Due Process Under Extreme Conditions: Burdens, Deference and the Judicial Function

In exercising judicial review in times of crises courts face a well-known dilemma: to defer or not to defer? Deference is prudent: The executive/legislature are better equipped to deal with emergencies swiftly and efficiently, as they possess the expertise, the wherewithal, and bear the responsibility for error. Exercising strict review may derail the governmental efforts and carry an exceptionally high price. Yet deference raises the specter of abdicating the core judicial function to protect rights. In times crises, real or perceived, the danger of over-reaction – disproportionality – is most apparent. Conceptually, rights may be infringed provided due process is maintained; but what does due process require under extreme conditions? Courts have adopted a range of strategies to cope with this challenge. The paper will explore the experiences of Israel, Canada, the US, and Asia, focusing on burden of proof, production of evidence and procedural rights (including Habeas Corpus).