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Four Models of Due Process: Victor V. Ramraj
Four Models of Due Process: Victor V. Ramraj
1. Introduction
Human rights watchdogs inform us that extrajudicial executions continue to
be used by many states to exercise control over their citizens.1 Agents of the
state are sent to apprehend political enemies, who are dealt with brutally and
sometimes tortured before being executed. No trial is held, no court passes
judgment, and no law authorizes the execution. In these cases, the rule of law
has run amok. Extrajudicial killings do not conform even to the narrowest,
formal definition of rule of law, which insists only that state action find some
authorization in law duly enacted.2 What is absent in these cases (from a legal
perspective), and what excludes them from any claim to membership in a
constitutional order, is even the barest requirement of due process. A consti-
tutional due process guarantee defines and limits the state’s ability to deprive
a person of life or liberty and ensures that any state-ordered execution or
detention is duly authorized by law.
The constitutions of most modern states include some form of due process
guarantee. What is surprising, however, is the extent to which the highest
courts of these states differ in their understanding of the minimum requirements
of due process. A survey of the constitutional jurisprudence of Singapore,
* Faculty of Law, National University of Singapore. I acknowledge with gratitude a grant from the National
University of Singapore, which made the research for this article possible. I am also indebted to the
participants in my staff seminars at the National University of Singapore in May 2001 and April 2002 and
at the University of Calgary in December 2001 for their insightful and provocative comments on various
aspects of this paper, and to the students in my Comparative Constitutional Law seminar at the National
University of Singapore during the 2001–2002 academic year for many stimulating exchanges regarding
due process and comparative constitutional law theory. In particular, I am grateful to Molly Lien, Sandra
Meadow, Ng Pei Suin, and Kent Roach for their comments on an earlier draft of this article. Any errors,
however, are entirely my own.
1
For instance, according to Amnesty International’s Annual Report Summaries 2001, confirmed
or possible extra-judicial executions were carried out in sixty-one countries in 2000. See Amnesty
International, Annual Report 2001, available at http://web.amnesty.org/web/ar2001.nsf/
regSUM/regSUM?OpenDocument.
2
Paul Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, 1997
PUB. L. 467, 467 (explaining that “[f]ormal conceptions of the rule of law do not however seek to
pass judgment upon the actual content of the law itself. They are not concerned with whether the
law was in that sense a good law or a bad law, provided that the formal precepts of the rule of law
were themselves met”).
© Oxford University Press and New York University School of Law 2004, 492
I.CON, Volume 2, Number 3, 2004, pp. 492–524
Four models of due process 493
India, the United States, South Africa, and Canada reveals four distinct
approaches to due process and, thus, to the ability of the state to deprive a
person of life or liberty. The first, or formal, model insists only that the deprivation
be authorized by law. The sole issue on judicial review would be whether the
law authorizing the deprivation of life or liberty has been duly enacted by the
appropriate legislative or executive body. The second, or procedural, model
imposes limits on the deprivation of life or liberty based only on principles of
procedural fairness. It would require, for instance, a fair trial by an independ-
ent and impartial decision maker through the articulation of norms for
procedural fairness, but would not inquire into the substantive reasons
for depriving the person or life or liberty. A third, or procedural-privacy,
model imposes limits that are not only procedural, but also substantive in the
limited sense that they impose constraints on the ability of the state to inter-
fere with individual privacy or autonomy. Even before compliance with
procedural norms comes into question, there are substantive “due process”
limits on the sort of conduct that can properly be criminalized. Finally, a full
procedural-substantive model—or, for short, a substantive model—imposes lim-
its that are both procedural and substantive, not only in the sense that they
impose constraints on what conduct may be criminalized (abortion, for exam-
ple) but also in the sense that they impose constraints on the principles of
mens rea or criminal fault; in jurisdictions following this model, the state can
subject to punishment only those persons who are morally to blame for their
conduct.
The central claim of this article is that only the substantive model is
normatively defensible. The procedural and procedural-privacy models both
rely on unprincipled line-drawing. The procedural model struggles to maintain
a false distinction between procedural and substantive fairness; the proce-
dural-privacy model, to the extent that it is substantive, attempts to draw a line
between questions of criminalization and of fault. Neither model does so in a
principled, non-arbitrary way. Only the formal and substantive models stand
out as both principled and coherent. But the choice between these two models
depends on more fundamental questions about the nature of constitutional-
ism and the rule of law, the role of the judiciary, and the extent to which
particular cultural norms, such as “Asian values,” should have a bearing on
constitutional interpretation.
This article begins by describing the four models of due process using
illustrations from constitutional law jurisprudence. The second part of the
article examines the tensions within the procedural and procedural-privacy
models and argues that neither model provides a principled justification for
delimiting due process. After explaining why the formal and full substantive
models are the only principled, coherent choices, the third part of the article
considers the arguments in support of a formal approach and the specific
normative choices that this approach entails. Finally, an affirmative argument
is advanced in support of the substantive model, based on the need for coherence,
consistency, and predictability in the criminal law.
494 V. V. Ramraj
2. Four models
The object of this part is to describe four interpretive models that are used by
the courts of Singapore, India, South Africa, the United States, and Canada
when interpreting constitutional due process provisions. At this juncture, two
preliminary methodological questions arise: What are the provisions that are
being compared, and what makes them comparable?3 Since it is “possible to
compare anything with anything else,”4 it is important to understand at the out-
set what is being compared and why.
The starting point for this exercise in comparative constitutional law is
the following question: What general limitations does a particular constitution
impose on the ability of the state to deprive a person of life or liberty? The five
jurisdictions in question provide:5
Singapore: “No person shall be deprived of his life or personal liberty save
in accordance with law.”6
India: “No person shall be deprived of his life or personal liberty except
according to procedure established by law.”7
United States: “No person . . . shall be deprived of life, liberty, or property,
without due process of law . . .” (due process clause in the Fifth Amendment
that applies to the federal government) and “No State shall . . . deprive any
person of life, liberty, or property, without due process of law . . .” (due
process clause in the Fourteenth Amendment that applies to the states).8
South Africa: “Everyone has the right to freedom and security of the
person, which includes the right . . . (a) not to be deprived of freedom
arbitrarily or without just cause.”9
3
There is, of course, a third methodological question: Why choose these specific jurisdictions? Not sur-
prisingly, part of the answer lies in the background of the author: I am a common law-trained lawyer
who practiced in Canada before moving to Singapore where I now teach in the Faculty of Law at the
National University of Singapore. However, inevitable personal factors aside, there were good legal
reasons for examining these jurisdictions: the United States is perhaps the most prolific jurisdiction
when it comes to due process and constitutional law; the wording of the “due process” provision of
the Indian Constitution is similar to the corresponding provision in the Singapore Constitution; South
Africa has a new and dynamic constitution and, because of its recent history, is a jurisdiction that is
very much attuned to rights issues which (as we shall see) are interpreted in a boldly comparative way.
4
FRANÇOIS VENTER, CONSTITUTIONAL COMPARISON: JAPAN, GERMANY, CANADA, AND SOUTH AFRICA AS
CONSTITUTIONAL STATES 44 (Juta 2000).
5
In respect of each jurisdiction, the limitation on the ability of the state to deprive the person of
life or liberty is set out in italics.
6
SING. CONST. art. 9(1).
7
INDIA CONST. art. 21.
8
U.S. CONST. amends. V, XIV, § 1.
9
S. AFR. CONST. (1996) § 12(1)(a). Note that the right to life is protected separately, in section 11,
and is not qualified: “Everyone has the right to life.” Id. § 11. On the basis of section 11, the death
Four models of due process 495
Canada: “Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.”10
The common thread in these provisions is that they impose general constraints on
the ability of the state to deprive a person of life or liberty. In terms of their func-
tion,11 they serve this same basic purpose, and in terms of their underlying nor-
mative premise, they seem to embody the same basic notion of limited
government.
There are, of course, additional clauses in each of these constitutions that
confer specific rights in relation to the criminal process.12 But the provisions in
question state a broader limiting principle, the parameters of which are the
subject of this paper. There are also important questions as to whether
the precise text of these provisions makes a difference as to their meaning.
However, for the nonce, I remain agnostic on this point, and I use “due
process” to refer broadly to those provisions that impose general limitations on
the ability of the state to deprive a person of life or liberty, whether or not they
use those precise words.
Now that we have seen what it is that we are comparing we might usefully
ask why we should bother to compare them. The answer to this question is
twofold. First, by comparative analysis, we may better understand the inter-
pretive choices that are open to the courts in each of these jurisdictions. This
part of the paper suggests that there are at least four interpretive options
available to the courts before legal and normative considerations are taken
into account. Second, the comparative process allows us to investigate more
effectively the reasons for, and implications of, adopting one approach over
another. This is the task of the second, third, and fourth parts of the paper.
One last preliminary point before we turn to the models: the four models
do not correspond exactly to the particular jurisdictions we are considering.
penalty was struck down by the South African Constitutional Court in State v. Makwanyane, 1995
(3) SALR 391 (CC).
10
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as
Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, § 7 [hereinafter Charter].
11
According to KONRAD ZWEIGERT & HEIN KÖTZ, AN INTRODUCTION TO COMPARATIVE LAW 36 (Tony Weir
trans., 3d ed., Clarendon Press 1998), the “function is the starting point and basis of all
comparative law. . . . [D]ifferent legal systems can be compared only if they solve the same factual
problem.”
12
One example is the right to counsel, as provided for in Singapore by article 9(3) (the right “to
consult counsel and be defended by a legal practitioner, of his choice”); in Canada by section 10(b)
of the Charter (the right “to retain and instruct counsel without delay and to be informed of that
right”); in South Africa by sections 35(2)(b) and (3)(f) (the right, if detained or tried respectively,
“to choose, and consult with, a legal practitioner and to be informed of this right promptly”); in
the United States by the Sixth Amendment (the right of the accused in all criminal cases “to have
the Assistance of Counsel for his defense”).
496 V. V. Ramraj
13
[1995] 1 S.L.R. 617 (C.A.).
14
SING. CONST. art. 9, § 1.
15
Ong Ah Chuan v. Public Prosecutor, [1981] 1 M.L.J. 64 (PC); Haw Tua Tau v. Public Prosecutor,
[1981] 2 M.L.J. 49 (PC).
16
Jabar, [1995] 1 S.L.R. at 631. A similarly formalistic approach to due process is taken by the
Malaysian Court of Appeal in an environmental law case, Ketua Pengarah Jabatan Alam Sekitar v.
Kajing Tubek, [1997] 3 M.L.J. 23. On the substantive question of whether the authorities were
entitled to proceed with the construction of a dam, which had been approved under state law but
not under Malaysian federal environmental legislation, the Court of Appeal held that federal
legislation did not apply. However, the Court of Appeal went on to address the question of whether
the respondents, natives of Sarawak, who would be deprived of their livelihood by the construc-
tion of the dam, had locus standi to bring the action. One of the reasons given by the court for
denying standing was that the deprivation of their livelihood was not contrary to article 5(1) of
the Malaysian Constitution. This provision, which is identical in wording to article 9(1) of the
Singapore Constitution, provides that no person “shall be deprived of his life or personal
liberty save in accordance with law.” (The word “life” in article 5(1) is understood to include a
person’s livelihood or way of life.) The Court of Appeal held that there was no constitutional
violation here since, “in this instance, life is being deprived in accordance with an existing and
valid law.” Id. at 43.
Four models of due process 497
procedural model of due process can be seen in a line of cases rejected by the
Singapore court in Jabar and a recent line of cases interpreting article 21 of the
Indian Constitution.
In the decade before Jabar, during which time the Privy Council remained
the court of last resort for Singapore, the interpretation of article 9(1) was
markedly different. In the 1981 Ong Ah Chuan decision,22 the issue before the
Privy Council was whether a statutory presumption of trafficking, which
arose on proof of possession of more than a specified amount of a controlled
drug (more than two grams of heroin), was contrary to article 9(1) of the
Singapore Constitution. It was argued by the Public Prosecutor that the
requirement that no person be deprived of his life or personal liberty “save in
accordance with law” would be satisfied if the deprivation were carried out in
accordance with “any Act passed by the Parliament of Singapore, however
arbitrary or contrary to fundamental rules of natural justice the provisions of
such Act may be.”23 Lord Diplock, rejecting the formal model of due process,
held that the reference to “law” in article 9(1) refers “to a system of law which
incorporates those fundamental rules of natural justice that had formed part
and parcel of the common law of England that was in operation in Singapore
at the commencement of the Constitution.”24 These fundamental rules of
natural justice, he explained, include the principle that a person not be
punished for an offense “unless it has been established to the satisfaction of an
independent and unbiased tribunal that he committed it.”25 Ultimately, the
Council concluded that the statutory presumption in this case was not
contrary to the fundamental rules of natural justice; nonetheless, the norms
of procedural fairness established in the case continued to inform the inter-
pretation of article 9(1) at least until 1990 when the Council decided Jabar.26
A similar approach can be seen in the Indian jurisprudence interpreting
article 21 of the Indian Constitution. Article 21 provides that no person shall
be deprived of his life or personal liberty “except according to procedure estab-
lished by law.”27 The leading case is Maneka Gandhi v. Union of India.28 At issue
was the Passports Act, which empowered the government to impound pass-
ports for a number of reasons, including when the government deemed it
22
See Ong Ah Chuan, [1981] 1 M.L.J. 64 (P.C.).
23
Id. at 70.
24
Id. at 71.
25
Id.
26
Prior to Jabar, Ong Ah Chuan was followed in Haw Tua Tau, [1981] 2 M.L.J. 49 (an adverse infer-
ence drawn from the silence of the accused does not violate the fundamental rules of natural jus-
tice) and in Public Prosecutor v. Mazlan bin Maidun, [1993] 1 S.L.R. 512 (CA) (the right to silence is
not subsumed under the fundamental rules of natural justice).
27
INDIA CONST. art. 21.
28
A.I.R. 1978 S.C. 597.
Four models of due process 499
necessary to do so “in the interests of the general public.”29 The act did not
require that the authorities divulge the reason for the impoundment, nor did it
provide the person whose passport was impounded with an opportunity to be
heard. The petitioner brought a constitutional challenge on several grounds,
including the claim that the provisions of the act violated article 21 in that
they did not provide a procedure at all and that, alternatively, if they did, the
procedure was arbitrary and unreasonable. The Supreme Court of India read
article 21 together with article 14 (equality) and article 19 (fundamental
liberties) as embodying a broad, interrelated constellation of rights and held
that the procedure must be fair and reasonable, not “arbitrary, fantastic or
oppressive.”30 After Maneka Gandhi, the Indian court began to assume a more
activist stance in article 21 cases,31 using it to secure, among others, a right to
a speedy trial,32 and rights against handcuffing,33 delayed execution,34
custodial violence,35 and public hanging.36
The Indian Supreme Court has interpreted article 21 as a general guarantee
of procedural fairness, from which more specific procedural rights can be
derived. This interpretation is by no means unique. The constitutional
jurisprudence in the United States37 and Canada38 suggests that whatever the
29
C.I.S. Part II (1967), Passports Act 1967, § 10(3)(c), June 24, 1967.
30
A.I.R. 1978 S.C. at 622 (Bhagwati, J.).
31
See generally THE CONSTITUTION OF INDIA 37–43 (P. M. Bakshi ed., Universal Law Publishing 1999).
32
Sher Singh v. State of Punjab, A.I.R. 1983 S.C. 465; Hussainara v. Home Secretary, Bihar, A.I.R.
1979 S.C. 1360.
33
Sunil Gupta v. State of Madhya Pradesh, (1990) 3 S.C.C. 119.
34
Sher Singh, A.I.R. 1983 S.C. 465.
35
Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675.
36
Attorney General v. Lachma Devi, A.I.R. 1986 S.C. 467.
37
DUCAT & CHASE, supra note 21.
38
See, e.g., Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486 (Can.) (Lamer, J.)
(the specific rights enumerated in sections 8 to 14 of the Charter are illustrative, but not exhaus-
tive, of deprivations of life, liberty, and security of the person that are not in accordance with
principles of fundamental justice); R. v. Hébert, [1990] 2 S.C.R. 151 (Can.) (fundamental princi-
ples of justice are broad enough to encompass a detained person’s right to silence that was not
expressly set out elsewhere in the Charter). There is some question as to whether section 12 of the
South African Constitution includes a residual element. See S. AFR. CONST. (1996) § 12; Johan de
Waal, Revitalising the Freedom Right? De Lange v. Smuts NO 1998 (3) S.A. 785 (CC), 15 S. AFR. J.
HUM. RTS. 217 (1999) (arguing that, after the Constitutional Court’s decision in Nel v. Le Roux NO,
1996 (4) BCLR 592, 601, the right to freedom of the person will not perform the function of a
general and residual right to procedural fairness). But see Victor V. Ramraj, Freedom of the Person
and the Principles of Criminal Fault (2002) 18 S. AFR J. HUM. RTS. 225 (suggesting that, in contrast
with Nel v. Le Roux N.O., supra, which was decided under s. 11 of South Africa’s interim
Constitution, it remains open to the Constitutional Court to come to a different conclusion under
the different wording in s. 12 of the 1996 Constitution).
500 V. V. Ramraj
45
O’Connor J., who concurred with the majority in the result, did not join the majority in over-
ruling Bowers v. Hardwick. See infra note 46 at 2484.
46
Lawrence v. Texas, 123 S. Ct. 2472 (2003).
47
Id. at 2480. Even before Lawrence, though, the Supreme Court had, at least in refusal-of-treat-
ment cases, moved away from the language of constitutional privacy rights in favor of the equally
broad concept of a “liberty interest.” According to Chief Justice Rehnquist in Cruzan v. Director,
Missouri Department of Health, 497 U.S. 261, 278 (1990), the “principle that a competent person
has a constitutionally protected liberty interest in refusing unwanted medical treatment may be
inferred from our prior decisions.”
48
Lawrence, 123 S. Ct. at 2489.
49
Charter, supra note 10, § 7.
50
Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. at 498–99 (Lamer, J.).
51
[1988] 1 S.C.R. 30, 166.
502 V. V. Ramraj
52
Godbout v. Longueuil, [1997] 3 S.C.R. 844, 893 (LaForest, J.) (L’Heureux-Dubé and McLachlin,
J.J., concurring).
53
[2000] 2 S.C.R. 307, 343.
54
I refer to this approach to due process elsewhere as the “criminal fault” branch of substantive
due process. See Ramraj, supra note 38. It might therefore be suggested that there are three
models of due process, of which the procedural-privacy model and the substantive model are
but two “branches” or “components.” I am not sure that very much turns on the choice
among these approaches, but for the purposes of this paper describing them as “models”
more accurately reflects a fundamental conceptual (but, as I argue, not a normative) difference
as well as a difference in practice as between the U.S. courts and the Canadian and South
African courts.
55
The privacy or autonomy aspect of substantive due process is less developed in South Africa
and may well remain so since the right to privacy is separately enumerated elsewhere in the Bill
Four models of due process 503
of Rights in the South African Constitution. See S. AFR. CONST. (1996) § 14; National Coalition for
Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SALR 6 (CC). However, to the extent
that constitutional rights overlap (as for instance do “privacy” and “dignity” in South Africa),
there is no good reason to think that section 12(1)(a) could not also encompass a right to privacy
or autonomy.
56
Godbout, [1997] 3 S.C.R. at 893.
57
Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486.
58
Id. at 310.
59
R. v. Vaillancourt, [1987] 2 S.C.R. 636 (Can.).
60
R. v. Martineau, [1990] 2 S.C.R. 633 (Can.).
61
R. v. Logan, [1990] 2 S.C.R. 731 (Can.).
62
See, e.g., R. v. Robinson, [1996] 1 S.C.R. 683 (Can.) (common law rules based on DDP
v. Beard infringe section 7 by requiring that the accused raise a reasonable doubt about his or
her capacity to form a specific intent as the accused could be convicted despite reasonable doubt
as to actual intent); R. v. Daviault, [1994] 3 S.C.R. 63 (Can.) (common law principle that
intoxication was not a defense to crimes of general intent infringes section 7 since an accused
could be convicted who did not act voluntarily or who lacked the minimum intent for general
intent offenses).
63
See generally Kent Roach, The Effects of the Canadian Charter of Rights on Criminal Justice, 33
ISR. L. REV. 607, 633–35 (2000).
504 V. V. Ramraj
general limitation clause in section 164 of the Charter “only in cases arising
out of exceptional conditions, such as natural disasters, the outbreak of war,
epidemics and the like.”65
In similar fashion to the early section 7 jurisprudence in Canada, the South
African Constitutional Court has also scrutinized the principles of criminal
fault under its due process clause,66 albeit with some reservations. For
instance, in S v. Coetzee, Justice O’Regan framed the test for the constitutional
validity of the standard of criminal fault cautiously, stating that it is “only
when the Legislature has clearly abandoned any requirement of culpability, or
when it has established a level of culpability manifestly inappropriate to the
unlawful conduct or potential sentence in question, that a provision may be
subject to successful constitutional challenge.”67 However, it is clear from the
South African jurisprudence that the Constitutional Court will, under section
12(1)(a), consider both the procedural and the substantive fairness of legisla-
tion under its due process clause68 and that the standard of criminal fault will
be subject to constitutional scrutiny.69
In terms of a constitutional doctrine of criminal fault, the Canadian and
South African courts have gone much further than the U.S. Supreme Court,
which flirted only briefly with the notion of a constitutional due process
constraint on the principles of criminal fault in a 1957 case, Lambert v.
California.70 The defendant was charged under a provision in the Los Angeles
Municipal Code that made it an offense for any convicted person to remain in
Los Angeles without registering. Lambert, a Los Angeles resident who had
been convicted of forgery, was charged with a violation of this law, even
though she had no knowledge of the registration requirement. Justice Douglas
found that the defendant “on first becoming aware of her duty to register was
given no opportunity to comply with the law and avoid its penalty, even
64
Charter, supra note 10, § 1 (“The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demon-
strably justified in a free and democratic society”).
65
Suresh v. Canada, (2002) 208 D.L.R. (4th) 1, 39, citing Reference re Section 94(2) of the Motor
Vehicle Act, [1985] 2 S.C.R. at 518.
66
State v. Makwanyane, 1995 (3) SALR 391.
67
1997 (3) SALR 527, 597 (CC). A similarly cautious approach is taken by the Constitutional Court
in Thebus v. S., Judgement No. CCT36/02 (28 August 2003), § 36, in which it acknowledges, with
reference to Coetzee, that the “entire scheme of sections 35 and 12(1) of the Bill of Rights authorises
and anticipates prosecution, conviction and punishment of individuals provided it occurs within the
context of a procedurally and substantively fair trial and a permissible level of criminal culpability,”
while at the same time upholding the common law doctrine of common purpose.
68
See Bernstein v. Bester, 1996 (2) SALR 751 (CC), 1996 (4) BCLR 449 (CC) (O’Regan, J.);
De Lange v. Smuts, 1998 (3) SALR 785 (CC).
69
See generally Ramraj, supra note 38.
70
355 U.S. 225 (1957).
Four models of due process 505
though her default was entirely innocent,”71 and held that the registration
requirement violated the due process clause. The majority judgment in this
case, which might have opened the door to a constitutional doctrine of criminal
fault, was criticized for its obscure reasoning by legal scholars such as Herbert
Packer, who urged the courts to articulate just such a doctrine.72 In any event,
the door to a constitutional doctrine of criminal fault was slammed shut in
a 1968 public drunkenness case, Powell v. Texas,73 in which the U.S. Supreme
Court, in the context of the prohibition against “cruel and unusual punish-
ment” in the Eighth Amendment, expressly rejected any wider implications of
Lambert, declaring unambiguously that the Supreme Court “has never articu-
lated a general constitutional doctrine of mens rea.”74 Subsequent decisions
have likewise rejected both Lambert and any expansion of due process to
include a constitutional doctrine of mens rea.75
71
Id. at 229.
72
See, e.g., Herbert L. Packer, Mens Rea and the Supreme Court, (1962) S.C. Rev. 107, 127–37. In his
conclusion, Packer urges the Supreme Court to develop a constitutional doctrine of mens rea,
under the banner of substantive due process that would at least prohibit strict liability: “Strict lia-
bility in the criminal law is irrational, in the substantive due process sense of the word. Mens rea
as extended to include negligence as a mode of culpability ought to find its way into constitutional
doctrine.” Id. at 152.
73
392 U.S. 514. The Supreme Court also distinguished the Eight Amendment case, Robinson v.
California, 370 U.S. 660 (1962), in which it held unconstitutional a statute making it a crime to be
addicted to narcotics. See id. at 532 (Marshall, J.). The holding in Robinson was regarded as being
limited to “pure status crimes” where no voluntary act is involved. Id. at 544 (Black, J.).
74
392 U.S. 514, 535 (1968). In a separate concurring opinion, Justice Black rejected the rule of
constitutional law urged upon the courts as it “would have a revolutionary impact on the criminal
law, and any possible limits proposed for the rule would be wholly illusory.” Id. at 544. While
openly sympathetic with the notion that it is “cruel and unusual to punish a person who is not
morally blameworthy,” he observes that “the question here is one of constitutional law” and that
the “legislatures have always been allowed wide freedom to determine the extent to which moral
culpability should be a prerequisite to conviction of a crime.” Id. at 544, 545. This deference to the
legislature might be explained, in part, by Justice Black’s underlying concerns about state auton-
omy and the “ancient faith based on the premise that experience in making local laws by local
people themselves is by far the safest guide for a nation like ours to follow.” Id. at 548.
75
Note, however, that a doctrine vaguely resembling a constitutional doctrine of mens rea might
nevertheless be resurfacing under the Eighth Amendment in death penalty cases. For instance, in
Tison v. Arizona, 481 U.S. 137 (1987), the majority confronted the issue of whether, in a homicide
case involving felony-murder and accomplice-liability laws, “the Eighth Amendment prohibits the
death penalty . . . [for] the defendant whose participation is major and whose mental state is one of
reckless indifference to human life.” Id. at 152. Although the majority upheld the impugned
provisions, it considered the petitioner’s “reckless disregard for human life,” albeit controversially,
as a “highly culpable mental state . . . that may be taken into account in making a capital sentencing
judgment.” Id. at 157–58. See also Enmund v. Florida, 458 U.S. 782 (1982) (referred to in Tison,
which reversed a death sentence imposed for felony-murder on the basis that penalty was
disproportionate to the personal culpability of the offender).
506 V. V. Ramraj
Concerns have been expressed in Canada that its Supreme Court has been
less rigorous in articulating a standard of criminal fault under the Charter than
it was when drawing upon common law in the pre-Charter era76 and it might
reasonably be argued that it has been rather arbitrary in limiting its review of
the standard of criminal fault to serious offenses involving a high degree of
stigma. But whatever the merits of this view, the model of fundamental justice
or substantive due process set out and applied by the Supreme Court of Canada
in the early jurisprudence—which has been echoed in the recent South African
jurisprudence but rejected by the U.S. Supreme Court in Powell v. Texas—repre-
sents a novel understanding of substantive due process, one that extends the
analysis beyond a concern for privacy or personal autonomy.77
there are textual arguments in favor of a procedural model of due process, two
problems emerge. First, it is not at all evident that the conceptual line between
procedure and substance is sufficiently clear to warrant drawing the line
at procedural due process. Second, even if a conceptual line could be drawn,
there may not be a convincing normative reason for doing so.
Is there a clear conceptual line between procedure and substance? As we have
seen, article 21 of the Indian Constitution provides that no person shall be
deprived of his life or personal liberty “except according to procedure established
by law.”81 In light of this specific reference to “procedure,” it might be assumed
that the Indian Constitution has drawn this line quite explicitly. But this assump-
tion is not borne out in Indian jurisprudence. The Indian courts, while con-
strained by the wording of article 21, nevertheless have developed doctrines that
allow them to consider such matters as the constitutional validity of the death
penalty.82 The courts seem to assume that the validity of the death penalty is a
question of procedure. But is it? On the one hand, it might be thought that the
death penalty is a matter of sentencing, which arises after substantive questions
relating to liability have been determined, and thus is merely procedural. On the
other, the relationship between the offense committed and the punishment
imposed goes to the fairness of the classification of the offense. If petty theft were
punishable by death, for example, then theft would be a much more serious
offense than if it were punishable only by a fine. At least in this respect, the line
between procedure and substance seems far from clear.83
Some theorists have even argued that procedural rights are but a specific
form of substantive rights—substantive rights against the imposition of risks
in flawed official adjudications.84 If this argument were correct, substantive
due process rights could be seen as prohibiting the designation of criminal
offenses that punish the innocent, while procedural rights could then be
regarded as protecting innocent individuals from the risk of being convicted
notwithstanding their innocence. In either case, the right can be seen as a
right of innocent persons not to be convicted.
81
INDIA CONST. art. 21.
82
While the death penalty itself was found to be constitutional in Bachan Singh v. State of Punjab,
(1980) 2 S.C.C. 684, the mandatory imposition of the death penalty has been found to be uncon-
stitutional (Mithu v. State of Punjab, A.I.R. 1983 S.C. 473), and other death penalty cases have
placed restrictions on its use. See, e.g., Attorney General v. Lachma Devi, A.I.R. 1986 S.C. 467 (pub-
lic hanging is unconstitutional); Sher Singh v. State of Punjab, A.I.R. 1983 S.C. 465 (unjustifiable
delay in executing is unconstitutional).
83
Indeed, it is precisely the lack of clarity in the distinction between substantive and procedural
content that prompted then-Justice Lamer, in Reference re Section 94(2) of the Motor Vehicle Act, to
reject the terminology of “procedural” and “substantive” due process and instead to focus on
securing the “full benefit of the Charter’s protection” under section 7. (1985) 2 S.C.R. at 298. See
also id. at 323 (Wilson, J., arguing that the line between substantive and procedure “is a very
narrow one”).
84
Larry Alexander, Are Procedural Rights Derivative Substantive Rights? 17 L. & PHIL. 19 (1998).
508 V. V. Ramraj
85
A similar argument is advanced by Lord Diplock in Ong Ah Chuan, as a basis for rejecting
a constitutional challenge, based on the equality provision in article 12(1) of the Singapore
Constitution, to the presumption of trafficking that arises on proof of possession of a specified
quantity of illicit drugs: “Wherever a criminal law provides for a mandatory sentence for an
offence there is a possibility that there may be considerable variation in moral blameworthiness,
despite the similarity in legal guilt of offenders . . . But Article 12(1) of the Constitution is not
concerned with equal punitive treatment for equal moral blameworthiness; it is concerned with
equal punitive treatment for similar legal guilt.” [1981] 1 M.L.J. at 72–73.
86
According to Herbert Packer, a due process model competes with the crime control model for nor-
mative supremacy. Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REV. 1 (1964).
87
See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 159
(The Free Press 1990) (arguing that “there may be no real point in overturning the decision
Four models of due process 509
again to carry the day, they would then be faced with the difficult task of
drawing a normative line between procedural and substantive fairness. But to
the extent that substantive due process is an accepted part of U.S. jurisprudence
(which seems to be the case after Lawrence v. Texas), it is exceedingly difficult to
justify restricting substantive due process to cases involving threats to privacy.
Some legal theorists recognize a conceptual difference between the general
and special parts of the criminal law,88 a distinction that might support a
conceptual line between the privacy and criminal fault branches of substan-
tive due process. The special part of the criminal law concerns the sort of
conduct (abortion or sodomy, for example) that is criminalized. It prescribes
the extent to which the state restricts our personal liberty and prevents us from
making intimate personal choices. In contrast, the general part concerns the
principles of fault (the mental element, for example) that govern a finding of
criminal liability, whatever might be the prohibited conduct. So it would seem
that there is a coherent conceptual distinction within the criminal law itself
between what is criminalized and when criminal liability is assigned.
But even if this conceptual distinction were a coherent one, it does not
necessarily justify a normative difference. If the autonomy of morally respon-
sible persons is the underlying concern behind the right-to-privacy cases, a
person’s autonomy is no less threatened by the principles of criminal fault.
Strict liability offenses, for example, deny personal autonomy by permitting the
law to treat a morally innocent person as a means to an end. The only plausi-
ble arguments that can be made in defense of strict liability are based on utili-
tarian grounds of general deterrence or prosecutorial convenience,89 both of
which subordinate the autonomy of the person to collective goals or interests.
Yet the very reason for the safeguarding of privacy interests is to protect the
individual from the weight of these collective goals and interests.90
in Griswold v. Connecticut . . . since no jurisdiction wants to enforce a law against the use of
contraceptives by married couples” and this “does not mean that Roe v. Wade should not be
overruled or that the spurious right of privacy that Griswold created should ever be used to invali-
date a statute again”).
88
See GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART v (Stevens & Sons Ltd., 2nd ed. 1961).
As Williams explains in the preface to the second edition, his book “is concerned to search out the
general rules of the criminal law, i.e., those applying to more than one crime. The great proliferation
of criminal offences by the legislature means that many crimes are not fully covered by judicial
interpretation; but all are governed by certain general principles, which are conveniently described
on the Continent as the ‘general part’ of the law.” Id.
89
R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 1311 (Can.) (Dickson, J., explaining, and then
refuting, the arguments in support of “absolute” liability based on the incentive they create “to
take precautionary measures beyond what would otherwise be taken” and based on “administrative
efficiency”).
90
In the absence of a constitutional doctrine of criminal fault within the due process jurispru-
dence, the United States Supreme Court has resorted to ad hoc principles of mens rea and culpability
elsewhere in its constitutional jurisprudence, perhaps to fill this lacuna. See, e.g., Tison, 481 U.S.
137 (refusing, in the context of an Eighth Amendment [prohibition against cruel and unusual
510 V. V. Ramraj
punishment] challenge to the imposition of the death penalty in a case where the mental element
was only that of “reckless indifference,” to strike down the law, the Supreme Court held that
“[d]eeply ingrained in our legal tradition is the idea that the more purposeful is the criminal con-
duct, the more serious is the offense, and, therefore, the more severely it ought to be punished”).
There is at least some recognition, however ad hoc it is in the constitutional structure, that mens
rea has, perhaps, a quasi-constitutional status.
Four models of due process 511
review, and of the significance of local cultural norms to the process of con-
stitutional interpretation. Although I intend, ultimately, to defend the sub-
stantive approach, in this part of the article I examine two possible
justifications for the formal approach. Both of these arguments insist that
judges should, as a general rule, be deferential to the legislature on questions
of criminal fault, albeit for different reasons. According to the first version of
this argument, a formal model of due process is justified since any other model
would involve an unwarranted and undemocratic judicial intrusion into the
realm of public policy, for which democratically elected legislatures, not
courts, are better suited. A second version of the argument is based on cultural
values; in Singapore, for instance, it might be argued that in the Asian cultural
context, judges should be more deferential. These arguments cut to the heart
of the controversy over constitutional due process; at stake is the justification
for judicial review itself.
91
This sort of argument is even made by judges who accept generally the need for judicial review.
See, e.g., Andrews v. Law Society of British Columbia, (1989) 56 D.L.R. (4th) 1, 38 (Can.)
(LaForest, J., arguing that “[m]uch economic and social policy-making is simply beyond the insti-
tutional competence of the courts; their role is to protect against incursions on fundamental
values, not to second-guess policy decisions”).
92
See Victor V. Ramraj, Comparative Constitutional Law in Singapore, 6 SING. J. INT’L & COMP. L. 302,
322–23 (2002) (arguing that legal texts “are, at best, notoriously open-textured and, at worst, as
postmodernists would argue, have no determinate meaning, independent of the interpreter,” and
citing H. L. A. HART, THE CONCEPT OF LAW 124–36 (1961) (2nd ed., Oxford Univ. Press 1994) and
HELEN M. STACY, POSTMODERNISM AND THE LAW: JURISPRUDENCE IN A FRAGMENTING WORLD 12
(Ashgate 2001)).
93
BORK, supra note 87, 143–60 (“The Original Understanding’ ”).
512 V. V. Ramraj
the text of the constitution that the courts can legitimately consider when
interpreting it. For some, such as Bork, these must be limited to those historical
sources that go to the “original understanding” of the framers of the constitu-
tion.94 For others, such as Ronald Dworkin, constitutional interpretation
involves a search for underlying normative principles.95 Yet other constitu-
tional scholars have recast the debate between originalists and non-originalists
as a debate about what sources, beyond the text, are appropriate to the task of
interpreting it.96 The debate over the nature of constitutional interpretation is
too complex to pursue fully here. But once it is recognized that the text alone
is not determinative, the textual argument loses much of its force.97
The structure of a constitution might also be regarded as an important
limitation on its interpretation. For instance, it might be thought that where a
constitution contains an express mechanism for limiting rights, the courts
have more room for an activist interpretive approach since the constitution
specifically provides for taking state interests into account.98 So the Canadian
Charter of Rights and Freedoms or the South African Bill of Rights, both of
which include a general limitation clause,99 would allow for a broader
interpretation of their constitutional “due process” provisions than would an
unqualified due process clause, such as is found in the United States (or, for
that matter, in India or Singapore). Attractive as this argument seems as a
justification for a more cautious approach to constitutional due process, it is
ultimately unconvincing. First of all, the same argument would also weigh
94
Id. at 144 (arguing that the “original understanding is . . . manifested in the words used and in
secondary materials, such as debates at the conventions, public discussion, newspaper articles,
dictionaries in use at the time, and the like”).
95
See RONALD DWORKIN, LAW’S EMPIRE 355–99 (Harvard Univ. Press 1986) (“The Constitution”).
96
Stephen M. Griffin, Theories of Constitutional Interpretation, in AMERICAN CONSTITUTIONALISM: FROM
THEORY TO POLITICS 140–91, 151 (Princeton Univ. Press 1996).
97
Even in Singapore, where the formal model of due process holds sway with some judges, the courts
are still prepared to go beyond the constitutional text to the historical context when interpreting
some provisions in the Constitution. See, e.g., Public Prosecutor v. Taw Cheng Kong, [1998] 2 S.L.R.
410, 419–27 (Yong, C.J., reviewing at length the constitutional history of Singapore and Malaysia
to determine whether the Singapore Parliament has the power to legislate extraterritorially).
98
Kent Roach makes a more general argument along these lines in KENT ROACH, THE SUPREME COURT
ON TRIAL: JUDICIALACTIVISM OR DEMOCRATIC DIALOGUE (Irwin Law 2001).
99
Charter, supra note 10, § 1; S. AFR. CONST. (1996) § 36. Section 1 of the Charter “guarantees the
rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.” Section 36(1) of the South African Bill of
Rights provides that the “rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into account all relevant factors,
including: (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the
nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e)
less restrictive means to achieve the purpose.”
Four models of due process 513
against an approach to procedural due process in the United States, and yet the
United States Supreme Court has not hesitated to be very robust in its
approach to procedural due process rights even in the absence of a limitation
clause.100 Second, there is no doubt that a “definitional” balancing of consti-
tutional rights and state interests does indeed take place in American
constitutional jurisprudence.101 Structure, it would seem, is less important
than understanding the nature of rights and the relationship between those
rights and any reasonable limits to them.
But even if a narrow textualist or structuralist approach were rejected, it
might still be argued that judges should not venture into the arena of policy for
reasons of democratic legitimacy. An important concern behind the textualist
approach is precisely that appointed judges do not have the same democratic
credentials as elected legislative representatives. One might therefore be tempted
to minimize the scope of judicial review in constitutional cases generally, and due
process cases in particular, by limiting the sort of cases that are subject to judicial
review. But as I argued earlier, these attempts are normatively suspect and tend to
rely on arbitrary line-drawing. A more conceptually coherent position would be
that judges should focus on questions of formal validity or legality rather than
substantive content, as the Singapore Court of Appeal did in Jabar. The Court of
Appeal, it will be recalled, insisted that any law “which provides for the depriva-
tion of a person’s life or personal liberty, is valid and binding so long as it is validly
passed by Parliament” and the court was “not concerned with whether it is also
fair, just and reasonable as well.”102 Following this approach, the scope of judicial
review for an alleged infringement of due process would be extremely narrow,
since in all of the jurisdictions we have been looking at it would an exceptional
case in which a person is deprived of liberty without any legislative basis what-
ever. But it would arguably have a greater legitimacy precisely because it is
content-neutral and deferential to the legislature.
It should be observed that while this argument provides support for a formal
due process, it is really a broader a challenge to constitutional rights. There are
a number of well-known responses. It might be argued, for instance, that an
expansive approach to judicial review is a countermajoritarian check,103 or
100
See DUCAT & CHASE, supra note 21, and accompanying text.
101
The pervasive use of “balancing” in American constitutional jurisprudence is clearly
demonstrated in T. Alexander Aleinikoff, Constitutional Law in an Age of Balancing, 96 YALE L.J.
943 (1987).
102
Jabar, [1995] 1 S.L.R. at 631.
103
See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 85 (Harvard Univ. Press 1977) (explaining
in his chapter on the role of legal principles in hard cases, “an argument of principle does not often
rest on assumptions about the nature and intensity of the different demands and concerns
distributed throughout the community. . . . A judge who is insulated from the demands of the
political majority whose interests the right would trump is . . . in a better position to evaluate the
argument”).
514 V. V. Ramraj
104
ROACH, supra note 98.
105
For two useful overviews of the “Asian values” controversy, see Venkat Iyer, Asian Values and
Human Rights, in DEMOCRACY, HUMAN RIGHTS AND THE RULE OF LAW: ESSAYS IN HONOUR OF NANI
PALKHIVALA 155–72 (Venkat Iyer ed., Lexis Law Publishing 2000); Daniel A. Bell, The East Asian
Challenge to Human Rights: Reflections on an East West Dialogue, 18 HUM. RTS. Q. 641 (1996).
106
For two recent attempts to do so, see Li-ann Thio, An “i” for an “I”? Singapore’s Communitarian
Model of Constitutional Adjudication, 27 H.K. L.J. 152 (1997); Ramraj, supra note 38.
107
Simon S. C. Tay, Human Rights, Culture, and the Singapore Example, 41 MCGILL L.J. 743, 757 (1996).
Four models of due process 515
If this view of rights were adopted, including its emphasis on the importance
of community and consensus,108 it would imply that the judiciary should be
respectful of and hesitant to second-guess the will of the legislature. The role
of the judiciary, it might be argued, is simply to ensure that rules of formal
validity are observed.
There are several objections to the Asian values argument itself—such as
whether there can be a homogeneity of values across such a large, diverse, and
densely populated region;109 whether, in any case, a shared set of values can
accurately be isolated and identified;110 and whether such values are present to
the exclusion of contrary values.111 I shall not examine these arguments here.
Instead, I assume provisionally that they can be met, and focus instead on specific
problems with the Asian values argument from a constitutional perspective.
The problem with an Asian values approach to constitutional interpretation
is that it is inconsistent with the idea of constitutionalism itself, which ostensibly
governs the interpretation of many constitutions in Asia, including Singapore.
It suggests that the institutions are not what they purport to be—that the
rights as set out in the constitution are not really rights and that judicial
review is not really judicial review. Many constitutions in East and Southeast
Asia, in express terms, purport to recognize and protect human rights and
imply or expressly maintain both the separation of powers and the independ-
ence of the judiciary. But a deferential “Asian” or communitarian approach to
constitutional interpretation of the sort described in the literature112 is difficult
to reconcile with the robust constitutionalism promised in the various consti-
tutions. In Singapore, for example, it is hard to reconcile a deferential
“Asian” approach to constitutional interpretation with a broadly worded
due process guarantee113 that forms part of a larger constitutional framework
that purports to protect religious freedom; freedom of speech, assembly and
association; and equality before and equal protection of the law.114
108
These are two of the values described in the Singapore government’s White Paper on Shared
Values (Jan. 2, 1991) Cmd. 1 of 1991.
109
See, e.g., Amartya Sen, Human Rights and Asian Values, in BUSINESS ETHICS IN THE GLOBAL MARKET
37–62, 42–43 (Tibor R. Machan ed., Hoover Institute Press 1999).
110
Even if there are some shared values across Asian traditions, constitutional problems are likely
to arise in precisely those situations where these values appear to diverge. Consider, for example,
the controversy that arose recently in Singapore when four Muslim girls were suspended from
school after insisting on wearing a tudung (a Muslim headscarf). For an account of this incident,
see Li-ann Thio, Recent Constitutional Developments: Of Shadows and Whips, Race, Rifts and Rights,
Terror and Tudungs, Women and Wrongs, 2002 SING. J. LEGAL STUD. 328.
111
Sen, supra note 106, at 44.
112
See, e.g., Thio, supra note 106.
113
SING. CONST. art. 9, § 1 (“No person shall be deprived of his life or personal liberty save in accor-
dance with law”).
114
Id. arts. 15, 14, 12.
516 V. V. Ramraj
The arguments in this part are not conclusive against the formal model.
They are intended only to highlight the controversial claims that would have
to be defended to justify a formal model of due process: (a) that judicial review
should not be concerned with substantive normative issues but only with
questions of legality; and (b) that in light of particular cultural values, the
institutions of the constitution, including judicial review, are not what they
purport to be.
115
See, e.g., Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV.
591, 591 (1981).
116
Id. at 592.
117
Id.
118
According to Kelman, there are four forms of unconscious constructs (broad and narrow time
frames, disjoined and unified accounts of incidents, broad and narrow views of intent, and broad
and narrow views of the defendant) and two conscious constructs (intentionalism and determinism,
rules versus standards) that are used by the courts. See id. at 593–600.
119
Id. at 592.
120
Id. at 592–93.
121
Id. at 594.
518 V. V. Ramraj
address the problem. He then argues that the resolution of the problem
depends not on principles of substantive criminal law but rather on interpre-
tive constructs that do not form a part of the legal discourse. For example,
Kelman argues that the outcome of cases involving strict liability depends
ultimately not on principles of criminal liability but rather on the unconscious
interpretive constructs of time framing and a conscious interpretive construct
that he describes as the choice between rules and standards.122
Consider his views on time framing in strict liability cases. Kelman argues
that whether or not it is regarded as wrong to punish the defendant because he
or she “could not have helped it” depends on the time frame one adopts. If we
look far enough back, he explains, we can always find an earlier stage at which
the accused could have taken affirmative steps to avoid the harm caused.123
But the explanation as to why a particular time frame is unconsciously
adopted in a particular case is not legal but, in fact, political or ideological:
In terms of “explaining” the narrow time-framed interpretation that
suppresses the policy complexities of the strict liability issue, one could
conceivably see the construction in either result-oriented or ideological
terms. One can view this attack on strict liability as a simple class-biased,
result-oriented defense of corporate managers, those persons most likely
to harm others through routine business operations. Certainly, the bulk
of strict liability crimes are regulatory crimes, which, unlike the tradi-
tional common law incidental harms, are most likely to be committed
by those who control the means of production. Of course, the defense of
strict liability is likewise grounded in a political agenda—in an attempt
to “get” harm-causing managers—rather than in abstract “legal”
thought. But since strict liability crimes have rarely been imposed in
ways that threaten corporate managers, the narrow-time-frame-based
dismissal of strict liability more likely serves ideological ends.124
It is therefore the ideology behind the use of the “unconscious” interpretive
construct of time framing—which does not form part of the legal discourse—
that ultimately determines the result in a particular case, not the principles of
criminal fault set out in the case law.125
122
Id. at 605–11.
123
Kelman gives the example of People v. Decina, 2 N.Y.2d 133, 138 N.E.2d 799 (1956), in which
the defendant, as a result of an epileptic fit, lost control of his car, which struck and killed the vic-
tims, and was convicted for negligent homicide on the basis that, in Kelman’s words, “he had made
a conscious decision to drive, knowing that an epileptic fit was possible.” Kelman, supra note 15,
at 603. Kelman argues that cases such as Decina, which open up the time frame, are difficult to
square with other cases where the courts, by employing a narrow time frame, rule out the possi-
bility of prior voluntary conduct that might have led to the “involuntary” conduct in question. Id.
124
Kelman, supra note 15, at 610.
125
Id. at 607–8. See also Mark Kelman, Strict Liability: An Unorthodox View, in 4 ENCYCLOPAEDIA OF
CRIME AND JUSTICE 1512–18 (Sanford H. Kadish ed., The Free Press 1983).
Four models of due process 519
126
MICHAEL MOORE, PLACING BLAME 3–80 (Oxford Univ. Press 1997).
127
Id. at 9.
128
Id. at 9–10. In contrast with his approach to the general part, Moore defends normative theory
of the special part, which governs the sort of conduct that is criminalized. Id. at 64–78. Since we
are concerned only with the principles of criminal fault, his normative theory of the special part
need not detain us.
520 V. V. Ramraj
129
Id. at 19.
130
Id. at 13.
131
Id. at 11.
132
Id.
133
Id. at 11–12. Here Moore refers to C. C. Langdell’s famous heuristic in contract law that a
contract is a “meeting of minds.”
134
Id. at 15.
135
Moore’s argument is, at this point, very much Dworkinian. Ronald Dworkin offers an
interpretive theory of the constitution according to which the judge’s interpretation of the
constitution as a whole “and of its abstract clauses, must be foundational. . . . It must fit and justify
the most basic arrangements of political power in the community, which means it must be a
justification drawn from the most philosophical reaches of political theory.” RONALD DWORKIN,
LAW’S EMPIRE 380 (Harvard Univ. Press 1986).
136
MOORE, supra note 126, at 18.
Four models of due process 521
137
Id.
138
Dworkin makes a similar point, in responding to the claim that stability (and hence “fit”) is
more important than moral goodness in the interpretation of constitutional rights: “Stability in
the interpretation of . . . these rights taken one by one is of some practical importance. But since
these are matters of principle, substance is more important than that kind of stability. The crucial
stability in any case is that of integrity: the system of rights must be interpreted, as far as possible,
as expressing a coherent vision of justice.” DWORKIN, supra note 135, at 368.
139
MOORE, supra note 126, at 45–60. For a contemporary philosophical approach to criminal
responsibility based on action theory, see ANTONY DUFF, INTENTION, AGENCY AND CRIMINAL LIABILITY:
PHILOSOPHY OF ACTION AND THE CRIMINAL LAW (Blackwell 1990).
522 V. V. Ramraj
140
One example of this complex relationship can be seen in the tension in Singapore criminal law
between the Penal Code–based approach to strict liability (which seems to allow for a defense of
mistake of fact in good faith) and the common law approach (which involves a presumption of
mens rea but allows for strict liability in certain circumstances). See Chan Wing Cheong,
Requirement of Fault in Strict Liability, 11 SING. ACADEMY L.J. 98 (1999); KHENG LIAN KOH ET AL.,
CRIMINAL LAW IN SINGAPORE AND MALAYSIA 83–94 (Lexis Law Publishing 1989).
141
R. v. Nsele, 1955 (2) SALR 145 (A). See also R. v. Bernardus, 1965 (3) SALR 287 (A) (rejecting
the notion that a person could be convicted of culpable homicide when they could not reasonably
have foreseen the death). See generally 1 E. M. BURCHELL ET AL., SOUTH AFRICAN CRIMINAL LAW AND
PROCEDURE 220 (3rd ed, 1997) (arguing that since the early 1960s, the common law has moved
away from the objective test in favor of a subjective test of intention).
142
Such as were articulated by the Supreme Court of Canada. See Sault Ste. Marie, [1978] 2 S.C.R.
1299.
143
See Brudner, supra note 76. Glen Luther made this point to me independently, during my staff
seminar at the University of Calgary in December 2001.
Four models of due process 523
6. Conclusion
I have tried to demonstrate in this article that of the four models of due process
that can be gleaned from the constitutional jurisprudence of Singapore, India,
the United States, Canada, and South Africa, only two (the formal model and
the full substantive model) stand out as coherent. The other two (the proce-
dural model and the procedural-privacy model) rely on arbitrary distinctions
and unprincipled line-drawing, suggesting that if constitutional due process
review is accepted, there is no normative basis for limiting judicial review to
considerations of procedural fairness or personal autonomy.
The main problem with the formal model is that it involves an emaciated
approach to constitutionalism and judicial review. This is particularly
problematic in the context of a modern constitutional framework that
purports to protect fundamental freedoms, with all their normative dimensions.
The normativity of the contemporary constitution is hard to square with a
vision of constitutionalism based simply on the formal notion of legality.
To argue that a modern constitutional framework, such as is found in the
countries I have considered, is consistent with a formal approach to constitu-
tional interpretation, is not convincing. Although I believe that many of the
144
See Ramraj, supra note 8, esp. Part II (b) A Hesitant Constitutional Approach to Criminal Fault?
524 V. V. Ramraj
objections to judicial review can be met, I do not in this paper attempt to defend
it from the ground up. Rather, my goal has been to show that the real debate
over the interpretation of constitutional due process is a debate over judicial
review itself, and attempts to frame it as, for instance, a debate as to whether
due process review should be procedural or substantive, obscure the real
issue.145 Opponents of a substantive model of due process—whether in the
West or in Asia—must be prepared to defend the outright repudiation of mod-
ern constitutionalism per se and a return to an age of executive or legislative
supremacy with, perhaps, a limited role for the judiciary in scrutinizing the
legality of government action.
Such are the problematic implications of a formal model of due process. But
an affirmative argument can also be made in support of a substantive model,
based on the need for consistency. The first premise of this argument is that the
three branches of due process, represented incrementally by the procedural,
procedural-privacy, and full substantive models of due process, are not
normatively distinguishable. Procedural fairness in the criminal law, the
protection of a sphere of autonomy in fundamentally personal decisions, and
the protection of the morally innocent from punishment have in common the
protection of the liberty of the individual from unreasonable interference by
the state. Normative consistency demands that the constitution guarantee all
three. The second premise of my affirmative argument is that a normative
theory of criminal fault entrenched in a constitutional doctrine of substantive
due process provides the best possible response to the claim of indeterminacy
of criminal doctrine. A substantive due process doctrine forces courts to think
seriously about underlying normative issues in precisely the same way that
they do for other constitutional issues; it forces them to articulate fundamen-
tal normative principles that will constrain the pursuit of otherwise legitimate
policy objectives by the state. And a substantive model of due process provides
the courts with the necessary tool—the declaration of constitutional invalid-
ity—to shape the principles of criminal liability, whether statutory or common
law, into a coherent normative system. I do not mean to suggest that any juris-
diction has successfully achieved this goal. But the judicial recognition of the
substantive model of due process is a necessary first step.
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The same goes for general challenges to judicial review based on cultural relativism. The ques-
tion is not whether substantive due process is inconsistent with, say, Asian values, but whether
judicial review is. This is a more fundamental question, but courts in Singapore, for example, pur-
port to accept judicial review, at least in theory.