4.2.B The Constitutionality of the Right to a Fair Trial
As a rule, where there is a constitution, the inclusion of the right to due process in the constitution (for an overview see: Zandberg, Rights of Defendants, ibid., at p. 35). In the United States, these rights are set forth in the Fifth Amendment and the Fourteenth Amendment to the Constitution, and therefore the discussion there was held within the framework of the broader question of granting constitutional rights to corporations (see Robert E. Wagner, "Miranda, Inc.: Corporations and the Right to Remain Silent", 11 Va. L. & Bus. Rev. 499, 508 (Spring 2017, hereinafter: Wagner, Corporate Right to Remain Silent. See also: Carl J. Mayer, "Personalizing the Impersonal: Corporations and the Bill of Rights", 41 Hastings L. J. 577, 625 (1990) (Mayer, Corporation Rights). This controversy began at the beginning of the twentieth century: Henry T. Terry, "Constitutional Provisions Against Forcing Self-Incrimination", 15 Yale L.J. 127,129 (1906) following the judgment: Hale v. Henkel, 201 U.S. 43, 76 (1906), hereinafter: the Hale case). In the United States today, corporations enjoy many constitutional rights, including but not all of them (see Christopher Slobogin, "Citizens United and Corporate and Human Crime," 41 Stetson L. Rev. 127, 128 (2011) (hereinafter: Slobogin, Citizens United). Thus, in the United States, the companies enjoy the right to due process set forth in the Fifth Amendment to the Constitution, but not the right to refrain from self-incrimination set forth in that amendment itself (see: Mayer, Corporation Rights, ibid., at p. 582, quoting the relevant case law).
In Canada, the right to due process is enshrined in Article 7 of the Canadian Charter of Rights and Freedoms.
In Israeli law, the question arises as to whether the right to a fair trial, and with it the right to remain silent and the right to refrain from self-incrimination, are constitutional rights, especially following the enactment of the Basic Law: Human Dignity and Liberty. In the literature, there are those who believe that the right of a defendant to remain silent and the right of a person not to incriminate himself are among the basic rights of the person included in the Basic Law: Human Dignity and Liberty, which are anchored in a person's right to dignity, liberty and privacy (see Zandberg, Rights of Defendants, ibid., at p. 36). Others believe that these rights, despite their importance, are not included among the basic rights set forth in the Basic Law. The same applies to the rights of a human defendant.