Proportionality: An assault on human rights?: A reply

In a recent article in I•CON, Stavros Tsakyrakis presents a passionate critique of the proportionality test.1 Tsakyrakis regards proportionality as an illusory attempt to infuse objectivity into rights adjudication. Moreover, he posits that it necessitates weighing public interests against individual rights. Proportionality has emerged, globally, as the leading framework for evaluating rights violations.2 It serves as the uniform standard of rights review in jurisdictions as diverse as Israel, Germany, Canada, and South Africa. Remarkably, recent opinions by Justice Stephen Breyer of the United States Supreme Court indicate that the approach is gaining currency within America's constitutional jurisprudence.3 Considering proportionality's significance, Tsakyrakis’ critique is of considerable moment and merits careful study. In this essay I argue that, while Tsakyrakis is right to consider certain types of balancing objectionable, he is wrong to conclude that proportionality necessitates them. Rather than focusing on important philosophical questions regarding the commensurability of values, this response will be limited to providing clarity on proportionality's methodology and observing the false premises that underlie Tsakyrakis’ arguments. Examining the cases and hypothetical Tsakyrakis relies on, I demonstrate how they fail to articulate any defect in the proportionality test. Notwithstanding this, Tsakyrakis’ analysis provides a useful insight into the dangers of treating proportionality's subtests as farcical. The proportionality test is characterized by an inquiry into the following: the impugned measure's purpose, the relationship between the measure and the limitation on the right, the necessity of the measure to achieve its purpose, and the balance between the benefit gained by the measure and the loss suffered by an impact on the right.4 While in Canada the first subtest requires the purpose to be “sufficiently important,”5 in South Africa it is merely required that it be legitimate, that is, constitutional.6 The second subtest mandates a rational connection between the measure and its purpose.7 This connection must truly exist and cannot be “only minimally” connected to the objective.8 The third subtest examines whether the impugned measure impairs the right as little as possible. While the measure would be struck down if a less intrusive measure exists,9 the less intrusive measure must be equally effective.10 The final stage is where balancing or proportionality stricto sensu is conducted. Importantly,“[b]alancing is not primarily or essentially about interpreting constitutional rights; it is about assessing whether and when the government may override the rights as interpreted.”11 The importance of this stage is demonstrated by Dieter Grimm's illuminating hypothetical. Imagine a law permitting the police to shoot someone to prevent him from destroying property. Here, the purpose is appropriate as it aims to protect property; there is a rational connection, since the shooting will stop the perpetrator; and the means are narrowly tailored, as there is no other way to stop the destruction. In this situation, without the final stage, “the balance between life and property could not be made.”12 Under proportionality's methodological approach, balancing only takes place in the final stage. Thus if the purpose is not proper there will be no reference to the rational connection, necessity, and balancing subtests. Consider the right against torture, which I shall regard as an absolute right.13 If a statute permits electrocutions, the central inquiry under proportionality will be whether electrocutions amount to torture. The question will not be whether torture should, on balance, be permitted. This distinction is significant, and can be appreciated by examining the Israeli Supreme Court decision in Public Committee Against Torture in Israel.14 Here, interrogation practices, including forced shaking of the suspect's upper torso and sleep deprivation, were challenged. The Court observed that “a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment… . These prohibitions are ‘absolute.’ There are no exceptions to them and there is no room for balancing.”15Public Committee Against Torture in Israel lucidly illustrates how proportionality does not necessitate balancing in every case. One of proportionality's most appealing features is that it deconstructs the decision-making process so as to allow us to evaluate how judges address specific issues. As Julian Rivers observes, “the distinct contribution of each stage makes it much easier to adopt an orderly approach to questions of institutional competence (deference) and legitimacy (restraint).”16 Proportionality has other virtues, though we shall highlight them on another occasion. For our present discussion, it is sufficient to note proportionality's approach and its methodology. According to Tsakyrakis, the proportionality test necessitates balancing individual rights with public interests: There are, at least, two controversial assumptions underlying this approach: first, that public interests, as a matter of principle, can always be weighed against human rights; and, second, that measures aimed at promoting a public interest may prevail unless they impose an excessive restriction compared to the benefit they secure (the violation seems to depend rather on the intensity of the restriction than on its incompatibility with the right in case).17 Since it is only rarely that measures are completely irrational, and it is always possible to argue that they are suitable and necessary to accomplish a legitimate aim, a measure fails only very occasionally on the first two counts. Essentially, the proportionality test is reduced, more often than not, to measuring the relative intensity of the interference with the importance of the aim sought.18 Tsakyrakis’ argument is developed by analyzing certain decisions of the European Court of Human Rights that applied proportionality and arrived at seemingly flawed results. The first is Otto-Preminger-Institut v. Austria,19 where the applicant, a private non–profit-making organization that owned a cinema, publicly announced it would screen the film Das Liebeskonzil (Council in Heaven). The film was based on a play that contained scenes that included “God the Father as old, infirm and ineffective, Jesus Christ as a ‘mummy's boy’ of low intelligence and the Virgin Mary … as an unprincipled wanton.”20 Following the announcement, the film was seized and confiscated and, thus, could not be screened. The applicant challenged the seizure and forfeiture as violative of article 10 of the European Convention. The Court held that the measure legitimately aimed to “protect the right of citizens not to be insulted in their religious feelings by the public expression of views of other persons.”21 Importantly, however, the Court refused to examine any possible infringement of free speech. It emphasized how there was no universal standard in Europe regarding the role of religion, and that it was “not possible to arrive at a comprehensive definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feelings of others.”22 Since the national authorities are vested with a margin of appreciation, the question simply became whether Austrian authorities had acted within that margin. Acknowledging the sensitivity of religious beliefs, the Court found that it was “for the national authorities, who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally at a given time.”23 Tsakyrakis’ primary misgiving with Otto-Preminger-Institut is the Court's acceptance of the measure as a legitimate protection of the rights of others. Tsakyrakis regards this protection as deeply flawed: “I may have strong feelings about a person. I may be in love with Jennifer Lopez, for instance. Still, the strength of my feelings for her does not entitle me to any special protection.”24 While the minority did not acknowledge a right to have one's religious feelings protected, they nonetheless accepted the measure as legitimate since it protected the public interest. This was hardly better, argues Tsakyrakis, since public interest would merely be the majority view.25 Tsakyrakis’ central point is that balancing was unacceptable: … [T]the problem lies less with the severity of the restriction and more with the justifiability of imposing a restriction, in the first place, on the grounds that it offends someone's religious feelings. By deferring all the crucial judgments to the final stage, the balancing approach clouds the real problem and provides crude resources to resolve it.26 In another case I. A. v. Turkey,27 an applicant convicted for publishing an allegedly blasphemous book contended that the conviction violated his right to freedom of expression under article 10 of the European Convention. The book contained statements such as “Muhammad did not forbid sexual relations with a dead person or live animal.”28 The Court held that a balance was needed between the right to free speech and the right to respect for one's religion.29 Considering the “abusive”30 nature of the statements in the book, the measure was considered necessary as it addressed a “pressing social need.”31 Tsakyrakis critiques this case on similar grounds: it failed to protect free speech. Further, in the balancing stage, the Court considered the mildness of the penalty (the book was not seized and the monetary fine was equivalent to sixteen U.S. dollars). According to Tsakyrakis, reference to the penalty imposed illustrates proportionality's focus on a cost-benefit analysis rather than on safeguarding rights.32 It is easy to see why these were hard cases for the European Court. The Danish cartoon controversy vividly demonstrated the sensitivity of religious feelings.33 Yet, for our present purpose, let us agree with Tsakyrakis that both cases invite criticism for failing to protect free speech. This failure, however, is not instructive regarding difficulties with the proportionality test. First, the European Court did not engage in any rigorous application of proportionality. The Court muddled the various subtests and concentrated solely on the question of proper purpose. Tsakyrakis is correct that the Court's “reasoning is terse and fails to identify the contribution that different considerations make to the outcome.”34 However, this acknowledgment perhaps undercuts Tsakyrakis’ own argument; it seems strange to suggest problems with proportionality by studying cases where it was poorly applied. If the test is indeed problematic, then it ought to yield undesirable results when properly deployed. Yet by his analysis, Tsakyrakis has certainly highlighted the significance of proportionality's subtests. Second, and more fundamentally, Tsakyrakis does not unpack the Court's reasoning. The European Court operates under very different constraints as compared with a domestic court. The primary reason why the Court regarded the purpose as proper in both cases was not because it necessarily believed it to be so but, rather, as an act of judicial restraint. The European Court thought it best to defer to national authorities. The rationale for the Court's decision in both cases was the margin of appreciation it grants to contracting states. The doctrine was developed because of the Court's recognition that “it was an international court with authority to review legislation adopted by numerous states with distinctive cultures facing varying problems.”35 This is all the more so in the case of religion, as the Court observed in I. A.: “The fact that there is no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions means that the Contracting States have a wider margin of appreciation when regulating freedom of expression in connection with matters liable to offend intimate personal convictions within the sphere of morals or religion.”36 In both cases the Court uses the doctrine to accept domestic decisions. Cases such as Otto-Preminger-Institut and I. A. are problematic because they do not actually inquire into the issues in dispute. R. St. J. MacDonald observes, correctly, that a court that invokes the doctrine “is really providing no reason at all but is merely expressing its conclusion not to intervene, leaving observers to guess the real reasons which it failed to articulate.”37 This is precisely the position in which we are left. George Letsas regards this use of the doctrine as being “in tension with anti-utilitarian theories of rights and the duties of the European Court as a matter of law.”38 We will not delve into the margin of appreciation doctrine here, though we may note that there is growing concern with its use by the European Court.39 Suffice it to say that we must scrutinize the doctrine's current workings, since it is this doctrine, rather than proportionality, that has created the outcome in both cases. A third case Tsakyrakis considers is F v. Switzerland.40 Here, a Swiss law imposing a three-year prohibition on remarriage was challenged as violative of article 12 of the European Convention. The European Court held that while the law's aim was legitimate (stability of marriage) it was not clear “whether the particular means used were appropriate for achieving that aim.”41 Further, it rejected the argument that the temporary prohibition protected the rights of another, that is, the future partner of the divorcee.42 Hence, the Court found the government's claim that the measure enabled persons to reflect upon their decision and consequently protect themselves as insufficient to “justify the impugned interference in the case of a person of full age in possession of his mental faculties.”43 The measure, therefore, violated article 12 in that it was “disproportionate to the legitimate aim pursued.”44 Tsakyrakis argues that, although the judgment rejected the law's basis, the Court's reasoning becomes unclear by the use of the word “disproportionate.” Tsakyrakis asks: Should we infer from this that, in the Court's view, the temporary prohibition of remarriage served a legitimate aim, and that its sole concern was the disproportionate impact on the applicant's rights? Would the measure be allowed to stand, if, while still paternalistic in spirit, it prescribed a shorter temporary prohibition?45 We now turn to Tsakyrakis’ interesting hypothetical. Imagine if 87 percent of the Tyrolese hated Eskimos and felt morally repulsed during the screening of Eskimo films or the staging of Eskimo plays. Should the feelings of the Tyrolese be considered? According to Tsakyrakis: … the preferences of the Eskimo-haters should not be taken into account at all. But a balancer, arguably, would let them play out in the balance. How, then, would he assign a value to such preferences? Presumably, he would assign them a very low value that would make them easy to override by way of competing considerations. But that sounds hopelessly ad hoc. It is not that the preferences of the Eskimo-haters should count or only count for little. It is that they do not count at all.46 Contrary to Tsakyrakis’ argument, however, proportionality would ensure that the feelings of the Eskimo-haters are irrelevant because the measure would not satisfy the first subtest. A correct application of the test would find the purpose improper; Tsakyrakis’ assertion does not accurately reflect proportionality's methodology. Regarding Beatty's argument, we should first note, as Vicki Jackson demonstrates, that Beatty's own conclusions do not follow: “… to the extent that whites’ status in fact was relative … ending segregation may indeed have diminished their status.”50 The central point, though, is that under proportionality the question of balancing would not arise in Brown. Segregation would have been invalidated as being a measure that aimed to discriminate; again, it would not have met the conditions of the first subtest. Brown and the Eskimo hypothetical are akin to the Israeli Supreme Court's decision in Public Committee Against Torture. Thus while Tsakyrakis’ critique of Beatty is valid, it fails to highlight any faults with proportionality. We should comment briefly, however, on Beatty's description of proportionality as a “universal criterion of constitutionality.”51 Robert Alexy also considers balancing “unavoidable, since there is no other rational way in which the reason for the limitation can be put in relation to the constitutional right.”52 It would be wrong to regard proportionality as the only useful methodology for resolving rights disputes. Barak's observation that “‘balancing’ and ‘weighing,’ though neither essential nor universally applicable, are very important tools … however, they do not produce singular, unambiguous legal solutions …” seems far more reasonable.53 Similarly, Jackson notes that “to claim omnicompetence for any one principle in constitutional law will prevent that body of law from doing some of its most important work.”54 It would be an even greater mistake, and one that both Beatty and Tsakyrakis, at times, seem to make, of limiting proportionality to balancing. Ronald Dworkin recently warned against the “balancing metaphor” for “it suggests no principled basis for deciding how much torture we should facilitate… .”55 He noted that “[b]uilding a new airport is bound to disadvantage some people, but the damage is justified if it is the best choice for the nation. However, some injuries to individuals are so grave that they cannot be justified by declaring that that is what the public wants.”56 This is the very rationale that drives proportionality for it recognizes that public interests may justify impacting some but not all rights. Tsakyrakis’ suggestion that proportionality's other subtests are farcical is empirically unsustainable. It ignores an overwhelming body of cases where courts have applied proportionality without any reference to balancing. Although Tsakyrakis acknowledges proportionality's subtests, his arguments palpably presume balancing in all cases. His concerns are resolved when we consider proportionality's actual methodological approach. Importantly, his reservations about certain decisions of the European Court of Human Rights do very little to advance his claims. On close inspection, we find they result from the margin of appreciation doctrine. I would like to conclude by identifying an area of probable agreement with Tsakyrakis. We can both accept that not all situations can be left to balancing, such as the Eskimo hypothetical or Brown. For some, it is tempting to limit proportionality to balancing; this raises legitimate concerns that Tsakyrakis has appropriately noted. Judges must place greater emphasis on proportionality's subtests, recognizing each serves a distinct function. When decisions fail in this regard, they invite Yet this need not us to proportionality's framework We must not as Dworkin that judges will by produce decisions they should make no to produce Tsakyrakis’ article is an important that while proportionality can do much regarding it can do very little about

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