A short reflection on the unintended political consequences of the right of due process

Some days ago, The Economist published an article about the spread of the morality councils in the villages of China, whose members meet to praise the ones who they regard as well-behaved and humiliate the others who don’t. The publication used its characteristic sense of irony by pointing out that, finally, the highest ranks of the villagers found a way to exercise their “right to speak”.

Nevertheless, the said irony might lead us to a different kind of reflection on the political right to speak and the rights of due process, such as public hearings, an impartial tribunal, and an opportunity to be heard. Public hearings and impartiality are interrelated since it would be much harder for a tribunal to deliver an arbitrary adjudication if it is overseen by the society. But the public watch of the trials and the right to be heard are even more interrelated. Through these devices, the whole civil society wields the power to take notice of both the claims of the prosecution and of the ones of the prosecuted individuals, and, thus, form its judgment about the impartiality of the tribunal.

Moreover, public hearings endow the prosecuted individuals with the opportunity to exert their political right to speak without any restraint. In a political context of heavy or increasing authoritarianism, any procedures -even the one of a morality council- could resound with the voice of the contrarian. Thus, the right of due process could have -although unintended- political consequences.

Daron Acemoglu and James A. Robinson relate a poor justice system with the causes of why nations fail, exemplified by government exerting their interference over the judiciary power. Thus, extractive political institutions encroach upon the economic institutions, turning them extractive as well. Nevertheless, defending the procedural rights of the due process could work as a way to contribute to restore both inclusive political and economic institutions.

Of course, a tight authoritarian regime, such as China’s, is aware of the political consequences of free speech, even in the realm of a judiciary process. However, this insight could be profited by the countries where democracies are feeble but still exist. Promoting oral and public judiciary procedures, even for the most insignificant matters, and the right of the prosecuted individual to be heard is not just an issue of lawyers, but acquire a political dimension. The rights of due process endow the civil society with powerful tools to get familiar with main strands of the Rule of Law and the dissidents with the opportunity to exercise their own right to speak.

The immunities of the due process have a long history of discovery and extension to all human beings, beginning with the Magna Carta Libertarum of 1215, that is not fulfilled to this day. It should be something to be pondered that they are historically previous to Modern democracy. Surely, they are a logical condition as well.

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