Be careful what to pray for

The Yorgen Fenech trial verdict led to understandable surprise and disappointment at the fact that no closure has been achieved concerning the mastermind(s) behind Daphne Caruana Galizia’s assassination.

But at times, the reactions also verged on hysteria that bred misconceptions and fallacies.

Examples included: The mistaken assumption many made that if X commits a crime, then, if ‘things are done properly’ by those in charge, X will necessarily be convicted; failure to distinguish between ‘being morally convinced that X did Y’ and ‘sound evidence exists which indicates beyond reasonable doubt that X did Y’(criminal cases ought to be decided in terms of the latter); and claims like ‘If X asks for a pardon, then necessarily X is guilty’ (I am not claiming anything regarding the case in question, and it may be the case that the assertion is correct, but it definitely cannot be taken as a general rule).

What was utterly disgusting were claims by some of the supposed great and good within the chattering classes—apparently even by the major ecclesiastic in the diocese—that jurors were ‘evidently’ bribed.

This article will indeed begin with jurors and consider an issue that arose in the aftermath of the decision—the feasibility of having ordinary people decide the outcome of criminal cases, as stipulated in the trial by jury system.

That the issue arose is positive. It always makes sense to discuss how the state’s organs function. However, even in this case, reactions ranged from the hysterical to the rational.

Cases of the former include those who pointed to the virtues of the Italian system, which has no jurors, as evidently superior to ours because it managed to get Totò Riina condemned. Apart from the fact that, as the late Indro Montanelli used to point out, many Italians used to consider the British system of justice as the gold standard, it is worth noting that the Italian system was also responsible for some serious miscarriages of justice.

There were cases where it failed to condemn the guilty, and others where innocent individuals endured an ordeal and were condemned on flimsy grounds, with those responsible for the ordeal suffering no consequences whatsoever (Google ‘Enzo Tortora’). And the most dumbfounding feature of some of these arguments was the claim that abolishing trial by jury would enhance democracy. It is on this aspect that the rest of this article focuses.

Trust in ordinary persons

Trial by jury, whose rationalisation can be traced to Magna Carta, has one thing in common with democracy—trust in the judgement and moral vibes of the ordinary person. Trial by jury is based on the idea that, even though not an expert in the law, given the right instruction, the ordinary person can make decisions that are not merely in line with what the law and its procedures imply, but are also reflective of sound moral judgement.

Quite analogously, democracy in politics is based on the assumption that the ordinary person, despite not being an expert in the science of politics or in particular branches like the economy or foreign policy, can form a sound opinion as to what is in one’s own good and in the good of society, and can vote accordingly. This trust in the judgement of the ordinary person is something that many thinkers throughout the years have denied.

It is indeed the rejection of this assumption that induced eminent thinkers like Plato to reject democracy in toto. Which leads to a question pertinent to our context: If the state decides to no longer trust the ordinary person’s judgement in cases of criminal justice because of the supposedly mistaken results this delivers, why should the state keep trusting the ordinary person when it comes to electing government? The consequences of ill-choices in elections will affect not only individuals and their families but society as a whole.

Prima facie, if there is a good case to abolish the decision-making role of the ordinary person in one sphere, there is an equally good case for abolishing it in the other, and this should ring alarm bells to champions of democracy. Yet, I do not rule out that there may be arguments involving fancy footwork, sustaining that it is feasible to limit the ordinary person’s say in one sphere and not in the other. But such arguments need to be made, not assumed or deferred.

Or else, there ought to be suggestions whereby the ordinary person’s judgement is tempered rather than eliminated. These could be both procedural and educational. Why not have units in subjects like Environmental Studies and Systems of Knowledge, whereby the basics of law and of various trial systems are explained?

Mutatis mutandis, measures for sharpening the ordinary person’s judgement could be made in relation to political decisions as well. What’s important is setting the ball of serious debate rolling, rather than presenting ‘obvious’ solutions in knee-jerk fashion.