Introduction
On February 13, 2005, The Constitution, Law, and Justice Committee held the first of five meetings on Rights of due process. The committee’s first meetings on due process dealt with the theoretical rights and options, and an examination of the various implementations and proposals of these rights throughout the world and in Israel’s history. In the later debates the committee moved on to discuss specific proposals and to put together a working draft. Dr. Amnon Reichman of the University of Haifa opened the discussion by defining the right to “Due process of law” as the basic right to a fair process under the law. The rights both tell the state what it may not do in the judicial process, and what it must make sure to do – imposing both negative and positive responsibilities.
Unique characteristics of the right
There are several qualities that make the right to due process unique:
It applies to all people, not just citizens.
It implies an active, positive responsibility on the part of the state to protect it.
It binds not only the court, but all state organs, including administrative actions and actors, legislation, enforcement, and investigation.
The right exists to protect one from the courts. Which makes for a slightly awkward situation, given that the court must interpret and apply this very right. This conundrum motivates us to be as clear as possible with our constitutional instructions on due process.
Dilemmas:
Given that the court is asked here to protect against itself, what level of detail and instruction do we need to include to limit interpretation? Who guards the guards, and how?
The tension between fairness of the rules and individual justice. Rights of due process may give rise to a dilemma when the violation of due process forces us to choose the justice of the system as a whole over justice in a particular case (e.g., releasing a guilty man because the rules of evidence were not followed).
Budgetary complications – positive responsibilities on the state, such as a speedy trial, public defenders, etc., all cost money. Making them constitutionally mandated invites the court to interfere with state financial considerations when these responsibilities are neglected.
Elements of the Right:
Substantive due process: (This refers to the law itself at issue – is the law fair and fairly applied)?
Sovereign authority: Police and courts operate by the authority of the law. The laws themselves must also be fair.
Committee Chairman MK Michael Eitan (Likud) here interjected that he disagrees with using due process to disqualify laws. Due process should have to do with the way laws are implemented, not with the laws themselves. Due process should not, he said, be a catchall for values we want to impose.
Non-retroactivity: No act may be made retroactively illegal (with very rare exceptions), and no person may be punished for an act which was legal at the time.
Publicity: Laws and decisions must be published and available before they can be acted upon. A person may not be prosecuted for violation of laws he or she cannot have known about.
Equality before the law: laws may not be enforced selectively, nor may access to the courts be unequal.
Proportionality: The trial process and its result must be proportional to the damage caused by the violation and to its spirit. Shoplifting cannot be punishable by a ten-year prison term.
This applies to criminal, civil, and even international law – a state cannot wage full-fledged nuclear war in response to a mortar.
This applies to both legislative and executive (administrative) actions.
Procedural due process (fairness of the trial procedure. This is the more classical definition of Due Process):
Every person is eligible for rights, responsibilities, and process. Individual rights can be suspended, but no one may be deprived of the ability to have rights.
This point may be limited in some cases. For instance, you might restrict children and mentally handicapped persons’ abilities to exercise rights.
Every person has the right to a fair trial, unprejudiced and by an independent judge.
Dr. Reichman pointed out that according to the status quo, the judge himself makes the decision to recuse himself if necessary, in yet another example of the cat guarding the cream.
Everyone gets their day in court. Every person has the right to turn to the courts to: defend his rights, sue another person, defend himself against an indictment, sue the state, etc. Every person has the right to be present in court when his case is being discussed, to make his arguments heard, and for a ruling on his case. The trial process cannot be legally or arbitrarily cancelled.
Every person is innocent until proven guilty.
The lecture was interrupted at this point by a debate over whether state responsibilities toward the citizen under rights of due process came along with responsibilities of the citizen vis-à-vis the state (e.g. loyalty).
Specific Rights
Reichman resumed with a list of specific rights that derive from the umbrella of the right to due process of law. He suggested that in all cases of specific problems and exceptions, the constitution employ a limitations clause (wherein exceptions of limited kinds are constitutionally allowed in limited situations. See, for instance, the limitations clause in Basic Law: Human Dignity and Liberty). The specific rights are:
The right to have one’s rights respected during an investigation
The right to have one’s case brought before a judge within 24 hours (or some other reasonable time) of arrest, and to periodic audiences before a judge regarding the extension of his arrest.
To be held pending trial only if appropriate reasons exist
Information for the arrested person: the right to know the charges against oneself, to be informed of his freedom from self-incrimination, and to inform family of his arrest.
Representation: every person has the right to appropriate representation by an attorney. No person shall be deprived of freedom without representation by an attorney. If a person cannot afford an attorney, the state must supply him with one.
Understanding the proceedings: No person may be deprived of his or her freedom in a process which took place in a language he does not understand. Every person as the right to an interpreter in any criminal case, or other case in which justice requires it.
Right to examine evidence: Every person has the right to a full examination of the evidence against him.
Practical problems were raised, primarily regarding witness protection.
The solution to such a problem could be practical (e.g., the state deciding to drop certain cases) or Constitutional (e.g. including exceptions to the rule in a limitations clause).
The importance of this issue in administrative, not only criminal cases, was stressed. Here, the practical (non-constitutional) solution is more difficult.
Forbidden fruit – inadmissible evidence: no use may be made of evidence which has been obtained through illegal means.
Some say just the specific evidence illegally obtained is forbidden
Others say any other evidence that came out of that evidence – the whole tree – is inadmissible.
All have the right to a public trial. If a person’s privacy or the state’s security are at stake, and no other solution can be found, a limitation clause can allow the judicial body may elect to hold the trial behind closed doors.
No one may be required to incriminate himself.
Here MK Avraham Ravitz (Degel Hatorah) interjected and asked why there was protection from self-incrimination. He was answered that in Jewish law, a person is considered his own relative, and as such is disqualified from being a witness, and cannot even waive that status to confess guilt. The legal procedural issue is that you cannot ask someone to testify against himself before he has seen the whole body of evidence prepared. By this argument, the right against self-incrimination may lessen as the trial goes on. Finally, there is a moral and ethical question.
One participant pointed out that we need to distinguish between the right against self-incrimination, and the right to keep silent.
Canada has no explicit right against self-incrimination; it is derived from the right to due process.
The right to use all legal means to uncover the truth in proceedings against oneself, including inviting witnesses and requesting the disclosure of relevant documents.
Right to a speedy judgment, with explanation.
Double jeopardy: No person may be accused or punished twice for the same crime.
Appeal: All persons have the right to appeal within a reasonable amount of time and to request an appeal of the appeals court; the same rights that apply to courts apply also to administrative bodies / actions.
MK Nissim Ze’ev (Shas) requested the committee include the right of a defendant to speak up for himself if he feels his lawyer is misrepresenting him.
Right to damages for malpractice that resulted in the violation of a defendant’s rights.
The right to have other rights protected all the stages of the legal process, including arrest, trial, investigation, imprisonment, etc.
Additional Points
The committee went on to debate whether rights of due process apply only to ordinary court trials, or whether they also apply to administrative and legislative bodies. Amnon Reichman preferred the approach that extended all rights to cover administrative and not only legislative or judicial actions. MK Eitan wondered in response how far “fair process” extends if you take the court out of the definition of the phrase. Can you, for instance, object to the very existence of a law if you feel it was passed unfairly, e.g. without inviting the opposition to discussions? Deputy Legal Advisor to the Committee Eyal Zandberg answered by differentiating between due process of legislation and due process of law. He said the legislation has nothing to do with the committee’s debate; we are talking about due process of law, which itself is split into judicial and administrative, both of which we do want to cover. Lila Margalit of the Association for Civil Rights in Israel said due process should apply to any process in which a person may be punished or penalized. Another option suggested was that only processes which are close to judicial processes should be covered, lest we cast our net too wide. All agreed that whatever is left undefined or open-ended is liable to be decided by the court.
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