of what happened in the Michaela Harte’s case. The acquittal of the accused in this murder case triggered the questioning of the jury system, and public opinion surfed on a semblance of interest as regards the effectiveness of such a system in ensuring that justice is delivered effectively. Thereafter, the matter was set to rest, as most matters that shake public opinion: for a day or two, the media tried to keep the flame alive, but soon it faded.
Deep inside the hearts of the victim’s relatives, the pain will always remain. And the jury system will keep on producing its lot of controversies, as everywhere else where it has been adopted. Tons of pages have been written criticising all the dimensions of the system, specially those relating to the verdicts, guilty or not guilty, it delivered. There are universal reasons for abolishing the system. The literature supporting this view, whether in form of books, scholarly articles or press reports have abundantly demonstrated how ordinary individuals can be influenced in their decisions, or how lawyers may act to influence such decisions.
Justification for its abandonment is universal, with structural reasons applicable in most circumstances. But in Mauritius, some specific conditions also prevail, and these must be weighed in the argument for dropping a system conceived for a different context imposed on our justice system more than two centuries ago.
Civil Society consultations
A review of the jury system can only be effective if backed by empirical research. And this involves not only seeking the views of the legal profession, but necessitates consulting a wide range of stakeholders in the civil society. This is based on the principle that guided the birth of the jury system in the first place: the refusal to allow justice to be the property, so to say, of the elitist legal pundits.
Hence the need to consult people who can tell their legislators what they think of a system that allows a man’s life to get decided by a group of men and women capable of being swayed by emotions, dramatic gestures, gimmicks, illusions of fake videos and news, manoeuvres that can change acid into water, erase recordings and tamper with evidence.
In Mauritius, when the number of jurors convened is insufficient, the clerk of the court can pick a bystander or a passer-by on Pope Hennessy street to join in. This gives us an idea of what capacity assessment is undertaken to test the ability of the juror as regards his or her capacity for reasoned appreciation of facts and balancing evidence, whilst remaining uninfluenced by the gesticulations of lawyers.
In Mauritius, the demography makes it that everybody knows everybody, we are not in a country of 10 or more millions. Population size makes a difference when it comes to the effectiveness of the jury system. Imagine a jury system in Rodrigues…
In Mauritius, ethnicity/communalism, stigmatisation and lawyers who are also politicians. The system has its own specifics, and… is not immune from undue influence!