Rule of Law and Due Process

Rule of law and Due Process
(Source: Duhaime's Law Dictionary, Concepts and principles of democratic

governance and accountability a guide for peer educators, Rule of Law Institute’s
Principles)
Definition: The rule of law is the principle that the law should rule in the sense that it
establishes a framework to which all conduct and behavior conform, applying equally to
all the members of society, be they private citizens or government officials.
It means that no individual, whether president or private citizen, stands above the law.
The rule of law is thus a core democratic principle, embodying ideas like
constitutionalism, which is the practice of the rule of law and limited government.
The rule of law defends the citizen from the threats of tyranny and lawlessness.
Democratic governments exercise authority by way of the law and are themselves
subject to the law’s constraints.
The citizens of a democracy submit to the law because they recognize that, however
indirectly, they are submitting to themselves as makers of the law. When laws are
established by the people who then have to obey them, both law and democracy are
served.
Spanish Constitution (art.9)

1. Citizens and public authorities are bound by the Constitution and all other
legal provisions.
.3. The Constitution guarantees the principle of legality, the hierarchy of legal
provisions, the publicity of legal statutes, the non-retroactivity of punitive provisions
that are not favourable to or restrictive of individual rights, the certainty that the rule
of law shall prevail, the accountability of public authorities, and the prohibition of
arbitrary action of public authorities
Principles:
- The separation of powers between the legislature, the executive and the judiciary.
- The law is made by representatives of the people in an open and transparent way.
- The law and its administration is subject to open and free criticism by the people,
who may assemble without fear.
- The law is applied equally and fairly, so that no one is above the law.
- The law is capable of being known to everyone, so that everyone can comply.
- The judicial system is independent, impartial, open and transparent and provides a
fair and prompt trial.
- All people are presumed to be innocent until proven otherwise and are entitled to
remain silent and are not required to incriminate themselves.
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- No one can be prosecuted, civilly or criminally, for any offence not known to the
law when committed.
- No one is subject adversely to a retrospective change of the law.
Due Process
Definition:
Fundamental procedural legal safeguards of which every citizen has an absolute right
when a state or court purports to take a decision that could affect any right of that
citizen.
The most basic right protected under the due process doctrine is the right to be given
notice and an opportunity to be heard (audi alteram partem), and the right to an
impartial judge (nemo judex in parte sua).
Spanish Constitution (art. 24.1):

1. All persons have the right to obtain effective protection from the judges and
the courts in the exercise of their rights and legitimate interests, and in no case may
there be a lack of defense.
2. Likewise, all have the right to the ordinary judge predetermined by law; to
defense and assistance by a lawyer; to be informed of the charges brought against them;
to a public trial without undue delays and with full guarantees; to the use of evidence
appropriate to their defense; not to make self-incriminating statements; not to
plead themselves guilty; and to be presumed innocent.
The law shall specify the cases in which, for reasons of family relationship or
professional secrecy, it shall not be compulsory to make statements regarding
allegedly criminal offences
History and development:
Due process first appeared as a term in law in an English statute of 1354 and in
reference, generally, to the Magna Carta of 1215, which stated:
"No free man shall be taken or imprisoned or disseized or exiled or in any way
destroyed, nor will we go upon him nor send upon him, except by the lawful judgment
of his peers or by the law of the land"
It was Edward III who signed the statutes which entrenched the concept into the
common law; first, the 1354 Liberty of Subject Act (28 Edward 3):
"No man of what estate or condition that he be, shall be put out of land or tenement,
nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in
answer by due process of the law.”
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Fourteen years later, the Observance of Due Process of Law Act (42 Edward 3):
"At the request of the Commons by their petitions put forth in this Parliament, to
eschew the mischiefs and damages done to divers of his Commons by false accusers,
which often times have made their accusations more for revenge and singular benefit
than for the profit of the King, or of his people, which accused persons, some have been
taken and caused to come before the King’s council by writ, and otherwise upon
grievous pain against the law, it is assented and accorded, for the good governance of
the Commons, that no man be put to answer without presentment before justices or
matter of record or by due process and writ original, according to the old law of
the land; and if anything from henceforth be done to the contrary, it shall be void in the
law, and holden for error.”
The drafters of the American Constitution referred to due process; that the
government must use due process of law in any process which might deprive a person
of life liberty or property.
Development:
In 1897, the courts ruled that due process meant that the government had to justly
compensate any person from whom they expropriated property.
In 1932 (Powell v Alabama 287 US 45) and 1963 (Gideon v Wainwright 372 US 335
(1963)), the requirements that the government had to provide legal counsel for indigent
defendants, then any defendant facing a felony, and, finally, any defendant facing a jail
sentence, were all eventually read-in to the requirement for due process.
In Powell v Alabama, Justice Sutherland wrote:

"Let us suppose the extreme case of a prisoner charged with a capital offence, who is
deaf and dumb, illiterate and feeble minded, unable to employ counsel, with the
whole power of the state arrayed against him, prosecuted by counsel for the state
without assignment of counsel for his defense, tried, convicted and sentenced to death.
Such a result, which, if carried into execution, would be little short of judicial murder, it
cannot be doubted, would be a gross violation of the guarantee of due process of law;
and we venture to think that no appellate court, state or federal, would hesitate so to
decide.
"The duty of the trial court to appoint counsel under such circumstances is clear,
as it is clear under circumstances such as are disclosed by the record here; and its power
to do so, even in the absence of a statute, cannot be questioned."
Writing his own opinion but following the majority decision, Justice Clark of the US
Supreme Court, in Gideon v Wainwright, wrote:
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"... the Constitution makes no distinction between capital and noncapital cases. The
Fourteenth Amendment requires due process of law for the deprival of "liberty" just as
for deprival of "life," and there cannot constitutionally be a difference in the quality
of the process based merely upon a supposed difference in the sanction involved."
Similar in many regards to what other common law jurisdictions refer to as

administrative law or rules of natural justice, due process has also come to mean that
the government, before making any decision which might deprive a citizen of
liberty or property, must give notice of the Government's case, afford to the citizen
an opportunity of being heard and thus to accommodate a hearing even, in some cases,
a trial before an impartial arbitrator.
Due process has also come to mean that statutes must be precise.
If the government is going to restrict activity, it must be clear about what activity is
being restricted.
Substantive due process and procedural due process
In general, substantive due process prohibits the government from infringing on

fundamental constitutional liberties. By contrast, procedural due process refers to the
procedural limitations placed on the manner in which a law is administered, applied, or
enforced. Thus, procedural due process prohibits the government from arbitrarily
depriving individuals of legally protected interests without first giving them notice and
the opportunity to be heard.
Substantive Due Process

Substantive Law: creates, defines, and regulates rights,
Substantive Due Process: is concerned with rights (right to honor, right to privacy,
freedom of speech, freedom of religion, etc...)
Procedural due process

Procedural law enforces those rights or seeks redress for their violation (the right to
adequate notice of a lawsuit, the right to be present during testimony, the right to an
attorney, etc...)
The following rules have been established by constitutional democracies:
- No one’s home can be searched by the police without a court order showing that there
is cause for such a search.
- No person shall be held under arrest without explicit, written charges that specify the
alleged violation.
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- Persons charged with crimes should not be held in prison for protracted periods before
being tried. They are entitled to a speedy and public trial and to confront and question
their accusers.
- Authorities are required to grant bail, or conditional release, to the accused pending
trial if there is little likelihood that the suspect will flee or commit other crimes.
- Persons cannot be compelled to be witnesses against themselves. The police may not
use torture or physical or psychological abuse against suspects under any circumstances.
- Persons shall not be subject to double jeopardy, i.e. they cannot be charged with the
same crime a second time if they have once been acquitted of it in a court of law.
- Cruel punishments are prohibited.

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What are the principles of the rule of law?

What does due process entail?

Rule of law and Due Process

(Source: Duhaime's Law Dictionary, Concepts and principles of democratic

Spanish Constitution (art.9)

Spanish Constitution (art. 24.1):

History and development:

In Powell v Alabama, Justice Sutherland wrote:

Similar in many regards to what other common law jurisdictions refer to as

Substantive due process and procedural due process

In general, substantive due process prohibits the government from infringing on

Substantive Due Process

Procedural due process

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