To what extent should ordinary people decide the guilt and punishment of alleged criminals? Is criminal justice too serious to be left to career judges? Trial by a jury of one's peers is one of the most fundamental rights of citizens of the common law world, including Hong Kong. In the words of the United States Supreme Court, it is thought 'necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority'. Similar concerns have led continental European countries to establish a variety of institutions for allowing representatives of the community, although unschooled in law, to share decision-making responsibility for criminal cases with professional judges.
To be sure, common law juries and European-style mixed tribunals of judges and laymen have long had their critics and could benefit from reform.
Many countries have not adopted any form of community participation in criminal trials. Others have abandoned jury trials or restricted their operation in practice. Russia, for example, has many ways of curtailing resort to its jury trials, especially in politically sensitive cases. Singapore abolished criminal juries after then prime minister Lee Kuan Yew became dissatisfied with their verdicts. Germany's mixed tribunals only handle limited types of criminal cases, and Americans manage to sustain their cherished jury system because most criminal cases are disposed of through plea bargaining that avoids trial.
The countries of Northeast Asia have traditionally regarded significant popular participation in the administration of criminal justice as incompatible with national political-legal culture.
Yet, in recent years, a desire to enhance public trust in the judiciary has increased their interest. Since 2008, South Korea has been experimenting with a distinctive 'citizen participation trial' in which a jury's non-binding verdict greatly influences the court's judgment. In Japan, since 2009, mixed courts of three judges and six laymen actually decide serious criminal cases. Taiwan has just begun to discuss a suggestion for non-binding court consultation of 'trial observers'.
At least part of mainland China has caught the fever of popular participation in criminal justice. In late 2007, the 17th Communist Party congress, to support its efforts to promote social 'harmony' and 'stability', placed renewed emphasis on resolving disputes through 'people's mediation' and less formal court processes.
Shortly afterwards, the courts of Henan province's 100 million people, led by colourful High Court chief judge Zhang Liyong, began to experiment with what the court calls 'the people's jury system'. This is different from the system of 'people's assessors' that China imported almost half a century ago with the rest of the Soviet legal system.