Monday, November 22, 2010
A Jury of One
By Feisal Naqvi
Every night on my TV screen, Alan Shore stands up in defense of a quixotic quest. Sometimes he defends the clearly guilty; sometimes he protects the innocent. But in each episode full of courtroom magic, he bends the jury to his will.
As a lawyer working in Pakistan, I have no shortage of interesting cases. But it is difficult for me to re-enact my Lahori version of Boston Legal because we have no jury trials in Pakistan.
Interestingly, the case which led to the end of jury trials in the sub-continent was certainly worthy of a Boston Legal episode, if not several.
In 1959, Kawas Nanavati, a commander in the Indian Navy, was stationed at Bombay. Married to an English beauty by the name of Sylvie, and universally described as handsome, the 34-year-old mariner seemed to have it all. Unfortunately for him, his wife was sleeping with his best friend, Prem Ahuja.
On April 27, 1959, Nanavati confronted his wife and learnt of her adultery. Pausing only to sign out a revolver from the Navy’s storeroom, Nanavati then dashed off to Ahuja’s house where his friend was lolling around in a towel. Nanavati asked him if he would marry Sylvie and take care of the children. Ahuja’s somewhat undiplomatic response was blunt: “Will I marry every woman I sleep with?”
What happened next is unclear. Nanavati claimed that after Ahuja spotted the revolver, he and Ahuja struggled and that he shot Ahuja during that struggle. In self-defence. Three times.
The Bombay police did not agree with Nanavati’s interpretation of the facts and promptly charged him with murder. The trial became a cause celebre in India. The Parsi community to which Nanavati belonged was outraged, organising rallies and petitions in his favour. Newspapers gave saturation coverage to the case, and later the trial. When Nanavati left the court room after testifying, he was showered with hundred rupee notes smeared with lipstick. Like many teen idols after him, he received marriage proposals by the handful, as India concluded that he was too good for his wife even as a penitent Sylvie, dressed in a white nylon sari, testified in favour of her husband. Bombay’s merchant community also jumped in on the act, selling miniature Nanavati revolvers and Ahuja towels.
The prosecution, of course, never had a chance. Their biggest talking point was that if Nanavati had indeed struggled with Ahuja, Ahuja’s towel would have come off instead of staying on. The fact that Nanavati had first dropped his family off at cinema before signing out a revolver under false pretences also seemed to indicate that he had been in control of his emotions and that the “heat of the moment” story was not true.
None of this mattered to the jury which returned a not-guilty verdict. Considering the judgment to be perverse, the trial court judge referred the matter to the Bombay High Court which ultimately found Nanavati guilty and sentenced him to life imprisonment. Shortly thereafter, the Indian government abolished all jury trials on the grounds that jury verdicts were overly susceptible to media pressures.[i]
The abolition of jury trials would appear to be a disproportionate response to one trial. But jury trial was never universally available in the sub-continent and its abolition only affected a very small minority of cases.
As is known, the British presence in the Indian sub-continent began in the 16th and 17th centuries through the establishment of “factories” located at Bombay, Calcutta and Madras (later known as the Presidency Towns). The less known fact is that the courts of East India Company applied the laws of England to all areas within their jurisdiction. This included the right to trial by jury.[ii]
As the empire of East India Company expanded, the British found it impractical to govern large tracts of India as if they were parts of Little England. A legal distinction thus developed between the laws applicable to the Presidency Towns and the rest of the areas under Company control (known as the mofussil), which distinction continued even after the British Crown took over the reins of power from the East India Company in 1857.[iii] Under the Criminal Procedure Code of 1861, jury trial could be made available in such districts and for such offences as the local government saw fit. In practice, this right remained limited to the Presidency Towns, albeit with one prominent exception: “European-born British subjects” were entitled as of right to trial by jury (and that too, with a majority of European jurors). [iv]
From time to time, the British did experiment with extending jury trials to the mofussil but the experience was normally considered unsatisfactory. One 19th century English official described the experience of jury trials in his area as follows:
There is a story that on the occasion of the first trial by jury in the Patna district, the Judge, who was somewhat proud of his fluency in the vernacular, made a long and elaborate charge to the jury of seven members, pointing out that the decision rested with them, and that it was only his business to explain the law,ending up with the usual form, "And now, gentlemen of the jury, what is your verdict?" The seven jurymen all stood up, put their hands palm to palm, the attitude of respect assumed by natives in the presence of a superior, and replied with one voice, "Jaise huzoor ke rai," which, being translated, means, "Whatever your highness thinks right." Somewhat discouraging.[v]
A century or so later, the official view of jury trials was still considerably mixed. The areas in which jury trials were available remained very limited and jury verdicts remained subject to a host of restrictions (or safeguards) unheard of in relation to their Western counterparts. In the words of A.G.P. Pullan writing in 1946:
The history of this experiment already lasting for over a century is not encouraging. The seed has been sown and resown, and watered and tended with care and perseverance, but the root has not struck deep in the heart of the peoples of India. . . . [I]t is open to question whether any purely Indian administration, such as is contemplated at the present time, will find any place for the jury system.[vi]
Pullan’s fears were prescient for as already noted, both India and Pakistan abolished the right to trial by jury barely a decade after gaining independence. My question today is to ask whether the time has come to reconsider that decision. The British denied most of their Indian subjects the right to trial by jury because they deemed us unfit for that privilege. Sixty years after gaining independence, why do we remain bound by that judgment?
The right to trial by jury enjoys a long and celebrated history in the West, particularly in England. The Athenians recognised a form of trial by jury, as did the Romans. In England, the code of Aethelred the Unready enacted at Wapentake in 997 AD required the 12 leading nobles of each district to investigate crimes. And in 1215, the Magna Carta recorded that henceforth no free man was to be “captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor [proceeded against] by force or . . . by arms, but by the lawful judgment of his peers.”
In 1670, the right of the jury to be free of judicial interference was firmly established during the trial of William Penn. Accused of violating the Conventicle Act (which forbade religious assemblies of more than five people), Penn and his co-accused were declared innocent by a jury even though the judge had directed them to convict Penn. When invited to reconsider their verdict, the jury not only refused but stuck to their guns when fined and sent to prison by the judge (for contempt). The jurors then challenged their detention, and, in what is now known as Bushel’s case, Sir John Vaughn struck down their imprisonment, holding that no judge could direct a jury to reach a particular verdict.[vii]
A century later, trial by jury was firmly cemented in the judicial pantheon as an irreplaceable bulwark against tyranny. Blackstone described jury trial as “the glory of the English law” and the founding fathers of the American Revolution were equally enamoured of the institution. Jefferson wrote that he considered “trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” As originally drafted, the U.S. Constitution contained no guarantee of jury trial. But when the Constitution was amended to add the Bill of Rights in 1789, the Sixth Amendment proclaimed unambiguously that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
Two hundred or so years later, the right to a jury trial reigns sacrosanct in the United States (though it has been greatly curtailed in the United Kingdom). In addition, the expansion in the interim of the British Empire (along with the more recent advent of the American imperium) has carried the concept of jury trials across the world. According to one 2008 survey, 55 countries have some form of jury trial, including states as geographically and historically diverse as Mexico, Kazakhastan and South Korea.[viii] But till date, India and Pakistan remain constant in their opposition.
There are a variety of reasons given by opponents of jury trial to justify their opposition. Juries are supposedly ignorant and emotional. A Pakistani judge once referred to trial by jury as “amateur justice,” [ix] compared (one presumes) to the more professional justice available from judges. The standard response – at least in the context of India – has been that India is too diverse a country[x] and that Indians themselves (probably with good reason) did not regard juries as either impartial or incorruptible.[xi] The natives, in other words, are not to be trusted.
The mistrust of the common man is not entirely without basis. It is a judicially recognised fact in both India and Pakistan that our witnesses tend to lie. In England and the United States, the testimony of a witness who has been caught lying in one respect tends to be disregarded in all respects on the basis of the maxim, falsus in uno, falsus in omnibus (false in one thing, false in everything). In other words, the testimony of a witness who claims to have seen a murder while in town on business will be disregarded if it can be shown that, contrary to his evidence, the witness was in town for an assignation with his mistress. That maxim, however, has been rejected by sub-continental judges who instead tend to “sift the wheat from the chaff.” The philandering, lying witness may thus serve as the basis for conviction if a judge decides that the rest of his testimony is believable.
One way to respond to the jury sceptics is on the basis of facts. Can one really argue, for example, that the average 21st century Pakistani is any more ignorant or emotional or fallible than the average 13th century English peasant? The world in which the Magna Carta was signed was, in William Manchester’s magnificent phrase, a world lit only by fire.[xii] Books were rarer than unicorns and the average person lived and died within a few miles of his birthplace without ever having learnt anything of the world outside. Today, even the poorest of the poor in Pakistan have access to mobile phones, radio and television. And those who do not have such access certainly know about and aspire to such access.
Similarly, those who point out to the diversity of people to be found in the subcontinent presume wrongly that such diversity is unique to it. The frontier regions of mid-19th century America, for example, were populated by people from all over Europe (and occasionally, much further beyond) and yet that diversity never stopped jury trials from continuing.
Professional judges have their critics too. Jefferson thought that placing judges as the arbiters of all legal questions “would place us under the despotism of an oligarchy.” On a more factual plane, every Pakistani lawyer can tell horror stories about corrupt judges. Besides, sometimes corruption is not the issue. In 2004, one of Pakistan’s finest judges struck down a law providing that children under the age of 18 could not be put to death. His judgment was based in part upon his assessment that Pakistani youngsters matured earlier than their Western counterparts because of our hot climate and spicy diet!
It is also highly debatable whether a “professional” determination of any factual dispute can be made. In 1670, when Chief Justice Vaughn held in Bushel’s case that no judge could direct a jury to convict an accused, he noted that he knew nothing to “be more common, than for two men, students, barristers, or judges, to deduce contrary and opposite conclusions out of the same case in law?” The ultimate argument for jury trial then is epistemic, the argument that our interpretation and knowledge of facts is both fallible and limited and that we have no better way of reaching a conclusion as to disputed questions than through the consensus of our peers.
Vaughn’s profound observation also serves as a rebuttal to the fact that witnesses lie in Pakistan. When a judge ‘sifts the wheat from the chaff’, he is selectively constructing a narrative as to what he believes actually happened. That selection may be right or it may be wrong, but there is nothing to show that the judge is in any way more qualified to conduct that exercise than 12 lay people. On the contrary, judicial fact-finding is even more prone to challenge. When a judge reaches a conclusion, each and every element of that conclusion must be buttressed with unassailable evidence so as to protect it from challenge. As anticipated by Vaughn, every such exercise is open to challenge and hence, appeal follows appeal. A jury, however, is not obligated to lay out its conclusions in rational terms and its conclusions are accordingly unchallengeable in all but the rarest of circumstances.
Another way to look at jury trials is to acknowledge that they present a miniature version of the dilemma regarding political authority which has so bedevilled Pakistan. Over the past 60 years, we have experimented gingerly with democracy only for power to be snatched back when our elected representatives muck things up. Our politicians are crooks, we moan. Our people are ignorant, corrupt and easily misled. If only we could find the right leaders, life would be so different. From time to time, that demand for a perfect leader reaches a crescendo. And when it does, someone in uniform usually obliges.
It is too early to tell if Pakistan’s cycle of alternating dictatorships with dysfunctional democracies has finally moved on. But if that cycle is to be permanently broken, it requires not only the occasional replacement of one group of kleptocrats with another but a more profound acceptance that the ultimate source of power is really, truly, seriously, the people of this benighted country. And I can think of no better way to get that message across—and accepted – than by reintroducing jury trials to Pakistan.
The institution of the jury is profoundly democratic because it affirms, above all, the power of the governed to decide what the law is. Every jury has the right, no matter what the law and what the facts, to refuse to convict. Every jury trial is thus homage by the state to the source of its legitimacy. More importantly, jury trial is profoundly democratising. At present, Pakistanis address their rulers only at election time. By contrast, every jury trial is a conversation between the rulers and the ruled. As de Tocqueville observantly remarked back in 1835, “the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.”[xiii]
Jury trial is especially important for Pakistan because of our deeply conflicted national identity. Pakistan was founded by a man who was not just a barrister but one of the finest lawyers of his time. It inherited very little except the governing apparatus of the colonial state and all the laws of the British Empire. At the same time, Pakistan was founded at least notionally on the idea that Muslims were constitutionally different from other citizens of the Empire and hence required their own state and their own very different laws.
This internal conflict has never been sorted out satisfactorily. Pakistan’s liberal elite wants nothing to do with religion. Pakistan’s middle-class knows it wants Islam and the Shariah but has very little clue of what to do with Islamic law. As a former part of the British Empire, Pakistan’s legal heritage was almost exclusively derived from the common law (the only exceptions being the inheritance and family laws). After the military coup of 1977, the government of General Zia ul Haq embarked on an ostensibly ambitious program of Islamisation which in practice boiled to (i) renaming some laws (the Evidence Act became the Qanun e Shahadat Order); (ii) renaming some crimes (assault became various kinds of “itlaf”); and, (iii) renaming some apparently illegal practices (interest on loans became “mark-up”). The only substantive exception to the “legislation by renaming” approach was the introduction of various laws relating to women. The testimony of women in certain matters was deemed to be half that of a man and the laws relating to rape and adultery were “Islamised,” albeit in such an incompetent fashion that rape victims, who could not identify their attackers, became liable to punishment for adultery.
The irony of Pakistan’s conflicting psyches is that neither one is authentic. The laws made by the British were self-evidently imported. But even the so-called Islamic reforms introduced by General Zia had no local antecedents. Instead, General Zia relied on Saudi clerics to do his drafting even though Saudi law is, broadly speaking, about as closely related to the bulk of Pakistani law as the laws of the Eskimos.[xiv]
Ronald Dworkin says in Law’s Empire that the law works itself pure. What he meant by that observation is that it is the job of the judges to reconcile all elements of a legal system so as to make them consistent in principle. Imagine legislation as sharp-edged rocks falling into a fast moving stream. As those rocks are carried by the water, they are worn down so that ultimately what was once in conflict becomes smoothed out. In a system run only by judges, the only active force is the judiciary. But in a jury system, the judge and the jury both have to bring together in harmony all the pieces of the legislative puzzle.
Despite my optimism, I do not doubt that a Pakistani jury system will produce any number of horrific judgments. As one of the lawyers who worked on the Mukhtaran Mai case, I am fully aware that she was condemned to be raped by something closely approximating a jury of her peers. Given the horrific problems Pakistani women already face in relation to honour killings, would trial by jury not result in an institutionalisation of prejudice?
One response to this argument is to note that jury trial in the subcontinent did not result in a complete abdication of discretion by judges to the jury. Instead, as shown ironically by the Nanavati case itself, the law provided for checks and balances so that a runaway jury could be checked. But that argument is only a partial response. The more complete response is that if prejudice is a fact of life, we are better off dealing with it openly. At the end of the day, law is a means to social ends. Yes, law can serve as a means of social transformation but it cannot operate in isolation from social norms. It is better to have gradual – but real – change than to have a utopia on paper. We have learnt now, it seems, to trust people with the vote. It is time now to also trust them with the law.
[i] Not surprisingly, the Nanavati case has served as the inspiration for more than one Bollywood remake. “Yeh Raaste Hain Pyar Ke” (1963) and “Achanak” (1973) are both thought to be based on the events of the Nanavati trial.
[iii] In some instances, the distinctions remain till today. For example, Pakistan has two different laws dealing with personal insolvency. The Insolvency (Presidency Towns) Act, 1909 applies to Karachi by virtue of the fact that Karachi was formerly part of the Bombay presidency. The rest of Pakistan is governed in terms of personal insolvency by the considerably less sophisticated Provincial Insolvency Act, 1920.
[iv] For an extended discussion of the codification of law in India, with a specific focus on the Criminal Procedure Code, see Elizabeth Kolsky, “Colonial Order, British Law: The Empire and India: Codification and the Rule of Colonial Difference: Criminal Procedure in British India”, 23 Law & Hist. Rev. 631 (2005).
[v] G. Graham, Life in the Mofussil (or the Civilian in Lower Bengal), Vol 2. (available at http://www.ebooksread.com/authors-eng/g-graham/life-in-the-mofussil-or-the-civilian-in-lower-bengal-volume-2-har/page-5-life-in-the-mofussil-or-the-civilian-in-lower-bengal-volume-2-har.shtml)
[vi] A.G.P. Pullan, “Trial by Jury in India,” Journal of Comparative Legislation and International Law, Vol. 28, p. 104-09 (1946)
[vii] (1670) 124 E.R. 1006 (also reproduced at http://www.constitution.org/trials/bushell/bushell.htm)
[viii] Ryan Y. Park, “The Globalizing Jury Trial: Lessons and Insights from Korea”, 58 Am. J. Comp. L. 525 (2010)
[x] See L. M. Singhvi “The jury system in the country, which was prevalent some decades ago, had to be abolished because it was found unsuitable for Indian conditions. [Jury systems work only in] small homogenous communities where a given number of persons of similar status and identical background can be found easily to sit on judgment on their peers. In India, with its vast diversity, it had not worked earlier and it would be unsuccessful again if reintroduced." Quoted in M.S. Thirumalai, “Language use and Jury Trial,” Language in India (Vol. 3 7 July 2003)(available at http://www.languageinindia.com/july2003/jurytrial.html)
[xi] Pullan, op. cit.
[xii] See also de Tocqueville’s observation that “when the English adopted trial by jury they were a semi-barbarous people.” Alexis de Tocqueville, Democracy in America (Vol I, Chapter XVI)
[xiii] Alexis de Tocqueville, Democracy in America (Vol I, Chapter XVI).
[xiv] For what it is worth, there is a respected body of scholarly work which believes that the common law institution of the jury trial is based upon the concept of the Lafif in Maliki law and was imported by England from Islamic Sicily. See John A. Makdisi, “The Islamic Origins of the Common Law”, 77 N.C.L. Rev. 1635 (1999). I am in no position to comment on the scholarship but my view, as a legal realist, is that the origins of the jury are irrelevant: the only question is whether adopting the practice will be beneficial or not. As it is, Muslims are rather too fond of taking credit for authoring various inventions without bothering to consider that they have long since abandoned their inventive traditions.
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