CRIMINAL PROCEDURE CODE (AMENDMENT) BILL

Order for Second Reading read.

4.31 p.m.

The Minister for Law and National Development (Mr E. W. Barker): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Mr Speaker, Sir, the Bill that is now before the House seeks to amend the Criminal Procedure Code in so far as it relates to trial by jury in capital cases in Singapore. As a consequence of the provisions in this Bill, trial by jury in Singapore will be abolished altogether. In place of this method of trial, in every case where an accused person faces a charge, which upon conviction may result in capital punishment being imposed, he will be arraigned and tried before a Bench of three Judges of the High Court. And as Members will see in the provisions of this Bill, three High Court Judges will arrive at their decision as to the guilt or otherwise of the accused either unanimously or by majority. The Government regards this amendment to the law as necessary, in view of the experiences in the past few years in Singapore, if respect for criminal procedure and confidence in our administration of justice is to be maintained. This then is the main reason for the proposed change in the law. It is because of the unreliability of the system of trial by jury - and I am speaking, of course, in the particular context of Singapore -as I have heretofore said, proved by the results of recent cases where although ample evidence of guilt of an accused person had been adduced before the court, accused persons have been acquitted. Speaking for myself I feel that this very important aspect of the administration of justice should not be left in the hands of what are after all seven laymen but rather should be left solely in the hands of the professional Judge who would, to say the least, be able to dispense justice in a more predictable manner. Hon. Members will agree. I am sure, when I say that it cannot be disputed that professionals will be able to "do the job" better than ordinary laymen. I might add that before this contemplated change in the law was drafted, the views of the Chief Justice and several of the Puisne Judges who normally take criminal cases, as well as those of the legal profession were sought. The Chief Justice and the Judges were in agreement with the proposed amendment.

The jury system has always had its protagonists and its critics. We have inherited this system, it must be admitted, from the English Common Law and one of the main arguments for its retention is that it involves the ordinary layman with the administration of justice. Highly theoretical views that such association and involvement by the ordinary layman with the administration of justice as demonstrating an important facet of the meaning of democracy have been oft-times suggested along with several others for its retention, e.g. quotations by well-known and celebrated Judges in England. Lord Halsbury is quoted to have said, "As a rule, all juries are in my opinion more generally right than Judges", and Lord Du Parqc. "When questions of fact had to be decided, there is no tribunal to equal a jury, directed by the cold impartial Judge." Another famous quotation is by Mr Justice Humphreys, one of the greatest of English criminal Judges, who said, "The correctness of a jury's verdict has almost come to be an axiom." But for every such argument one can well find an equal argument for abolishment. I am not for one moment disagreeing with the views of the celebrated Judges in England as to their opinions on the value of the jury system but I would like merely to say that these opinions held by English Judges in the context of the social conditions of the time reflect values deeply rooted in tradition and a way of life. I need hardly add, Sir, that these concepts and values are not altogether relevant in Singapore. Social and economic conditions are very different here. The jury consists of seven not twelve persons. But even in England where the system is so deeply rooted in tradition and way of life, very forceful and deeply critical comments have been passed by eminent Judges as well as laymen advocating reform. The result is even in England today there have been amendments to the law relating to juries. Until very recently all twelve jurymen had to be unanimous in their verdict. Today in England a majority verdict would be acceptable. In this respect, it can be said that our system of jury trial had anticipated these changes in England as here in Singapore it has always been the law that the majority verdicts would suffice.

One need not be a student of legal history to know that jury trials have through the ages become less and less important a method of trial even in England, whereas two centuries ago trial by jury was fashionable not only in criminal but also in civil cases. Towards the middle of the last century, civil juries had fallen into desuetude. As a consequence, of course, when the English Common Law was introduced to this part of the world this method of trial in regard to civil matters was never introduced. We have never known of this method of trial in civil suits. If we go back further in point of time, and examine the origins of the jury, we will no doubt find that its original raison d'etre was quite different from its present purpose and use as a method of trial.

In regard to criminal matters, while it is true that there are very well-known lawyers, statesmen and eminent Judges in England who have advocated its retention, it would appear most of these arguments for its retention have, as their premise, social conditions where arguments of this kind might be appropriate. But, unfortunately, such arguments that the jury is the bastion of democracy, etc., have very little relevance in Singapore today. And it is not in a light-hearted manner that the Government has sought to bring about this change in the law. In fact, it may be regarded as a logical conclusion to the amendments introduced some nine or ten years ago. We have, in the recent past, done away with trial by jury which used to be the only method of trial in all criminal cases triable in the High Court. The change now envisaged by this Bill has become all the more desirable when one considers the changes to the system introduced in 1960 where instead of jury trials we had substituted trial by a single High Court Judge except for capital offences. Where the changes brought about have been so successfully implemented, may it not be asked, whatever the objections to these changes proposed in this Bill, why have they not been extended to cover all criminal cases irrespective of the penalties involved?

Because of the vociferous objections from certain quarters, namely from those members of the Bar who practise almost exclusively in the criminal courts, and in order that it may not be said that this Government has without due deliberation done away with a long-standing practice of the administration of the law of crime, we have, Mr Speaker, Sir, decided to send this Bill to Select Committee where such views as may be raised may be given every consideration and where the amendments to the Bill of which I have already given notice will be dealt with. For the information of Members, the amendments(Appendix, Cols. 45-8) that are to be moved are published as Supplement No. 7 dated 11th June, 1969.

Lastly, I would like to emphasise the fact that this proposed change in the law has not been conceived impulsively. Considerable thought has been given to this Bill. Our experiences in the recent past cannot be ignored and rather than allow justice to be thwarted through either ignorance or squeamishness, we must be prepared wherever necessary for the well-being of the community to amend the procedural methods of administering the law relating to offences carrying the death penalty.

Mr Speaker, Sir, I beg to move.

Question proposed.

4.47 p.m.

Mr P. Selvadurai (Bukit Panjang): Mr Speaker, Sir, only offences that carry the death penalty are subject to trial by judge and jury and this Bill seeks to amend section 178 (1) of the Criminal Procedure Code by abolishing this form of trial and substituting it with a trial by three Judges of the High Court. To state this in another way, henceforth, a human being charged with a capital offence would be convicted, if at all, not by the simple verdict of a jury, but by the reasoned judgments of three Judges.

Ever since the Bill was published, informed opinion has become inflamed and agitated by forebodings of dire consequences. An institution that had worked reasonably well for about 140 years should not be lightly tampered with. It has an aura of age; and the issue now has become one on which the principal disputants are the traditionalists supporting the jury and the rationalists questioning the rational foundation or otherwise of jury trials.

Romantic and emotional statements have been made about the nature and character of jury trials by brilliant legal luminaries in England.

Two such statements would bear quoting if only to lay bare the historical inaccuracies that they contain. About 200 years ago Lord Blackstone writing about jury trials stated:

'The liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate; not only from open attacks (which none will be so hardy as to make), but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered that delays, and little inconveniences in the form of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.'

A rudimentary knowledge of British social history would be sufficient to show that at the time he wrote, Blackstone's liberties were but the property of but a very small class of British society. Parliamentary democracy based on adult suffrage is only one generation old in Britain; and yet the palladium of liberties has become a catchphrase among some of our own legal luminaries.

Next, Lord Devlin in writing about juries was able to say:

'Each jury is a little Parliament. The jury sense is the Parliament sense. I cannot see the one dying and the other one surviving. The first object of any tyrant would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trail by jury, for no tyrant could afford to have a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.'

This can only be a piece of delightful rhetoric as the hard facts of British constitutional history would appear to militate against this assessment.

In attempting to analyse the British attitude towards jury trial, two major matters ought to be kept in mind. The first is that jury trial has for long been regarded as a bulwark against oppression; it is part of British tradition and still surrounded by sentiment and emotion. The second is that whilst there have been attempts to assess its efficacy, these are based on suppositions and not on hard facts.

Now, these assertions made in support of juries should be tested against decided cases. If all the cases cited in Wade and Phillip's Constitutional Law, in the section on the Citizen and the State are examined, it will be found that juries played an insignificant part. When a jury was used, the jury either answered questions so put that the jury could not have known in whose favour they were finding, or followed the Judge's opinion.

Those of us who take seriously the assertion that the jury is a safeguard of the liberty of the subject should read Howell's State Trials where all the political trials worth noting are recorded. Many of them are sedition trials and for every acquittal there was a conviction to balance it. In 1792 Paine was convicted for publishing the Rights of Man, while in 1793 his publisher Eaton was virtually acquitted. Daniel Holt was convicted in 1793, and completely ruined, for publishing suggestions for mild reform of the franchise and parliamentary constituencies. Further examples could be multiplied if need be. The only cure for the admiration of these juries is to read the State Trials and to ponder over the question of whether these juries were lamps that showed that freedom lived or instruments of oppression and prejudice.

An examination of the qualifications and mode of selection of jurors would throw further light on the character of British juries. A juror must be a �10 freeholder or a �20 leaseholder, or a householder in a valuation list of �30 in London and Middlesex or �20 elsewhere, or occupy a house with not less than 15 windows. This meant that jury service was largely confined to the middle and upper classes. It is only by some stretch of the imagination that a lower class prisoner could be said to be tried by "twelve representatives of his countrymen". The views and prejudices of jurors were more apt to be those of the middle classes than those of the poorer classes. In political terms it is true to say that jurors tend by and large to be supporters of the Conservative Party than the Labour Party.

Before the Juries Act, 1922, the quaint practice of striking a jury from a panel of jurors obtained. A case decided early this century illustrates how this is done.

Mr Lygon, M.P. (Conservative) brought a libel action against Mr Greenwood, M.P. (Liberal) and a newspaper owned by Mr Winfrey, M.P. (Liberal). Mr Lygon had said that he was against feeding school children out of the rates, and he was cited as being against feeding school children, the words "out of the rates" being omitted, so that a fearsome innuendo arose. A special jury was ordered to be struck. The venue was Northamptonshire, so the Sheriff of that country sent the special jury list to his London agent before whom the parties appeared and balloted for 48 names. Another appointment, a day later, was made for 'striking'. The plaintiffs' solicitor at once set off for Northampton, followed by the defendants' solicitor, to find out the politics of the panel. The result showed 35 Conservatives and 13 Liberals. The next day with unerring accuracy the plaintiff struck out 12 out of 13 Liberals, whilst the defendant said he objected to the 12 "most violent Tories". That left 23 Conservatives and one Liberal. At the Assizes the one Liberal got in on the ballot and because he was a quiet, unobtrusive Liberal, he was made foreman of the jury and he brought down the verdict from �500 to �100 by "sticking out". Had that particular panel been 36 Conservatives to 12 Liberals, the trial jury would have been all Conservatives. One is left with the question as to whether there is any need to introduce these picturesque imponderables into a mature system of administration of justice, the essential characteristics of which should be certainty and uniformity.

The predominant tendency in Britain today is to have fewer and fewer jury trials, and it is doubtful indeed that if Britain were given a chance to start anew, she would deliberately choose to have jury trials.

Finally, Mr Speaker, Sir, we must seek to discover the meaning of the assertion that in being tried by a jury, one is tried by one's peers or by one's neighbourhood. The formula goes as follows. "Was the prisoner willing to be judged by the neighbourhood? Would he put himself upon his country? If so, let him plead not guilty and take their verdict." In Britain it is still true that a working class prisoner is never tried by his peers or his neighbourhood. More so in a multi-cultural society like Singapore. Strictly, we should allow that a Malay-speaking prisoner should be tried by a Malay jury, a Chinese prisoner by a Chinese jury, a Tamil prisoner by a Tamil jury, and an English-speaking prisoner by an English-speaking jury. The irrational prejudices, the attendant lack of certainty and uniformity and the havoc that would be injected into the system of administration of justice should be sufficient to make any sensible person sit up and re-examine the foundations of our society. It is always dangerous to think in vacuo. When Lord Devlin assessed the virtues of trials by jury, he rested his views upon the matrix of British experience. He dealt with particulars and postulated no universals; and this is reason enough for us to ensure that these traditional notions and institutions are so adjusted as to fit squarely into the fabric of a multi-racial society. Justice must be seen to be done.

I firmly believe that the proposed trial by three Judges would make for more rational, uniform and fairer trials. The accused will have the same old safeguards. The allegations against him must be proved beyond reasonable doubt. He can only be convicted of an offence known to and defined by a written law. Judges, by their very training and experience, would be and should be free from caprice and prejudice in the performance of their functions.

It has been very oddly remarked that abolition of juries would lead to executive interference with the judiciary. This must inevitably imply that our Judges lack integrity and a sense of their own responsibilities in the performance of their functions. I should rather think, however, that they would respond more easily to problems of conscience and the basic rights of citizens than any jury is able to do. For the nature of their work requires that Judges should be much more than mere legal technicians. They would, for the most part, be men who understand values and have deep convictions on great social questions.

It only remains for me to say that clause 3 (3) of the Bill should be deleted. If three Judges of the High Court are unable to arrive at a decision either unanimously or by majority, the Court must acquit and discharge the accused, and there should be no question of a retrial.

The next step, Mr Speaker, Sir, in legal reform should now have to do with the whole problem of capital punishment.

5.05 p.m.

Mr L. P. Rodrigo (Serangoon Gardens): Mr Speaker, Sir, I associate myself with the views in support of the Bill expressed by the Member for Bukit Panjang. However, in addition thereto I have certain observations to make on the Bill.

The question of whether the jury system is an integral and an indispenable facet of criminal law practice and adjudication in our courts today is a question which inevitably involves lawyers. This must be so because the system is basic in the criminal jurisprudence in which the lawyer is disciplined. In the lawyer's eyes the jury system and justice in criminal law are concomitant. They say that if you leave the jury system out of criminal adjudication in the courts, you have impaired justice by so much.

The system, Sir, has been practised in Common Law countries for some hundreds of years and in those countries which still retain the system, its operation had not been seriously questioned as to initiate a thorough examination of the system with a view to discovering its efficacy in a given society with varying social values or varying ethnic and cultural responses. In fact, it has been the subject of continuous commentary for the period of 200 years, almost from Blackstone to Lord Devlin, so that now it appears to be hallowed with such an indispensability in the field of criminal jurisprudence that the Bill now before the House is to some lawyers anathema.

I regard the jury system as an ingenious and practical instrument of justice of considerable nicety, but depending on what context it is supposed to operate. As a citizen I would look to the jury system for reassuring signs of its efficacy as an instrument of justice in the context of the realities within which it is meant to operate.

The effects of this Bill are that in any trial of a capital offence, three Judges will make a finding on the facts of the case which up to now has been the function of the jury, and they will proceed to determine the law and return the verdict. By this Bill, therefore, the jury system is abolished.

The question which ought to matter is whether this system of trial by three Judges will ensure the consistency of justice which is desired and which the jury system apparently does not assure in this multi-racial, multi-cultural social milieu of the moment. If the function of the jury is limited to making a finding on the facts of the case, why cannot three Judges make an equally just, if not a better finding of the facts? If the Judges' capacity to make a suitable finding of the facts is doubted, what do these critics have to say about the fact-findings of the Judges in civil matters in the High Court and in the subordinate civil and criminal courts?

Sir, opposers of the Bill argue that the jury system provides the opportunity for the community to participate in the administration of law and justice. Such participation is negligible. In any case would non-participation of the administration of law and justice in the lower subordinate courts to any extent impair the judgment of our Judges? What about the mass convictions in the subordinate criminal courts? It has never been theorised that such convictions are questionable.

In short, Sir, the merit of this Bill is simply the fact that in trials of capital offences, it removes from the functions of the Judge that arduous and complex task of directing the jury on which would usually depend the question of affirming or allowing the conviction in the Court of Appeal. To sum up it may be said that this Bill saves justice from having to precariously tread on the high wire of the summing up and therefore stabilise her image in our society.

Sir, I support the Bill.

Mr Speaker: It is now 5.15 p.m.

Order. In accordance with the resolution of the House, the House will now adjourn.

Adjourned accordingly at Fifteen minutes past Five o'clock p.m. Appendix to Mr Barker's speech on Second Reading of Crminal Procedure Code (Amendment) Bill (Cols 0045-0048)