IACL World Congress, Mexico
Workshop 9: Proportionality as a constitutional principle
The proportionality principle may be applied to reconcile conflicting constitutional provisions, either as a precondition for the application of a constitutional principle or as a free-standing constitutional requirement.
Where proportionality provides a justification of the limitation of a right or a freedom, it may be found in the constitutional text (for example in the Declaration of the Rights of Man and the Citizen of 1789, on the subject of the imposition of a penalty or interference with property rights). However, a constitutional court may apply the proportionality principle even in the absence of any express constitutional provision to that effect.
Proportionality enables the courts to develop a hierarchy of fundamental rights and liberties, or a hierarchy of those rights and liberties and public interests.
Proportionality may also be raised by a court as a principle which the legislature should respect quite independently of any need to reconcile constitutional principles with one another.
The principle is also applied by the European Court of Human Rights for the purposes of the margin of appreciation allowed to states in applying the Convention.
Against this background a number of issues arise:
- What is the extent of the court’s power in applying the proportionality principle? Is it limited or unlimited?
- Could the proportionality principle justify a court interfering with the legislative function to the extent of determining substantively where the public interest lies?
- Could the proportionality principle undermine a judicial system that is supposed to be based on common values by substituting for it a system based on reaching a consensus as to different concurrent values.
- Does the application of the proportionality principle enhance the discretionary functions of the court, so that giving effect to substantive legislative requirements becomes secondary to consideration of the rationality of challenged decisions.
- Are there any non-derogable principles, i.e. principles which are not subject to proportionality review?
- Does the principle of proportionality guarantee to states a degree of freedom of action under the European Convention of Human Rights, or is the principle designed to limit the freedom of action of states in deciding how to give effect to Convention rights?
- How is the principle of proportionality given effect by constitutional courts? Do its effect depend upon the kind of review (abstract, concrete, ex ante, ex post, by way of appeal from an inferior court or the exercise of original jurisdiction by a constitutional court)?
These questions are not exhaustive. The workshop is open to those interested in these and other approaches to proportionality in constitutional law.