A trial by one's peers is a pillar of democracy, which is why scholars and activists are celebrating Argentina's budding embrace of jury trials.
So far, two jurisdictions have transitioned from bench trials, in which judges decide cases alone, to jury trials. Both stipulated that their juries must be made up of equal numbers of men and women, and the province of Neuquén went further by also requiring that half the jurors be members of local indigenous communities.
Hiroshi Fukurai, a professor of sociology and an international expert on jury systems, is encouraged by what's happening in Argentina, and he is hopeful that the trend will continue in Chile, Paraguay, Uruguay, and elsewhere. Bearing the scars of brutal military dictatorships, "dirty wars," and the covert influence of the United States, many Latin America countries are exploring jury trials as a way to empower citizens, he said.
"Jury trials give people power against tyrannical structures," said Fukurai, who was one of four experts invited to a recent conference in Argentina. There, scholars, activists, and representatives of Argentina's 23 provinces gathered to take stock of progress and discuss ways to bring greater transparency to the criminal justice system.
In Argentina, tens of thousands of people disappeared or were murdered during the government's brutal "Dirty War," which took place from 1976 to 1983. "The government held secret trials, and people were convicted and executed—some even without a trial," said Fukurai, noting that judges lacked oversight or accountability and were free to base decisions on forced confessions.
Two organizations played key roles lobbying for the creation of a "lay" jury system that "puts ordinary people in the position of making legal decisions whether the accused is guilty or not." Although the Argentine constitution has guaranteed jury trials since 1853, they were not actually introduced until 2006, when the state of Cordoba adopted a "mixed tribunal" system that offers a combination of professional judges and lay jurors. Fukurai called it an "experiment," which was followed in 2017 by the province of Neuquén and the capital city of Buenos Aires, which is an autonomous jurisdiction, adopting the U.S.-style all-citizen jury trial system. Unlike the United States, where the Supreme Court has forbidden the use of quotas on juries, Argentinian provinces can, and have, mandated the make-up of juries
"Neuquén has the largest indigenous population in Argentina," said Fukurai. "Many people live off the land, and their ancestral lands are important for their survival. There's tremendous biological diversity."
But ecologically unsustainable projects, including mining by international conglomerates, has degraded the landscape, spoiled water and soil, and left a legacy of toxic residue. Under the traditional bench-trial system, more than 100 indigenous activists were vilified as terrorists, arrested, and imprisoned for protesting corporate development of their ancestral lands, said Fukurai. Since the introduction of jury trials, that unfair prosecution has been deterred, he said.
"Terrorism was being used as a pretext in the past to arrest indigenous activists and collaborating white environmentalists and put them in jail," said Fukurai.
In Argentina, where provinces have autonomous criminal justice systems, legal scholars and advocates are hopeful more provinces will follow in the footsteps of Neuquén and Buenos Aires; at this point, four provinces have proposed the change, and five more are considering it. Fukurai, who was invited to the conference to share his expertise in the jury systems of Japan, Korea, Taiwan, and China, said the goal is to see jury trials adopted throughout South America, where the struggle for democratic freedoms is ongoing.
"There were military dictatorships and dirty wars throughout South America," he said. "With emerging democratic movements in the 1980s and 1990s, Argentina became more democratic, but now it is trending away, the same as Venezuela."
As economic pressures increase, fueled in part by the influence of the World Bank and the International Monetary Fund, governments across the continent are forced to adopt austerity measures, such as making cuts to pensions, health care, education, and social spending, he said. Anticipating growing social tension, democratic activists want to see jury trials adopted more broadly—extended to civil cases, not just criminal, according to Fukurai.
"Civil law is where people go for redress when the state harms the interests of the people—things like environmental destruction and pollution," he said. "People can fight their local government through litigation."
The introduction of jury trials in Argentina has made the news in that country, but it has received little attention elsewhere, beyond scholarly circles.
"The jury system is about people having the power to make decisions about their lives in their own communities," said Fukurai, who has studied juries for 35 years. He is the president of the Asian Law and Society Association, and is the author of Race and the Jury, Race in the Jury Box, and Japan and Civil Jury Trials. He noted that prominent French jurist Alexis de Tocqueville once said U.S. democracy was based on two things: the electoral system and jury service.
"Democracy cannot rest," said Fukurai. "Even though Argentina has achieved what other countries haven't, they are getting pushback. You have to always fight to maintain and educate people about democratic ideals."
