I’m in the middle of writing a longer article on religion; but meantime, here’s an article from today’s Sydney Daily Telegraph that caught my eye, and which has serious implications for the administration of criminal justice in all countries whose system involves adversarial jury trials.
Ismail Belghar is believed to be the first Muslim in Australia to be granted a judge-only trial on the grounds that a jury may be biased because of his religious beliefs.
The decision in the New South Wales District Court can be revealed after Belghar, 36, yesterday pleaded guilty to detaining and assaulting his sister-in-law after she “dared” to take his wife to the beach without his permission.
The court heard, because of his religious beliefs and because he thought he had absolute authority over her, Belghar felt it “abhorrent” that his wife, Hanife Kokden, had been to the beach where she “displayed her body”.
In March, Judge Ronald Solomon had granted Belghar a trial before a judge sitting alone after agreeing he may not receive a fair trial with a jury.
“The attitude of (Belghar) … is based on a religious or cultural basis. In light of the fact there has been adverse publicity regarding people who hold extreme Muslim faith beliefs in the community, I am of the view that the apprehension by (Belghar) that he may not receive a fair trial is a reasonable apprehension,” Judge Solomon said.
In this country, it has always been a principle of criminal justice that a judge is the arbiter of law, but the jury is the arbiter of fact. I have served on juries myself and seen the naked bigotry some people are capable of summoning, to the point of wishing to deny natural justice to an accused whose guilt is, at a very minimum, based on questionable evidence.
But to extrapolate from there to decreeing that a jury of randomly chosen citizens is incapable of reaching a more just determination of fact than a judge, whose own background and prejudices may be even more biased, is to my mind a serious threat to Liberty.
Where will this lead next? Will Muslim citizens be barred from serving on juries in which an Anglo-Saxon is on trial? Will religious, or even genetic quotas become a feature of jury trials? The places to which this slippery slope may lead are as varied as they are frightening. You may think this fanciful. But I see it as the thin end of the wedge.
For some time in Australia’s Top End, Aboriginal defendants have had the option in cases involving certain criminal offences, to have their case tried in a normal state criminal court, or an indigenous court; the latter, administered by tribal elders, provides for what we might regard as quite barbaric punishments.
But this has always been regarded as a one-off concession to the historical and cultural circumstance of this continent’s traditional inhabitants. There is no way we want Sharia law, or any other balkanization of our criminal justice system, in this country.
What do you think of judge-only trials to circumvent community prejudice (real or imagined), and do you agree this development could be the prelude to worse? Personally, I would have less problem with judge-only trials if, like some U.S. states, we had judges elected by the citizenry. Or have we, by the twenty-first century, reached the point where we do not trust ourselves to administer justice to our own society, and we must defer to the wisdom of our betters?