The Right to Due Process of Law

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.

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.

• 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.

• 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-א-vis the state (e.g. loyalty).

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 him or herself.
  • 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.

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.

On February 27th, 2005, the Constitution, Law and Justice Committee met to discuss the Right of Due Process in the proposed Constitution.

The Committee discussed what principles should be considered within the Right to due Process, as well as the application of law and the determination of punishment.

The Committee also discussed the roles to should be played by the Knesset and the Courts regarding sentencing.

Equality under the law requires equal application of the law, and equal prosecution of a crime.

To illustrate, Committee Chairman MK Michael Eitan (Likud) cited the case of MK Gorolovsky as an example of unequal application of the law. Several days prior to this meeting, the Supreme Court overturned the Knesset House Committee’s decision not to rescind the immunity of MK Gorolovsky to allow prosecution for fraud in voting twice in a Knesset vote.

Dr. Amnon Reichman (Professor of Law, University of Haifa) offered another example, that of Be’er Sheva’s law against political postering. City officials had removed posters throughout the city. However, they had only removed posters of rival candidates to the incumbent mayor.

Eyal Zandberg (Deputy Legal Advisor to Constitution, Law and Justice Committee) suggested that this debate should solely consider whether consistent prosecution should be a constitutional principle or not. It was pointed out that in the US, although equal application of the law is viewed as a constitutional doctrine, it actually emerged from interpretation of the constitution with a full set of checks and balances. Therefore, equal application of the law can be viewed as a constitutional principle, even though it is not explicitly stated in the constitution. [Article XIV]

Reichman warned against simply looking at the literal text of the constitution without considering the different interpretations that would potentially exist. [Particularly in relation to selective prosecution as discrimination.]

Zandberg returned to his point – stating that he believed the question to be whether to make equal application of the law constitutional, or leave it to the legislator.

MK Eitan warned that he’d rather alter the text to include checks-and-balances preventing criminals from acting under cover of the safety implied by selective application. He closed by saying that the committee would vote on two options: one including equal application of the law in the constitution, the other excluding it.

All countries’ constitutional interpretations, bar the US, state that the death penalty constitutes ‘cruel and unusual punishment’, although not all constitutions explicitly state it as such. Committee Chairman Eitan stated that although the topic of the death-penalty was covered, the subject should be left to the judiciary to decide.

The same participant conveyed that as there is now a trend of reducing the discretion of the courts, and denoting crimes minimalist sentencing guidelines [suggested sentences for a given crime], suggesting that agreed basic, unchanging and objective minimum-sentences should be included in the constitution.

Another participant defined disproportional punishment as punishment designed to deter future criminals without taking into account the severity or non-severity of the crime in the particular case. She also believed that having checks against “cruel” punishments would safeguard criminals from extreme punishment, whilst “proportionality” would ensure adequate punishment for a given crime. [For instance negating the possibility of a 1 shekel fine for murder]

New Zealand’s constitution mandates proportionality in punishment (section 9 of Bill of rights act 1994). Germany also has something similar (section 9 of the Constitution).

Zandberg disagreed, believing that the lower-limit of sentencing be left out of the debate. The proportionality principle, he argued, is not meant to be universally applied, but instead exists only to protect against extreme sentencing.

The Capacity to stand trial has two meanings: the ability to stand trial, and ability to have rights and obligations. Currently, the Knesset has the authority to alter the age at which a person has standing before the law, although the definition of a “person” (such as mental capacities and/or age) is undefined.

Reichman asked how it is possible to differentiate between the two ideas, seeing that standing in court is itself a legal right. Dalit Dror (Justice Ministry) stated that in most countries, minors initiate legal proceedings, although minors do have legal rights. She continued to argue that is important to set a constitutional principle denoting minors the mentally handicapped the legal capability to have standing. The Knesset, upon deciding how to implement the use of these rights will then be unable to simply negate them.

All agreed that everyone deserved their right to a day in court. Limitations, such as the geographical location of courts [for instance the closing of a court in Eilat necessitating travel to a court in Be’er Sheva], and other limitations [such as court and lawyer-fees], could all impede or affect an individual’s right to court.

Zandberg questioned whether this constitutional right would place impossible budgetary demands, entitling individuals the right to demand that every possible service be provided by the state, canceling every fee. In extension, would the court be able to summarily dismiss baseless cases? Reichman asked whether the Limitations Clause would solve this.

Zandberg expressed discomfort with severely limiting the discretion of the court to sentence at its discretion by including so many guidelines within a written constitution. The freedom of the court to decide, he argued, fundamentally boils down to the protection of human rights.

Chairman Eitan suggested that the freedom of the courts could be safeguarded using the limitations clause governing the division of jurisdiction between the legislative and the judicial branches. He articulated that the worst situation would be a state in which one or other of the branches assumed full control of the legal process. He believed that the court in recent years had overstepped their boundaries, although he stated that the consequences had often been positive.

MK Eitan stated that although the Knesset could vote down the implications of the Basic Law: Human Dignity and Liberty by a vote of 2-1, they had decided to accept it, and by extension, the court’s discretion in human rights issues. He said that the Knesset had no desire to monopolize human rights legislation, only to maintain a dialogue on the subject with the courts.

MK Eitan said that he suspected that if the court knew the Knesset was liable to overrule a given law, it would restrain itself from attempting to pass it. Zandberg however, disagreed, believing that the court would act according to its own discretion, leaving the Knesset with the responsibility of overruling or retaining the rulings according to its own criteria.

Chairman Eitan stated that the intrinsic construction of the courts and the Knesset (the first being an unelected and unrepresentative body; the second being populist) necessitated a dialogue between the two arms of government.

The twin principles of Burden of Proof and presumption of innocence clearly apply to criminal law.

Chairman Eitan posed the question of how the term “beyond a reasonable doubt” should be quantified in regard to the burden of proof.

One participant argued that the term “beyond a reasonable doubt” is not a quantifiable concept, and therefore cannot be measured. MK Eitan responded by asserting that the participant was weaseling, and asked why the term wasn’t just written as “beyond any doubt”?

Another attending representative replied that the concept of “beyond a reasonable doubt” doesn’t necessarily imply that there is no hypothetical way that the judgment could be wrong. Instead, it simply means that the judge himself, although he knows himself to be fallible, is himself convinced beyond a reasonable doubt.

Michael Wygoda (Ministry of Justice, Jewish Law Department), argued that Jewish Common Law states that a tribunal can convict based on the strength of circumstantial evidence. Lila Margalit from the Association for Civil Rights in Israel replied that presumptions should never constitute grounds for conviction.

Reichman asked how the concept of “burden of proof” should apply to civil cases. He followed that there is a concept in civil law stating that the burden of proof falls upon the plaintiff.

MK Eitan argued that it would make little sense to include the principle of presumption of innocence for civil cases within the constitution, as both sides are presumed ‘innocent’. Whereas in criminal law the act is illegitimate regardless of sentence, in civil matters the acts are often legitimate, even if they have consequences as a result of pre-existent obligations between the parties.

The Committee concluded that in civil matters, there should be a constitutional presumption of the burden of proof falling upon the plaintiff. In the case of civil actions, upon whom the burden of proof falls should not be stated within the constitution, and the Limitation Clause should cover cases where the burden of proof had shifted from the plaintiff.

Three types

1. Personal conflict of interest
2. Institutional conflict of interest
3. Preconception/prejudice

By current law, the very existence of the prejudice is not permitted, regardless of whether it has had, or will have an effect.

Reichman argued that individual should have the right not only to judicial procedure, but also to legislative and administrative procedures, without conflict.

One participant said that there exists a tendency to streamline the criminal process by diverting criminal matters to an administrative track. This, she argued, did not exclusively occur in minor issues such as parking, but also major criminal issues such as terrorism.