CommentaryTom Carpenter, Pitt Law '11, spent his summer as a Legal Extern at the Office of the Attorney General of the Republic of Palau…
The most recent general election in the Republic of Palau, held on November 4, 2008, was a historic event for the small island nation. In addition to electing a new President, Vice President, senators, and delegates, the people of Palau passed 22 constitutional amendments. The amendments included a ban on gay marriage, the establishment of Palauan as the prevailing language of the Constitution of Palau, and the setting of eligibility requirements for public officials.One newly-passed amendment in particular will substantially alter the Palauan legal system, which is largely based on the legal system of the United States. Palau shared a close relationship with the US after American forces liberated the island from Japanese occupation during World War II, and voted for full independence from the United States in 1994. The Ninth Amendment to the Constitution of Palau allows the Olbiil Era Kelulau (OEK), the legislative branch of the Palauan government, to provide jury trials in criminal and civil cases. In order for a jury trial to be appropriate in a criminal case, the alleged offense must have been committed after December 31, 2009, and must be punishable by imprisonment of 12 years or more. The amendment provides no such limitations on jury trials in civil cases.
The former judicial system consisted of a trial court and the Supreme Court of the Republic of Palau, which served as an appellate court. Four judges preside over these courts and split the case load evenly at the trial level. If an appeal is taken by the Supreme Court it is heard by the three judges who did not hear the case at the trial level. In addition to the trial and Supreme courts, there is a separate trial court that only hears land disputes. This land court has several of its own judges, and as with the general trial court, appeals from the land court are taken to the Supreme Court. Currently, this system is still in place, and it will remain so until the OEK passes a bill to implement jury trials.
The Palauan Senate, which along with the House of Delegates makes up the OEK, has wasted no time in preparing a bill for the provision of jury trials. While the bill is still in the early stages of the legislative process, it passed its first reading in the Senate this past January. In its current form the bill requires juries consisting of six jurors to reach unanimous verdicts in all cases in which the parties elect for trial by jury. A jury trial can only be waived if the defendant does so in writing, the prosecuting attorney for the Republic of Palau consents to the waiver, and the court approves the waiver.
The bill also establishes guidelines for examining and selecting potential jurors. According to the most recent version of the bill, objections to potential jurors by the parties in dispute are appropriate where the potential juror is related to key individuals involved in the trial, has served on another jury that has heard evidence concerning the offense charged, or "has a state of mind" that would preclude him or her from being a fair and impartial juror. Admittedly, this language is broad and confusing, and raised some troubling questions in my mind about the jury selection process. How closely must a potential juror be related to a key individual before an objection is appropriate? Who qualifies as a "key individual?" What does the OEK mean when it states that an objection is appropriate when a potential juror has heard evidence concerning the offense charged? What "state of mind" will preclude a juror from being fair and impartial? Unfortunately the OEK has not answered these questions, and has left that complex task to the courts. Another task left to the courts, specifically the Supreme Court, is the promulgation of rules and regulations for the implementation of the bill.
After passing the bill on the first reading, the Senate solicited comments on the bill from the Supreme Court, the Attorney General's Office of the Republic of Palau, and the Palau Bar Association. So far, the Supreme Court is the only organization to have responded. Since Palau has had no experience concerning jury trials, the Supreme Court looked to Guam and US jurisdictions for guidance. In its commentary, the Supreme Court recommended establishing qualifications for jurors, since the current bill includes no mention of juror qualifications, and only describes situations when an objection against a potential juror can be made. Another recommendation was to include mandatory jury fees to be paid to individuals on jury duty, thus encouraging them to be jurors. However, the Court failed to specify how the fees should be funded. Similarly, the Court also recommended that the Senate include statutory protection of the juror's employment while serving on jury duty. The Court's recommendation recognizes that jury service can be an inconvenience, especially for employers, and statutory protection for employees serving as jurors would further encourage citizens to perform their civic duty.
The Supreme Court's commentary on the bill deviated from the concepts followed in Guam and many US jurisdictions on the issue of requirements for the valid waiver of a jury trial by the parties in dispute. The Court indicated a belief that as long as a judge has the discretion to reject a defendant's waiver of a jury trial in the interest of justice, there is no reason to require the prosecuting attorney to approve the waiver. The Court also expressed its belief that a unanimous verdict should not be required from a sitting jury, and that there should be no minimum size requirement for a jury. However, the Court stopped short of making recommendations to the Senate on these issues.
While the transition to jury trials has so far presented no insurmountable obstacles, there are many significant issues facing the Palauan legal community. One of the biggest hurdles to overcome is integrating jury instructions into the legal system. The law concerning jury instructions must be developed from its infancy, and lawyers and judges must learn, or at least re-learn, how jury instructions fit into the litigation process. Comprehensive, legally accurate, and easily-understood instructions must be drafted, and Palauan law must be developed to allow appeals alleging defects in the jury instruction process.
Another significant hurdle for Palau to overcome is the strain that will be placed on the judicial system by the increased time and money required for jury trials. With only a trial division and the Supreme Court, and only four judges to oversee both, the judicial system is stretched thin and can ill afford the lengthy trials that juries will surely bring. While there is a separate land court with several judges, it is just as busy as the other courts. In addition to the judicial system, the Attorney General's Office will also feel the strain of the impending jury trials. The Office has only six attorneys and two investigators, and is already overworked.
Additionally, the increased costs of jury trials will place a strain on the government as a whole. This strain will be especially difficult to absorb given the current global financial crisis, which has greatly affected Palau. Increased costs will likely come in the form of higher administrative and overhead expenses brought on the by the increased time commitment jury trials require. The private sector, with the exception of attorneys, will also feel a financial strain. Jury trials will increase the amount of hours an attorney works, thus increasing the fee charged to his or her client.
In addition to the general problem of increased time and costs, Palau faces unique problems in its implementation of jury trials due to the country's size and demographics. With a land area roughly twice the size of Washington, DC, and a population of approximately 21,000, of which around 3,000 are immigrants and about 5,000 are children, Palau has a very small pool of potential jurors. Compounding this problem are the strong and extensive family ties that run through the nation, and the strong allegiances created by the traditional clan system. These issues have caused great concern that fair and impartial juries will be almost impossible to convene, and that as a result, criminal convictions will be very rare. A related concern is that jurors will be bribed. While this is a concern in any system utilizing juries, Palau is particularly susceptible to this concern because of its strong familial and clan allegiances. These allegiances, coupled with Palau's small population and geographical size, provide easy access to jurors thus increasing the potential for bribery.
Another problem is that because Palau is so geographically small, with courthouses only in the main city of Koror and the national capital in Melekeok State, it is impossible to remove a high-profile trial out of a potentially unfair venue as is done in the US. This procedure is followed in the US because extensive media coverage of a trial, or events leading up to a trial, can create a bias in the local jury pool. By moving the trial to a venue where the media coverage has been slim, or ideally none, this bias is eliminated. In Palau the potential for a media created bias is even higher than in the US because Palau is so small, and there is no alternate venue to move to thereby eliminating the bias.
A unique concern at the Attorney General's Office is that the Republic of Palau is statutorily barred from appealing court decisions from the trial level. Therefore, if the government were to lose a case because of what they believe was a defect in the jury selection or instruction process, they would be bound by the result and unable to appeal. The fact that the government cannot appeal from the trial level is already a problem, and adding jury trials would compound this problem because it would lead to more situations where a government appeal is warranted but prohibited.
The Palauan legal system is substantially based on the United States system, but until now has lacked an element fundamental to this nation's notions of justice. By implementing jury trials, Palau has embraced that missing element. While the implementation process will be unique because of Palau's own characteristics and challenges, the experience can serve as a model for other nations both in the Pacific region and around the world seeking to implement jury trials in their legal systems.
Mentioned in the article:
Palau Senate Bill 8-31, Eighth OEK, First Regular Session January 2009
Official Comments to Senate Bill 8-31, provided by Arthur Ngiraklsong Chief Justice of the Supreme Court of the Republic of Palau
Photo Credits: Tom Carpenter
