  
THE RIGHT TO DUE PROCESS OF LAW
Suppose, during the week of Thanksgiving Day, the mayor of Toronto ordered the large food stores in her city to give one free turkey to each needy family in their respective areas? Regardless of the eminence of the mayor's office and the benevolence behind her instructions, the food stores could disobey her with legal impunity. The police could not legally arrest the proprietors or confiscate their turkeys. Why? Because there is no law requiring that they donate turkeys to needy people, no law authorizing the mayor to issue such orders, and no law requiring people to obey unauthorized orders. In the absence of such laws, the proprietors of the food stores have complete legal freedom of choice regarding their turkeys. They may sell, hoard, or simply devour their turkeys. Freedom of choice is too fundamental a right in a democracy to be taken away on the whim of a public official, even a humanitarian one. A key reason for this is that if a benevolent order can deprive people of their freedom of choice, so too could a malevolent one. If the mayor had the power, at will, to give food to needy people, she would also have the power, at will, to take food from them. Indeed, in days gone by, despotic kings ruled in just this way. By arbitrary decree, they ordered people about appropriated their belongings, and conscripted their labour. If the king wanted something, he simply ordered his soldiers to get it. If the king's will happened to conflict with the will of his subjects, it was too bad for his subjects. The subjects who disobeyed the arbitrary orders of the king could be just as arbitrarily exiled, imprisoned, tortured, or beheaded. In order to protect the freedom of the individual against such arbitrary use of state power, democratic societies developed the principle of the rule of law. The power of the state may encroach upon the freedom of choice only through the authorization of law. No one is above the law and everyone is subject to it - premier and pauper, constable and civilian alike. If the law is silent, each of us retains complete freedom of choice. No matter how foolish, selfish, mean, or stingy our choices may be, the power of the state may not be marshalled against us. On the contrary, we are entitled to the protection of the state. As pointed out in the last section, some restrictions on our freedom are necessary and desirable. But no matter how necessary and desirable, such restrictions cannot be imposed upon us through the power of the state unless they are incorporated in law.
The Process by Which Law is Enacted How, then, does a restriction become part of the law? Generally it must be enacted by a majority of the representatives of the people - federal parliament, provincial legislatures, municipal councils. But, of course, our representatives are human beings with all the defects of human beings. What is to prevent our representatives from enacting unreasonable restrictions or establishing arbitrary powers? Theoretically, nothing but practically, a number of factors. In democratic societies, the citizens are entitled not only to the rule of law, but also to due process of law. The law must be enacted in an open public session. Thus, citizens can watch their representatives in debate, discussion, and decision. New bills usually take a while to become law. They must be debated in principle and in detail. This enables the citizens to let their representatives know what they think. They may write, speak, advertise, or demonstrate in order to influence the judgment of the legislators. Moreover, our representatives do not hold office forever. Democratic societies convene periodic elections. Various candidates and parties compete with one another for the approval of the citizenry. Ultimately, then, we the people may approve or reject the decisions of our representatives by voting for them or for their opponents in these elections. This open legislative process cannot, of course, guarantee us against improper restrictions on our liberty, but it can help to minimize the risk.
The Process by Which Law is Applied But due process in enacting law is one matter. There must also be due process in applying the law. Consider this example. Suppose our parliament, feeling the need for additional revenue, were to impose a new tax on us? The new tax might provide, for example, that we pay an additional 5% "on all of the income earned during the year". Suppose, then, that I win a million dollars in the sweepstake? Is this million dollars subject to the new 5% tax? That depends upon the meaning of the new law. Does the word "income" include
Unhappily, human language is capable of conflicting interpretations. Someone must have the power to settle the question. Who knows the intentions of our parliamentarians better than they themselves? Should they, then, be empowered to resolve these thorny questions of interpretation? If we let them settle the issue, we are again running the risk of arbitrary decision making. The members of parliament who most want revenue to flow into the government's coffers would be tempted to decide the question against me. If, on the other hand, I was an influential citizen who had worked hard for the ruling party in the last election campaign, the parliamentarians might be tempted to decide the question in my favour. The problem with politicians in this role, is that no matter how fair they may be or try to be, the pressures on them are such that they will not appear fair. What is true of tax laws is true of laws in all fields - wills, trusts, welfare property, labour, crimes, etc. The danger in all these fields is that the question of liability or impunity, guilt or innocence, rightness or wrongness will appear to be decided according to the influence of the litigants rather than according to the evidence of their conduct and the provisions of the law. If we are to be governed by the rule of law rather than by the whims of those who rule, we cannot allow politically self-interested individuals to decide how to interpret and apply the law. What is needed are decision makers who are independent of political and other social interests. The difficulty however, is that all people have some interest or other, some bias or other, that might distort or appear to distort the fairness of their judgments. This realization has led democratic societies to establish an independent judiciary. We have provided for the appointment of judges who must disengage from the political affairs of the community and simultaneously enjoy tenure (usually, the rest of their working lives) in the office they hold. This insulation from current controversy and the security of their jobs are designed to make our judges less susceptible than others in the community to extraneous influences on their judgment. But even politically uninvolved judges with tenure are human beings with human faults. How can we reduce the risk that their decisions will be biased, arbitrary, or simply mistaken? Just as our political representatives were required to observe certain procedures in enacting law, so too must our judges adhere to "due process" in applying the law. All parties who may be affected by a judgment are entitled to a fair hearing. At the very least, this means advance notice of what is to be claimed against them, the opportunity to confront and cross-examine those who are testifying against them, and an opportunity to tell their side of the story. The complexities of modern law require also the right to the assistance of trained legal counsel. As a further protection against arbitrary process and unfair decision making, hearings generally should be held in public and the subsequent judgments should be published for all to inspect. In addition to the ordinary courts of law, our complex society has created also a network of independent administrative tribunals which adjudicate disputes in problem areas where special expertise is required - business licensing, labour relations, workers' compensation, securities, welfare, etc. In varying degrees, the principles of tenure, disengagement from political activity and procedural "due process" apply to these tribunals as well as to the ordinary courts of law. Now we have set out the minimum requirements of due process of law. The freedom of the individual may be restricted but only by law. Such laws must be enacted by a majority of the elected representatives of the people in open public sessions. The people must have the opportunity both to petition their representatives and ultimately to replace them. The law must be applied in open public sessions by adjudicators who are independent of the political and social interests in the community. Those who may be affected must have a fair opportunity to contest the claim and persuade the adjudicator.
|
|
The Fundamentals Of Our Fundamental Freedoms -- The Booklet Contents |
|
| CCLA In The Schools | Join Us | Feedback | Search | Other Interesting Sites | Home |
|
a prize? Is a prize which has been won the same as "income" which has been "earned"?