Justice must be seen to be done

Female Jurors rejected by defence, I read in L-Orizzont on November 18. Three women had been selected by lot for that particular trial by jury and the defence have the right to refuse three potential jurors. Neatly eliminated!

According to L-Orizzont , the defence did this to ensure an all-male jury.

The case involved the shooting of a woman by her estranged husband. When I first came back to Malta (early Nineties), lawyers defending men who were violent with their women did not have the problem of challenging female jurors - we just did not have them.

All the cases I used to read about at the time, mid- to late Nineties, had all-male juries. This had prompted me, in April 1997, to write an article entitled "Why are juries still male-dominated?"

I had attempted to show up the discrimination that arose from only having all-male juries and hoped to raise awareness that women were not being called for jury service.

I had checked on the jury listings in the Government Gazette (1997) and my findings had not surprised me.

In the listing for jury "foremen", under the As alone, there was one female to 23 males and there were 13 females to 86 males for jurors. I had pointed out that since these names are supposedly taken from the electoral register and we are always being told that there are more women than men on the island, something was badly wrong!

I had written on the subject because I had been incensed that a young man who had stabbed his former live-in girlfriend was cleared of trying to kill her, but was found guilty of "excusable grievous bodily harm", by an all-male jury.

Interestingly, the UN International Day for the Elimination of Violence against Women last Tuesday had "There's No Excuse for Violence in the Home" as the theme.

Maybe more people should be questioning the term "excusable" in cases of domestic violence.

The normal reason for "excusable" in such cases is that the female wants out of a violent relationship and the man cannot cope with it. It is still deemed within men's rights, despite the lip service, that women are tied to them for life regardless of their behaviour. Ironically, they use "family values" to defend their stance.

"I want to keep the family together," they bleat. Ah! the poor mites, they can't stand alone and miss having someone to blame for their inadequacies.

I must add a bit of black humour here. A 'senior legal' male I was discussing the issue with the other day said: "Of course violent men believe in sound family structures. They kill their wives to ensure they provide a good family foundation, six feet underground!"

Seriously though, this problem of violence against women is still very real and that is why female representation on such juries is essential. An all-female jury would be unfair in such cases, but not having any at all is just as unfair.

Not having female representation in cases of violence against women is like having an all-white jury when the accused is white and the victim a black man, or an all-Muslim jury when the accused is Muslim and the victim Christian.

In July 1997 I highlighted the case where a man got a mere four-year jail sentence after having been found guilty of "excusable, wilful homicide".

He had stabbed his wife 23 times, thrown acid at her face and lower torso and six out of nine men decided he had "acted under the first transport of sudden passion or mental excitement caused by provocation".

I cannot retell the whole saga here. But concern that the sentence had given the message that men could "excusably kill their wives" had also been expressed by the Domestic Violence Unit.

The Unit had noted at the time that "the couple were encouraged to reconcile even after incidents of violence" and had emphasised that "it is detrimental for couples in violent relationships to be encouraged to remain together, unless the violence is addressed".

I had again decried the fact that the jury was all male because women were still not being called for jury service and that that was undermining the whole concept of trial by jury.

I had ended that piece with: "Imagine the outrage if the Bobbitt case had been heard by an all-female jury."

An interesting case that had hit the media a little later brings a smile to my face. Maurice Zarb Adami instigated a constitutional reference that his fundamental human right had been violated because he was fined for failing to serve as juror in 1997.

His reasoning was that he was being subjected to more onerous obligations than women, who were exempted from jury service. The Criminal Court referred the matter to the First Hall of the Civil Court in its constitutional jurisdiction.

Mr Justice Camilleri pointed out that the Criminal Code provided for every citizen of the country who was aged over 21 to be eligible for jury service. The law therefore made no distinction between males and females in this regard, the judge said.

Mr Zarb Adami's complaint was therefore about the manner in which the law was applied in practice. Okay, so far.

But then Mr Justice Camilleri said that although "it was certain that the number of men on the lists of jurors was disproportionately larger than the number of women, this did not of itself render the selection of jurors discriminatory". The case was dismissed.

Funny that. I would have thought that was an obvious example of gross discrimination. And other people must have agreed because something had been done about the discrepancy and more women's names are now showing up in the listings (see box).

But the fact that we can still end up with all-male juries shows that the problem is far from solved. The law is still not being applied to ensure that there is no distinction between males and females eligibility for jury service.

Getting back to the case at the beginning of this article, it does seem likely that the three women were refused because of their gender.

Nothing is legally wrong here. The defence is allowed to refuse three prospective jurors in a case, without reason, but morally it can't be right.

As I explained earlier with the black/white, Christian/Muslim examples, a jury has to be seen as a fair representation of our society and our society is not all male.

Defence lawyers are doing their job when they reject a juror they might think is prejudiced. Their job is to get the accused off the hook.

It is the jury system that needs more reform to ensure we get the right gender balance; as Mr Justice Camilleri had rightly said in the Zarb Adami case, it is "the manner in which the law was applied in practice" where complaints should be addressed.

If there are only three women put forward and the substitutes are all men, and the defence have the right to veto three people, all we are getting is eyewash.

The number of women in the lists is still far from equal to the men, although there has been a marked improvement, but it seems that, despite more women being listed, precious few are making it to the jury seats.

Mr Justice Camilleri can quote that "the Criminal Code provided for every citizen of the country who was over 21 years of age to be eligible for jury service", but the reality is still that, although women are eligible, the system is failing.

One does not have a choice to opt for jury service; it is a social obligation. Although men as well as women try to get out of it, the fact that there are still fewer women on the listings, and more importantly it seems that even fewer of those are being called, means that we women have to make an extra effort to ensure we take that responsibility seriously.

Women who are fearful or think they lack the necessary skills to take on such a challenge, should know that most men have to accept the role, whether they are fearfull, feel they lack ability or have other demands on their time, as Mr Zarb Adami found out.

We cannot expect 'selective' equality. We women have to put our money where our mouth is and start turning up for jury service and objecting if we unfairly excluded.

Male Dominated Juries

Charles A. Micallef, the Court Registrar, wrote the following letter to the editor, following my promise to write on male-dominated juries this week:

I wish to inform you that for the month of November 2003, in the courtroom and under the supervision of the judge presiding over the trial by jury, 30 jury foremen and 150 ordinary jurors were chosen by lot from the list of jurors for 2003. Of these, five and 65 respectively, were women. Of the jurors chosen, 41 men and 27 women filed a petition to be exempted for reasons of work which is exempt, or of serious illness certified under oath, or in the case of women jurors, because they have small children. There was also a substantial number of persons who were not notified.

The court, the day before the trial by jury began, exempted 25 men and 25 women for one of the above-mentioned reasons. So, on the first day of the jury, there were 59 eligible men and 17 eligible women remaining.

To form the jury, the names of 29 persons were drawn by lot, of whom three men were refused by the Attorney-General without reason and three women were refused by the defence without reason. The court refused three men and one woman for a valid reason and, in the woman's case, she was refused by the court because she was a neighbour of the accused and was also a family friend.

The law empowers the Attorney-General and the defence to refuse three persons without giving a reason while the court may, for a good reason, exempt anyone from serving as juror. Another woman whose name was called but who did not turn up, and five men who were called and who, too did not turn up, were found guilty of contempt of court and ordered to pay a fine of Lm100 each.