Proceduralism justifies the operation of rules, decisions and institutions by reference to the validity of the process through which they are established, as opposed to the substantive outcome of the process ; adherence to established procedure in a proceduralist system is of paramount importance. Proceduralist judicial processes and systems are ones that derive their sense of fairness from whether procedures used in determining each decision were consistent and fair. As long as the judicial process followed the established rules strictly, the outcome is considered to be fair, regardless of its substantive ‘goodness’. Such systems prioritise procedural fairness, which is achieved when the formalities that outline any procedure are strictly followed. Antithetically, a process that focuses on substantive outcomes prioritises the actual goodness of judicial decisions. The debate surrounding proceduralist systems and whether or not they provide sufficient protection of rights necessitates discussion of how a proceduralist system safeguards certain liberties while compromising on others. In order to understand the value of a proceduralist judicial system however, caution must be paid to the arbitrariness that arises when procedural guidelines are disregarded. The following essay explores the shortcomings of proceduralist systems in protecting rights and the pernicious effects that a system void of procedural consistency can have on rights protection.
I ABORIGINAL AUSTRALIANS AND PROCEDURAL INADEQUACIES
This segment of the essay discusses the various ways in which the proceduralist system that many courts adhere to, vis-à-vis the jury system, disadvantages minority populations.
Jury trials form a significant part of the judicial process – juries represent democratic integrity and are touted as the conscience of the criminal justice system. They serve as tempers to the harshness of the criminal law and as bulwarks against unchecked government power. Selection of a panel, in various jurisdictions, is guided by the principle of representative jury. This principle underscores the idea that is it only fair for a defendant to be evaluated by his ‘peers’, people who are equal to him in legal status, background, and social status.
The following section explores why, given the strict adherence to procedures of jury selection and courts’ resistance to dismissing juries on the grounds of racism , the judicial system is unable to afford Indigenous Australians the same protection that is given to white Australians.
A The Jury System’s Failure To Protect Indigenous Rights
Jury selection in Australia is guided by set laws which outline eligibility for jury duty and the Cheatle principle that juries must be comprised of a representative section of the community. Although these rules do not explicitly discriminate against Indigenous people, that is in fact, the consequence of the system. The overrepresentation of Indigenous convicts in the criminal justice system coincides with the law that disqualifies those with criminal records from jury duty to result in an extremely small population of Indigenous persons who are eligible for service . This is compounded by the fact that many Indigenous people live in areas with little access to reliable postal services , have lower levels of English literacy , are affected by chronic illness and injury deaths in higher rates than white Australians, and often are reluctant to involve themselves in jury duty because of the implications it has on community standing , the number of Indigenous persons who can actually serve on a jury is miniscule. The high numbers of Indigenous defendants and the small number of Indigenous jurors manifests in trials of Indigenous defendants lacking Indigenous juror representation; the composition of Australia’s population means that all-white juries in the trial of Indigenous defendants are frequent occurrences.
An all-white jury is simply not representative of an Indigent offender’s community – they cannot perceive the unique circumstances of an Indigenous person’s offending and do not relate to their moral or world view. The very fact that a white juror will almost always be unable to understand or situate the Indigenous defendant in his unique circumstances because of the deep divide and disconnect between the two races and that this will no doubt result in a conviction lacking understanding or empathy, which are the main roles of the jury, seems ample reason to demand change of juror selection legislation. By maintaining these rules, and failing to make accommodations so that that Indigent offenders can be evaluated by people who are able and willing to understand their circumstances, the jury and court institutions are disengaged from Indigenous lives and fail to be the system of protection for rights for Indigenous people that it is for white Australians.
It is clear that Australian courts prioritise maintaining consistency of procedure over the protection of rights for Aboriginal Australians and this is evinced in how challenges to the jury by Indigenous Australians on the grounds of racial prejudice are almost always dismissed. In an overwhelming number of cases, Australians courts, in spite of overwhelming evidence that there was bias against Indigenous Australians in the communities from which jurors were selected, dismissed challenges to all-white juries citing that as long as the selection adhered to the legislated procedure, it was a fair process and there was no basis for a challenge . In doing so, and in maintaining that juries are colour-blind regardless of its composition , the courts not only fail to understand the potential for a white jury to be prejudicial against an Aboriginal defendant but further entrench the marginal position of Indigenous people in relation to the judicial system.
Maintaining a pretence of colour-blindness and refusing to acknowledge racism perceived by Indigenous people not only denies the historical context of white domination and Black subordination, it perpetuates the view that the white perspective is racially normative, discrediting the experiences of Indigenous persons and entrenching a system that deprives Indigenous Australians the rights that are readily granted to their white counterparts. The rule that jury challenges are only valid where there is a deliberate, obvious attempt to create a racially biased jury is flawed because it negates the effects that personal biases of jurors, albeit lawfully chosen, have on the conviction. In spite of acknowledgement that the unique position of Indigenous people in relation to white Australians gives rise to distorted social relations that, courts perceive these distortions as ‘neutral and fair’ regardless of how ‘unequal and unjust’ they might be in substance.
Ultimately, what the proceduralist nature of the system results in is an uneven protection of rights for Indigenous Australians in comparison to white Australians. Courts claim that the jury system accounts for cultural diversity through mechanisms such as the representation requirement – however, the size of the Indigenous population, along with the many factors that disqualify large groups of them from jury service, means that Indigenous offenders often face non-Indigenous jurors and resistance to tweak the system to better suit their needs enforces the ‘fairness’ of the process. Secondly, the belief that a jury selected based on legislative rules will be an impartial jury dismisses the apprehension of Indigenous defendants who have repeatedly expressed experiencing prejudice and again, entrenches the system that upholds these inequalities.
The insistence of maintaining judicial procedures that have consistently produced unequal outcomes exacerbates the disenfranchisement that Indigenous people have long experienced. More importantly, judicial processes that remain unobliging to the unique circumstances of Indigenous persons and ignorant to the bias that marginalised, minority populations face in general, will never be able to safeguard the rights of minority people the way they should, leading to a disparity in the rights that minority and majority populations are afforded.
The failure of proceduralist judicial systems, through the rigid adherence to established guidelines, to protect minority rights with the same vigour that majority rights are safeguarded begs the question of whether morality and substantive goodness of outcomes should guide judicial practice instead. Whilst proceduralist judicial system is able to ensure a consistency to judicial reasoning and legitimates the system for the majority whose rights are protected by it, perhaps circumstantial rules that are guided by the desired outcomes will be better suited to safeguard the rights of all, rather than most.
II DUE PROCESS AND AMERICA’S MANAGEMENT OF TERRORIST THREATS
The following segment exemplifies why enforcing proceduralist practices by ensuring that judicial practice follows legislated guidelines is critical to consistent judicial reasoning and adequate protection of rights.
The right to due process is an inalienable right embedded in not one but two amendments of the American constitution. It holds that a fair hearing must be provided before any restriction of liberty; imprisonment before or without trial must be a carefully limited exception. In the U.S. however, especially and increasingly during national security crises, the constitutionally entrenched protection of liberty has given way to circumstantial due process – the requisite level of protection of a person’s liberty is determined in relation to how important a conviction is to national security, rather than by reference to a set of rules.
A Consequences of Circumstantial Due Process
The principle of circumstantial due process resultant from the lax enforcement of established principles and rules according to varying circumstance has allowed the American government to commit egregious violations of basic rights, especially in wartimes. The Korematsu case, which endorsed the internment of over 100,00 people during the Second World War with the sole basis for detaining them being their Japanese ancestry, is testament to the unreasonable nature of infringement of basis civil liberties that can and have occurred as a resulted of the ease with which the American judiciary alters rules. The decision in the Korematsu case was motivated by the uncertainty that the attack on Pearl Harbour caused – the judiciary, set out to uphold the segregation of Japanese Americans, because of the belief that they were a security threat; the decision was motivated by an arguably irrational fear and prejudice – there was no actual legal foundation for the decision. By allowing desired outcomes, rather than established procedure, to motivate judicial practice, the U.S courts set precedent for ample infractions of rights, leading to an extremely compromised, often utterly absent system of protection.
Due process is a promise that before a citizen is deprived of “life, liberty of property” government must adhere to fair procedures. The due process clause reflects a commitment to legality that is the core of all modern legal systems. The court in Goldberg v Kelly defined the bounds of due process – the state must provide a hearing before an impartial judicial officer, the right to assistance from an attorney, the right to give evidence, the opportunity to examine all materials, and to question adverse witnesses. Whilst paying heed to the factors that make due process fair, it is critical to note that what is due process inevitably depends on the situation. As exemplified in the earlier example of Aboriginal Australians and their struggle with judicial process, the question of what is “due” cannot be resolved with a single answer – what is due is dependent entirely on the circumstances of each case. To take people as they are is the only way to afford each individual the protection they require. Whilst acknowledging that genuine national security threats and the immense, immediate danger they pose might be valid reasons for preventative detention and the occasional skirting of due process laws, the U.S administration, in its attempt to tackle threats to national and international security, has in many instances, utterly obliterated the due process clause, offering certain defendants no semblance of fundamental rights – suspected criminals are detained with no charges, denied access to counsel and other fundamental procedural safeguards.
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