Whatever happened to due process?

Jun 25, 2023 Features / Columnists, Peeping Tom

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Kaieteur News – A great number of persons are clamoring for justice in relation to a matter which is being investigated at present. But is it really justice which is being demanded or the neck of the accused?

One of the features of law-based societies is the implicit recognition that every citizen is subject to the law and not the whims and fancies of anyone. As persons who are part of a society ruled by the law, each of us has implicitly consented to repose our trust in the law and not allow our fate to be subject to the actions or allegations of any person or group of persons.

As part of this process of being ruled by and under the law, accommodation has been made to ensure procedural fairness. Thus if an allegation is made against someone, there should be a mechanism to ensure that the accused is treated fairly and is not subject to biases and prejudices during an investigation. The mechanism to ensure procedural fairness is known as “due process”.

Due process is a fundamental principle in law that ensures fairness and protection of individual rights in legal proceedings. It refers to the idea that a person must be treated fairly when laws are being enforced or someone is subject to disciplinary conduct in administrative matters.

In a recent decision of the Privy Council, it was declared that “…due process” has generally been considered to protect rights of a procedural nature, fair trial rights, in particular (though not exclusively) the right to procedural fairness. This is a right which is engaged in all kinds of contexts, both judicial and administrative.”

As a legal principle, due process upholds the principle of the presumption of innocence. This means that individuals cannot be deprived of their liberty or subjected to punitive measures unless there is sufficient evidence to establish their guilt beyond a reasonable doubt. This presumption places the burden of proof on the prosecution and acts as a vital protection against unfounded accusations.

In respect to criminal allegations, due process requires that individuals be afforded the opportunity to defend themselves and to provide an explanation, rebuttal or to be able to mitigate the consequences of any penalty. None of us would want to be accused of something, including in our workplace, and not be afforded the opportunity to provide an explanation, to give our side of an issue or to offset any penalty that may be imposed upon us.

Due process is therefore a safeguard that protects citizens from potential abuses and ensures that their rights are upheld during investigations and legal proceedings. It guarantees the right to a fair and impartial hearing.

This includes the right to present evidence, cross-examine witnesses, and challenge the evidence and arguments presented by the opposing party. By providing individuals with a meaningful opportunity to participate in the legal process, due process helps prevent wrongful convictions and ensures that the truth can be revealed through a balanced presentation of facts.

Another important aspect of due process is the right to an impartial decision-maker. This means that the judge or adjudicator overseeing the proceedings must be neutral and unbiased, ensuring that individuals receive a fair and objective evaluation of their case. The presence of an impartial decision-maker helps prevent favoritism, corruption, or unfair outcomes in proceedings.

Imagine what would happen without due process. A person would be subject to all manner of allegation and unable to offer any defence. That person would be at whims and fancy of his accuser and whoever has to investigate or arbitrate the charges or accusations.

Without due process there would be “cowboy justice”.  Without due process, persons can be charged or dismissed without their knowledge or ability to defend themselves, thereby undermining the principles of fairness and justice.

The absence of due process can also lead to unequal treatment and discrimination. Without clear rules and procedures, individuals may be targeted based on personal biases, political affiliations, or other arbitrary factors. This can result in marginalized groups being disproportionately affected and denied equal protection under the law.

But the absence of due process can have broader implications. It can contribute to a breakdown of the rule of law, creating an environment of uncertainty and fear. Without the assurance of fair treatment and the protection of individual rights, citizens may lose faith in the legal system, leading to social unrest and a loss of confidence in the government’s ability to ensure justice and protect their interests.

Without the protections afforded by due process, individuals may be hastily accused, convicted, and punished based on unreliable or insufficient evidence. This not only deprives innocent people of their freedom but also undermines public confidence in the justice system.

Let us therefore be careful what we wish for others.  One day we too might be facing allegations or accusations. Without the right to due process, we too can become the victim of unfairness.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions and beliefs of this newspaper and its affiliates.)

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• citizen, clamoring, consented, investigated, Peeping Tom

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