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The Meaning of the Principle of Proportionality for the Administration: A Comparative View |
Javier Barnes |
I. The Original Meaning of the Principle of Proportionality in the Twentieth Century. Proportionality as “prohibition of excessive measures”
1. The spread of the principle of proportionality
Proportionality enjoys the distinction of being one of the most important principles in today’s Constitutional and Administrative Law. The modern conception of the proportionality principle has gained uncommon prominence in the Western World, and its importance in jurisprudence is possibly superior to that of the principle of equality, if their respective spheres of action and influence are taken into account. In Europe, it is invoked by litigants more often than any other general principle of Law. It has been analyzed by scholars from all over the world in the last three decades, much more than many others topics. It should be kept in mind that any interference or intervention in the rights granted by Treaties, national Constitutions or even regular statutes is susceptible to revision in its light. Moreover, according to statistics, the number of resolutions in which the court has found the case in question to be disproportionate and consequently inconsistent with the norm (Treaty, Constitution or statute) is enormously greater than those found to be discriminatory on grounds of equality. The proportionality principle is even more relevant than the equality principle in the development and reform of national, European and international Administrative Law. Nonetheless, perhaps because of the inherent complexities and risks involved, the principle of proportionality, in its application to the field of fundamental rights, is often more polemic and difficult than the principle of equality.
The proportionality principle is embedded in almost every national legal system and underlies the international legal order. A general prohibition of disproportionate limitations on constitutional and legal rights and freedoms has developed in democracies around the world. It is also a fundamental principle of European Law (European Union, European Convention on Human Rights). A principle of proportionality now flourishes across the broad spectrum of legal systems and has begun to expand further into the previously foreign territory of common law jurisdictions. Among the schools of thought which have shaped the historical development of proportionality, the principles of retributive and distributive justice should be highlighted on the one hand and the notion of the liberal state, on the other. In any case, its roots are as old as the very idea of justice. Proportionality captures a kind of common sense view of justice. A proper means-ends relationship constitutes the oldest genuine basis to control public powers.
The concern to achieve a “fair balance” between the demands of the general interest of the community and the requirement to protect the rights of the individual is reflected in the proportionality principle: there must be a reasonable relationship between the means employed (the forfeit of interference in freedoms and rights) and the aim sought (a fully legitimate and lawful end). This relationship has evolved to be one of the criteria that a law along with its posterior application and interpretation must satisfy in order to be considered a reasonable limitation of individual rights and freedoms in a democratic society.
2. European model.
The idea of proportionality has many different forms and applications. As a notion in everyday use, it describes the comparative relationships of two or more things to each other in general and the means-ends relationships in particular. The legal understanding more closely resembles the latter meaning, i.e., a reasonable relationship of proportionality between the means used and the aim pursued in the exercise of public power. Even so, it is a fluid and versatile idea, and its interpretation depends on a wide variety of contexts, especially the framework of the every right and freedom, the legal system and the branch of Law.
First in Europe, and later in different ways at a worldwide level, the notion of proportionality in the fields of Administrative and Constitutional Law has been elevated to a basic principle or doctrine acquiring a more specific structure and form.
A detailed analysis of its application in each national or supranational system, and in relation to each individual right or freedom, it is easily discernible that there are differing versions in use in constitutional courts around the world, each with its particular nuances of the proportionality principle. In a common attempt to strike a balance between necessary State intervention and the protection of the individual, different perceptions and contexts lead to different levels of protection for the individual (through proportionality principle) and to diverse results regarding the appropriate standard of judicial scrutiny. Nevertheless, the comparative analysis should adopt a functional and systematic approach. It is necessary to identify the protection mechanisms and their functional equivalents in each legal system. For example, the isolated comparison of the proportionality principle in its “European”, “South African”, “Israeli” or “Canadian” version is not enough.
3. Proportionality as positive guideline involving criteria established by regular statutes. Accountability
The changing international environment at the end of the last century has brought new topics and approaches into national, European and international Administrative Law. The advance of the information society, the risk society, the ongoing processes of globalization (economic, social, environmental and informational interdependence), privatization and deregulation, the Europeanization of the national Administrative Law, etc., brings about the need for a profound reform of Administrative Law and of Public Administration. It also has consequences on proportionality.
New administrative tasks are emerging (i.e. concerning the information exchange between public bodies and citizens); situations are much more complex with regards to the ends public bodies must fulfill, the various interest to be kept in mind, the uncertainty and provisional nature of the decisions that are made (for example, in environmental protection or those concerning rapidly evolving modern technologies); the rise of new regulatory systems (i.e., governance, autoregulation), etc., to name but a few examples. In the same way, privatization requires numerous adjustments to be made in Public and Private Law. It also involves the transposition of Administrative Law values into the realm of Private Law. Privatization can be a means of "publicization”. Privatization might extend norms of rationality and proportionality to private actors, especially to those who provide essential services.
The question is not only to minimize the interference of rights and freedoms resulting from the decisions of public bodies or to guarantee their minimal protection, but also to maximize all the rights, interests and proper objectives in an ever more complex, competing and conflicting rights’ world and to extend public values to private actors.
Administrative Law is changing around the world to encompass not only limits and controls (through judicial review) on the Executive, but also the criteria for making a better and more effective decision. In the Twenty-First Century, the idea of proportionality could play an important role not only as grounds for judicial review (negative function), but above all as a rule of reason for the Administration, that is, as a positive guideline and effectiveness-centered analysis designed to achieve a better discretionary decision-making process (positive function). The idea represented by the principle of proportionality should not be limited to its negative function (a set of prohibitions and its judicial review).
The positive content of the proportionality principle (a set of positive rules and criteria for a better action) implies the need for controls that are different from those exercised by judicial review. Administrative actions could be subjected to many other control instruments, such as analysis, evaluations, assessments, administrative procedures, citizen participation and transparency, new organizations, information exchange, etc., on the basis of normative criteria such as effectiveness, efficiency, quality standards, positive proportionality, etc. Positive proportionality serves here as an “optimization rule” (“praktische Konkordanz”; Win-Win-Situation; etc.). The public Administration should take the most proportionate decision for all the citizens, rights and interests at stake.
Proportionality is not only a criterion of control; it also serves as a criterion for the actions carried out by the Administration. Proportionality, as well as the rest of the criteria or parameters of administrative action (equality, efficiency, etc.), does not come to an end in as much as it can be judicially reviewed.
The “optimization rule” analysis must be supplemented by a suitable administrative procedure, especially when the statutes do not establish what to do in every case. If so, the statutes must establish how to decide in the most proportional way, that is, the proper administrative procedure rules. This entails the establishment of rules to fulfill numerous functions, such as: how to obtain the most reliable information in order to balance and optimize different options, to promote transparency, to balance in terms of positive proportionality, all interests and effects on rights and other goods, etc., and provide motivation, not only of the chosen decision but also of other options; etc. The administrative procedure as method to form the decision-making process (unilateral decisions, regulations, public procurement, etc.) is a tool to ensure that the most proportionate decision is made. The administrative procedure is also a way to rationalize and to strengthen the decision-making process through the participation of public, experts, companies and other Administrations. |
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Proportionality and Invariable Baseline Intensity of Review* |
Cora Chan |
One of the most contested issues in UK public law is how to calibrate the appropriate intensity of proportionality review in human rights adjudication. Here, the challenge lies in formulating a theory of intensity of review that can both comply with the constitutional framework introduced by the Human Rights Act 1998 (‘HRA’) and accommodate courts’ varying levels of competence in different areas of litigation. This paper attempts to sketch such a theory in two steps. First, it argues that to fulfil the constitutional expectations brought about by the HRA, a minimum rigour of proportionality review should be observed. This baseline consists of requiring the government to demonstrate to the courts by means of cogent and sufficient evidence that a rights-limiting measure satisfies the distinct stages of the proportionality test. Secondly, this paper highlights the ways in which compliance with this baseline can nonetheless accommodate the courts’ varying levels of competence in different adjudicative contexts. In particular, courts can vary the intensity of review once the baseline level of review is reached and adjust the nature of the evidence required from the government.
* The wording of the title is adapted from the title of Julian Rivers’s influential article, ‘Proportionality and variable intensity of review’ in (2006) 65 Cambridge Law Journal 174. |
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Prohibition of Underregulation: The Proportionality Analysis in Inaction Cases in Japan |
Keiichi Chikushi |
This paper discusses Japanese courts’ application of the proportionality test in government inaction cases,1 especially in the area of environmental or safety regulation. It argues that although its primary role is to prohibit overregulation, the test also assumes an important role in prohibiting underregulation.
Under Japanese law, it is more difficult for claimants to win government inaction cases than action cases. This difficulty stems from, among other things, the administrative opportunism theory. According to this theory, courts cannot hold agency inaction illegal, if an agency has the discretion to decide when and how to exercise its regulatory authority. Two considerations, namely the traditional libertarian view of the government role and the separation of powers concern, underlie the theory. The former emphasizes that governmental regulation infringes upon the interests of the regulated, rather than that it protects those of the beneficiaries. The supporters of administrative opportunism also stress the latter consideration that the distribution of limited administrative resources, which determines the way to exercise regulatory authorities, is an executive duty rather than judiciary.
However, Japanese law has allowed relatively intensive judicial review of discretionary function in inaction cases, especially in damage suits, since the 1970s. In a 1989 case, the Supreme Court of Japan stated that agency inaction is illegal when it is extremely unreasonable under specific circumstances in light of the purpose for which the legislature delegated the regulatory authority to the agency. The Court in 2004 held agency inaction illegal under this analytical framework in two cases relating to environmental or safety regulation. In a 2004 case, mine workers who contracted pneumoconiosis sued Japan, claiming that the government was negligent in failing to provide sufficient protection against pneumoconiosis, and the Court unanimously held that the agency inaction, including the failure to revise a regulation, was negligent. In this case, the Court prohibited underregulation, not overregulation.
Japanese courts have not explicitly mentioned the proportionality test in inaction cases. Indeed, the original and main purpose of the proportionality test is to prohibit overregulation in order to protect the interests of the regulated. However, the Court did prohibit underregulation in some cases and it is possible to adopt the view that in these cases the Court applied another type of proportionality test which focuses on the interests of regulatory beneficiaries, rather than those of the regulated.
I plan to analyze the above-mentioned shift and evaluate it from the democratic accountability perspective.
1 Inaction cases here include inadequate enforcement cases.
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Administrative Law in Myanmar: Constitutionally Entrenched Writs and Prospects for Accountability in an Era of Democratic Reform |
Melissa Amy Crouch |
As a common law jurisdiction, Myanmar has recently ‘reintroduced’ the constitutionally entrenched writs through the 2008 Constitution, effective from 1 January 2011. While we know a little about the historical use of the writ of habeas corpus in Myanmar from Cheesman (2011), we know little else about mechanisms for review of government action in Myanmar, either judicial or non-judicial. This presentation will provide a socio-legal analysis of review of government decisions in Myanmar in its broader comparative common law context. I will provide a brief overview of the use of the writs since independence in 1947, which largely ceased after the introduction of socialism and the 1974 Constitution. I will then examine some recent cases that have been brought to the Supreme Court since 2011, and explore the potential for the development of judicial review as part of the reform process. I will also highlight the various non-judicial public accountability mechanisms that have been established or proposed since 2011, and examine the potential prospects and challenges these institutions face in promoting transparency and accountability in government decision-making. |
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Mongolian Administrative Courts: Problems and Developments |
Chimid Enhbaatar |
The prevailing trend in modern era is the unprecedented increase of the judicial power that swept the globe. For example, almost all former soviet republics, as well as former socialist countries have established constitutional and administrative courts in order to protect their citizens against offensive government actions. These courts have been created and vested with a variety of powers and duties in order to uphold the characteristics of democratic regime based on the rule of law.1
The importance of these courts continues to increase as their judgments attract attention from the legal profession and public. It seems, concerns with the protection of fundamental human rights and the establishment of limited government, along with the distrust of government, contributed to the increased role of administrative judges.
The countries belonging to the continental legal system have laid down in their constitutions inherent basic rights, which a person can invoke for protection against the state. Since the ability of the citizens to enjoy his or her rights and freedoms are closely linked with the daily work of administrative authorities, the matter of public administration is taken very seriously in these countries. Everyone who believes that his or her rights have been violated by acts of the executive, of local authorities and of other governmental bodies which take decisions on the basis of public law, has the right of recourse to an administrative court in order to protect his or her rights.
Like most civil law systems, such as Kazakhstan and Germany, Mongolia has specialized administrative courts. The creation of the administrative courts was based on the Constitution of Mongolia (Article 48 (1) which provides that administrative courts may be established. This is the origin of the administrative courts, the first ever and only specialized courts in Mongolia. On December 26, 2002 the State Great Khural (parliament) passed the Law on establishment of administrative court along with the Law on procedure for administrative cases. It took almost ten years to convince the State Great Khural to pass these laws with enormous work of lawyers and scholars, and the support of international organizations.2
The establishment of administrative courts signified a marked progress in the judicial system of Mongolia as well as the increasing emphasis that the country is placing on protecting individual rights against unlawful governmental action. The main power of the administrative court is to exercise court control of activities of the executive organizations within legally defined frame and power. However, it should be noted that since Mongolia belongs to the continental law family, judges use different form of reasoning. This reasoning moves from the general to the specific, or, to put it more clearly, from a legal rule provided by the legislature to the facts in the case under consideration in order to deduce a conclusion, while a common law judge uses a very different reasoning based on many specific legal rules, stemming from the legislature, bureaucracy, and the courts. It may be said that the facts in the case guide a common law judge to conclude which specific rules applies. As we see, the civil law judge is much more passive. The question of administrative action in civil law family is thus exclusively a question of legality, not reason. Therefore, the characteristic element of the continental system of law is distrust towards the public administration and its strict binding to the letters of the law. As a result, many specific principles, concepts and doctrines like the principle of proportionality, reasonableness or balancing etc, developed in constitutional, international and administrative law are more or less unfamiliar to Mongolian judges. However, it seems that legal families are coming closer to each other as a result of the inter-dependence of national economies, the expansion of international trade, the establishment of an international communications and information network, the increasing number of multilateral treaties in the field of private law, and UN conventions and other instruments. This is especially true for Mongolian legal system which is undergoing major reform in recent years. There are even some indications that Mongolia slowly but firmly moves toward the common law-like model of legal system. There is no need for Mongolia to re-invent the wheel, to draft legal reforms afresh and without any models for guidance. It should be noted, however, that integration in a legal family does not simply mean imitating and applying all the legal instruments of other countries.
1 Judicial review is, in general, designed to resolve social conflicts in terms of law. Courts, unlike legislators, do not initiate proceedings, and they constrained by jurisdiction. Courts are restrained by their professional attitudes. Judges are professionally trained to consider every argument, however curious, and to balance different arguments against each other. Normally they will give reasons for their decisions, thereby enabling others to reconstruct the court's line of thought.
2 The Government of Mongolia, in particularly drafting group of this law, has worked closely with German counterparts for long time in preparation of this procedural law and it is derivative work of German administrative procedural law with some national distinctions. Lawyers, judges and law professors from both countries worked together and exchanged their ideas in order to create the most proper administrative procedure for Mongolia. Prospective teachers for future judges and lawyers were prepared in Germany and Mongolia by German administrative law experts and judges as well as Mongolian professionals. |
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The Proportionality Principle in Korea and Democratic Accountability |
Seong Wook Heo |
As in many other Asian countries influenced by German jurisprudence, the principle of proportionality is quite commonly used as a criterion to decide the legality of administrative action in Korean administrative legal adjudication.
Different from the Chevron deference rule in U.S. administrative law, the proportionality principle allows the judicial branch to directly intervene into the administrative decision itself. In this sense, the issue of democratic accountability can be raised surrounding the applicability of the principle.
In this paper, I will firstly explain the dogmatic contents of the proportionality principle in Korea and its application to the administrative judicial review cases.
On top of that positive analysis, I will try to evaluate the validity and effectiveness of the principle in controlling administrative discretionary power by judicial review. In doing that evaluative analysis, I will also try to find out whether the insights from the public choice theory could help better understand the essence of the issue and provide a better judicial policy options. |
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Heuristic Proportionality and Vernacular Sovereignty |
Cheng-Yi Huang |
TBA |
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Making Proportionality Analysis Act Proportionate: Minimal and Maximal Scrutiny Baselines for Its Judicial Intensity |
Hongzhen Jiang |
As a judicial review standard toward administrative action, Proportionality Analysis is conventionally used upon traditional administrative law models - Gesetzesvorbehalt principle in Germany, transmission belt model in USA, ultra vires doctrine in UK, and administration according to law in Mainland China etc,. These models are all theoretically based on the hypothesis of democratic legitimacy and delegation doctrine, and regard bureaucrats as only the executive branch for legislature, without any discretion in decision making. Under this situation, proportionality takes a role as means-and-ends scrutiny with limited scope. For example, typical field for proportionality analysis usage in Mainland China is administrative penalty action, because it is the most common field that the statutes leave the methods alternative to achieve administrative implementation.
However, the emergence of modern regulatory state is changing this situation. Nowadays, massive administrative regulations cover a wide range of specific administrative fields in order to deal with complicated governance tasks. Legislation often uses ambiguous expression of delegation, or even without intelligible delegation statutes to administration. Consequently, bureaucrats exert wide discretionary powers, especially in policy making process with free will to decide key regulatory purpose and choose specific regulatory tools. In such a regulatory state background, Proportionality Analysis has the strong necessity and possibility to be used in a more active way and a wider scope of administrative law, in order to control the administrative discretion.
This paper, focusing on the judicial review with Proportionality standard, mainly involves the detailed judicial techniques and scrutiny skills during the process of evaluating the regulatory alternatives with Proportionality Analysis. Following a three sub-standards review, Proportionality Analysis goes into the merits of administrative action, in both decision making outcomes and purely implementation. While taking regulatory state as the background, Proportionality Analysis has a different scheme and approach in respectively Suitability, Necessity and Balancing review steps, comparing to traditional executive atmosphere. For example, Suitability Standard needs to set up a multi-leveled regulatory purpose structure and use a legislative fact review to make the decision of whether the means adopted by the government are rationally related to the legal purpose; as a test to less restrictive means, Necessity Standard ought to be based on the classification of different scheme of regulatory tools, then discuss the less restrictive standards to various spectrum. A single-lined standard used in traditional Balancing Test between interests attained by the means and the burdens imposed on the individual, is also facing challenges.
Proportionality may help to control the discretionary administrative powers in policy making. Meanwhile, it also empowers the court to replace policy choices with its own judgments, which leads to the perennial counter-majority debate and the proper role of the judiciary in a democratic state. The paper also illustrates the possible ways to resolve the dilemma, with focus on the judicial intensive scrutiny classification, proof burden allocation system and judicial limitation in acceptable scope in litigation.
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Foundations and Functions of Proportionality Principle as a “General Principle” in Japan |
Narufumi Kadomatsu |
The doctrine of proportionality principle was imported from Germany into Japanese administrative law in pre-WWII period as well as other basic concepts and doctrines. While the principle is widely accepted as one of the “general principles of administrative law”, discussions continue over its legal foundation (unwritten law/ the Constitution Art.13) and its scope (limited to regulatory administrative activities/ whole area of administration).
The proportionality principle, as well as other “general principles of administrative law”, has two functions: legitimizing judicial intervention in administrative activities and assuring predictability of the intervention. Some judicial decisions are said to be the application of the principle. However, since Japanese judiciary rarely mentions abstract doctrine itself, there are discussions whether those judicial decisions can really be regarded as such.
The prominent field of the proportionality principle is administrative discretion control. However, since the very legal nature of discretion is open to question, it is not clear whether the principle is legal rule which limits discretion from outside or it can also serve as the rationality control from inside. In relation to this, the relationship between other formulas of discretion control such as “socially accepted view” or “decision making process control” will be discussed.
We can also observe the recent discussion over the proportionality principle in constitutional law, namely in the field of judicial review. There has been a recent trend of re-evaluation of this principle with German origin, while the American “standards of review” doctrine had been the dominant understanding among Japanese scholars since 1980s.
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Proportionality Review of Administrative Discretionary Powers: A Comparative Approach |
Marta Legnaioli |
The principle of proportionality and its application in discretionary power review has become a key topic of discussion for European jurists due to the influence of European Court of Justice’s case law in national legal orders. Being inspired by Professor Weiler critiques on most common approaches adopted in comparative analysis, this paper will not be focused on the mere comparison between the European and the Italian interpretation of the principle of proportionality. The attempt will be rather to understand the juridical phenomenon of proportionality and to point out some of the reasons at the root of the expansion of proportionality in judicial review.
Proportionality is widespread in many disciplines, from math and geometry to legal science. Since Nicomachean Ethics written by Aristotle the idea of proportionality has shown a bond with the concept of justitia distributiva. Despite its variety of meanings, the notion of proportionality has some common features: firstly it explains a relationship between two or more parties; secondly it characterizes the above mentioned relationship by suggesting a sense of balance. As known in constitutional and administrative law, proportionality assumes the value of a general principle addressed to regulate conflicts between public interests vis à vis individual interests. The principle originated in 19th century in German legal order in the field of police power, where its definition was articulated into three concepts: suitability, necessity and proportionality stricto sensu .
Thanks to its flexibility and defined structure, proportionality spread over European judicial review. At the beginning ECJ recognized proportionality as a general principle of Community law and since the Treaty of Maastricht it was mentioned as one of the principle governing the action of the Union (art. 5 TFUE). Since then, the lawfulness of a measure is subjected to proportionality control: the measure has to appear appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation (suitability test); moreover whenever the choice has to be made between several appropriate measures, the administration has to prefer the least onerous for private parties (necessity test), and the disadvantages caused must not be disproportionate to the aims pursued (proportionality strict sensu).
Proportionality descends from the “rule of law” principle originally recognized by the ECJ under the definition of the European Community as a “communauté de droit ” and enshrined in the Treaty of Lisbon as one of the fundamental principles on which the Union is based (art. 6 TUE). This principle expresses the subjection of European institutions and Member States – in so far as they apply EU law – to judicial review on the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.
The analysis of the influence exercised by the EU Law in Italian administrative judicial review presumes a deep study of the principle of proportionality as applied by ECJ both in the action of annulment (art. 263 TFUE) and preliminary rulings (art. 267 TFUE).
In EU Law, the violation of proportionality is the main ground of review discretionary powers because it requires a reasonable balance between means – ends and between coût –avantages of public action. The other important ground of review of discretionary powers is the misuse of power (art. 263, par. 2, TFUE). Judicial review of discretionary powers is limited by the principle of separation of powers: judges cannot substitute their evaluation of facts to the one given by administration. As a consequence, unlike the review on the mere interpretation – where judges have the “last word” – within this review the administration has the “last word” on the balance among different interests.
Unlike EU Law, Italian review on discretionary power is identified with one ground of review: the so called “eccesso di potere ”. Historically the “eccesso di potere” review is based on a symptomatic approach: the incorrect use of discretionary powers is not shown directly, but throughout the presence of a symptom, such as the incomplete, contradictorily or illogical motivation, unequal treatment, lack of reasonable, error or misinterpretation of facts.
A compared analysis of European and Italian administrative case law will demonstrate a convergence on discretionary powers’ review, even if the tools used by judges are different. Those evaluations bring a first conclusion: the influence of proportionality analysis lead Italian administrative law to a metamorphosis of the “eccesso di potere”, which is based on a more direct approach. At the same time, a deep analysis on the circulation of the principle of proportionality across Member States is a fundamental starting point to identify common features on the safeguards against any abuse of power by the administration and to bring different ground of review to a common language.
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An Unprincipled Principle? - The Principle of Proportionality in Environmental Law in Taiwan and EU |
Chun-Yuan Lin |
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The Regulatory State and the Proportionality Doctrine in India: A Roadmap to Strengthen the Doctrine |
Ananth Padmanabhan |
With a shift in paradigm from a highly regulated economy to a neo-liberal one, the challenges faced by the Indian State in terms of balancing of several interests has increased manifold. While the State-controlled economy of the past adopted a binary approach to any proposed exercise of the fundamental right to carry on trade, thus confining itself to the issue of whether or not to allow the carrying on of that particular trade or business and in most cases deciding to not allow such business, the neo-liberal economy proceeds on the assumption that there cannot be any barriers to the carrying on of such trade or business except to the extent of public interest concerns. The challenge then posed by the neo-liberal economy is in engineering such restrictions on business as are suitably tailored to fulfil the perceived public interest without imposing unreasonable burdens on the carrying on of the business in question. This is precisely where the proportionality doctrine steps in, as a measure to assess the legal correctness of the policy choices made by the regulatory State.
In this paper, the author explores the contours of the proportionality doctrine as it has evolved in Indian jurisprudence through the years, and the scope of application of this doctrine in three important areas of legal protection and regulation, namely copyright law, patent law and anti-trust or competition law. The first part of this paper is a study of the proportionality doctrine as it has been applied in India, while assessing the reasonableness of restrictions placed on vital fundamental rights including the right to free speech and the right to carry on business. During this era, the Supreme Court never used the term ‘proportionality’, rather using the balancing of rights versus interests approach to hold a restriction as reasonable or otherwise. Despite this, the approach of the Court bears striking similarity to a proportionality framework of analysis. However, when it came to administrative action, Courts in that era were clear that the applicable standard was that of Wednesbury unreasonableness. From here, the paper proceeds, in its second part, to take a critical look at the manner in which the ‘proportionality doctrine’ has later been misunderstood or misapplied by Indian Judges, who often confused this idea with disproportionate penal or statutory action. Interestingly, proportionality, as understood from this incorrect perspective of disproportionate State action, has been wrongly tied in with the right to equality and right against arbitrary State action guaranteed under Article 14 of the India Constitution. This has considerably weakened the proportionality standard as an independent framework for review of both statutory and administrative action, and completely muddled the contours of separation between the Wednesbury unreasonableness standard and the proportionality standard. The paper argues that as the state of administrative law stands today in India, there is a compelling need on the part of the Indian Supreme Court to completely revamp its understanding of the proportionality doctrine. The moot question is, where does one begin? The third and fourth parts of this paper seek to address this issue.
The third part of this paper starts with a study of the regulatory regime brought in post the Treaty on Trade Related Aspects of Intellectual Property Rights (TRIPS). Though there is a strong international commitment thrust upon India to respect the private commercial rights of inventors and creators, the Indian Patents Act, 1970, vests power with the Controller of Patents and the Intellectual Property Appellate Board to grant compulsory licenses for exploiting the patented inventions. The grant of such licenses, and the terms upon which they are so granted, depend ultimately on a delicate balancing between the different competing interests, as recently witnessed when the first compulsory license was issued in respect of Bayer’s patented Nexavar drug. Similarly, the copyright law regime permits the grant of statutory and compulsory licenses for broadcast of copyright protected musical and literary works, sound recordings and cinematograph films. Here too, balancing of interests using the proportionality framework is integral to a fair and legally sustainable outcome. Finally, the exercise of wide powers conferred upon the Competition Commission of India under the Competition Act, 2002, to regulate and keep under check, anti-competitive practises, necessitates a balancing of the private right to carry on trade with the benefits conferred upon the public by a healthy fostering of competition.
After examining the above three domains of legal regulation, the paper proceeds to analyse the judicial pronouncements in these areas using the proportionality doctrine. In its fourth part, the paper concludes that a justification of outcomes in these three emerging areas of legal regulation by placing express reliance on the proportionality doctrine is not only appropriate but also inevitable. While courts and regulatory bodies are, in effect, doing so, the express articulation of the doctrine of proportionality is sorely lacking in the existing precedent. The paper concludes that such articulation is the need of the hour, both in order to give a sound conceptual basis to the decision-making process in these areas as well as to truly revive the proportionality standard of judicial review in India and thus extend its application to other areas of economic regulation as well. |
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How to Compare the Length of Lines to the Weight of Stones: Balancing and the Resolution of Value Conflicts in Public Law |
Niels Petersen |
The principle of proportionality is on the rise. A growing number of courts from different jurisdictions refer to some form of proportionality in their jurisprudence. At the same time, the principle gets increasing attention in international legal scholarship. However, the proportionality has not remained uncontested. In particular, some scholars have severely criticized the core of the proportionality test, which involves a balancing of competing values. This balancing is accused of being irrational because it requires placing incommensurate values on the same scale. In a famous dictum, Judge Scalia once claimed that balancing competing constitutional values is like determining “whether a particular line is longer than a particular rock is heavy”.
The proposed paper tries to reconstruct the analytical debate on balancing and to identify the core dividing lines. For this purpose it compares balancing to two competing approaches to resolve conflicts between individual rights and public interests – reduced proportionality tests on the one hand and categorical forms of reasoning on the other. The paper argues that what is at stake in the debate on balancing is not the ‘rationality’ of legal reasoning. Courts rather have to trade off competing risks in order to decide whether balancing should be the preferred approach.
The paper will identify three dividing lines of the debate. The first dichotomy is between deontological and consequentialist understandings of rights. A purely deontological conception of rights necessarily requires a categorical conception or rights interpretation as balancing logically implies that rights are not considered as ends per se, but as values that have a price and that may, consequently, be partially outweighed by specific public aims. Second, there is a tension between predictability and flexibility. Categorical approaches enhance the establishment of rules, which have a guiding function for future judicial decisions. This increases the predictability of the legal system, but also reduces its fit as strict rules usually have the tendency to be over- and underinclusive. Balancing gives the judges more flexibility to tailor a solution for each individual case.
Finally, the discussion about proportionality and balancing is essentially about different conceptions of what role courts should play in a democratic society and in the political system. Balancing conveys political power to judges. It gives them the ability to evaluate competing legal values. The weaker the restrictions on this evaluation that are imposed by the legal method are, the more these evaluations have to be qualified as an act of policy making. This is probably the core of the critique of the ‘rationality’ of proportionality balancing. If the ‘rationality’ of balancing is criticized, critics basically claim that the legal ties of proportionality are too feeble to prevent judges from policy making. Therefore, they either advocate approaches that are more deferential to the legislator, such as the reduced proportionality test, or more constraining for the judges, such as the categorical approaches.
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A Tale of Three Cities: Judicial Attitudes towards Proportionality in Tokyo, Canberra and London |
Joel Rheuben |
It is a common observation that the relative dearth of scholarship on comparative administrative law is in part due to the difficulty of comparing the vastly different characteristics of administrative law in each jurisdiction, reflecting national culture, constitutional values and historical conditions.1 Whether or not this observation is entirely accurate, it ignores that the reverse may also be true: that the failure of administrative law scholars and practitioners to pay adequate attention to developments in other jurisdictions has entrenched and widened national divergence.
Japan is one example of a country with a rich tradition of comparative administrative law scholarship – primarily focused on German administrative law,2 followed by French, with US and English administrative law a distant third. This is perhaps not surprising, given that Japan is a civil law country with its modern legal system based in large part upon German law. However, this fact alone is not terribly revealing.3
In fact, at a superficial level, Japan’s administrative law system is institutionally quite similar to that of Australia, a common law country. Both Australia and Japan (unlike France, for example) are parliamentary democracies, with each parliament fully empowered to delegate discretionary powers to the executive. Both (unlike England) have written constitutions enshrining the separation of powers and explicitly providing for judicial review. Both have also (unlike England) codified their respective rules for judicial review. At the same time, Japan significantly departs from Germany and other civil law jurisdictions in that there is no formal distinction between public and private law, nor a separate administrative court for hearing administrative law disputes. Under Japan’s American-authored postwar Constitution, all claims are channeled through the ordinary courts. In this, Japan is far closer to the common law countries.
Nevertheless, the standards of judicial review in Japan and Australia differ greatly. Japan continues to be influenced by German administrative law principles, such as an emphasis on discretion (Ermessen), and an historic tendency to review the reasonableness of substantive outcomes of administrative action, rather than faults in procedure or reasoning.
I will argue that this difference in standards of review can be attributed not to institutional differences, but to the degree and focus of comparative administrative law scholarship in both countries. In Japan, the intense study of German administrative law has in turn has heavily influenced judicial reasoning. By contrast, Australia has almost no history of comparison with continental administrative law, with scholars and judges alike looking instead to other common law countries. In between lies England, which has increasingly been exposed to developments on the continent as a consequence of its membership of the European Union and, in particular, the adoption of the Human Rights Act in 1998.
This contrast is perhaps best demonstrated by the approaches of courts to the proportionality standard of review. English courts previously viewed, and Australian courts continue to view, proportionality as an excessive interference with administrative discretion, closely resembling “merits” review. Japanese courts, however, share the view of their German counterparts that proportionality review is a form of “minimal” review, precisely because it can be applied only when authorities have manifestly exceeded their discretion, therefore obviating the need for intense scrutiny of administrative reasoning.
I will demonstrate that the principle of proportionality has been studied by Japanese administrative law scholars since the prewar era – although the administrative court system then in place generally precluded substantive review of administrative conduct – and adopted by courts early into the postwar era. English courts took tentative first steps towards adopting proportionality in the 1980s,4 and embraced it fully following the introduction of the Human Rights Act. Some scholars now advocate proportionality as a general substantive standard of review for discretionary decisions, to replace the more traditional test of Wednesbury unreasonableness.5 On the other hand, proportionality only entered the Australian administrative law vocabulary more recently as a consequence of indirect exposure via English case law, and has to date been rejected by Australian courts.
Leaving aside the question of whether proportionality is the preferable standard of review, it is submitted that greater focus in Australia on continental jurisprudence could help to bring Australian administrative law, like that of Japan and England, more into line with developments outside of the common law world.
1 See recently e.g., Janina Boughey (2013) “Administrative Law: the Next Frontier for Comparative Law”, International and Comparative Law Quarterly 62(1) 55-95.
2 See Frank K. Upham (1997) “The Place of Japanese Legal Studies in American Comparative Law”, Utah Law Review (1997) 639-656.
3 Jacques Ziller argues that where public law is concerned, it is far harder to group countries under the common and civil law families: Jacques Ziller, “Public Law”, in Jan M. Smits (ed.) Elgar Encyclopedia of Comparative Law (Edward Elgar, Cheltenham; 2006), pp. 604-605.
4 Especially under Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
5 See Paul Craig, Administrative Law (Sweet & Maxwell, London; 6th ed. 2008), pp. 664-672. |
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Proportionality’s Blooming and Development in China |
Jing Wang |
Proportionality is absolutely the imported principle in China. Until now there is no any law which enacts proportionality and it has not admitted by the legislature, but in the important document formulated by the State Council in 2004 which described the vision of government by law and named Full Implementation of the Platform for Promoting Administration according to Law, the main contents of proportionality was first illustrated in official document.
Actually both the governments and the courts are using proportionality principle intentionally or unintentionally. In recent years many local governments formulated special standards and rules for the arbitration power because they found there were so many vague and uncertain articles about arbitration in laws, statutes and regulations. The phenomenon is taken as self-constrain of the governments. They do not use the word of proportionality, but the standards are consideration production of means-ends. Is not it the simplest and most basic adoption of proportionality? After several years tracing of administrative law theses and books, discussion on administrative arbitration and standards also become one of the booming areas in administrative law research. As for the courts, because according to the Administrative Litigation Law, they only have the power to examine the concrete actions not the abstract actions, it seems that their roles in controlling reasonability of administrative actions are very limited. But through reading the decisions from the Supreme Court and local courts carefully, there are many cases which are examined and decided by the contents of proportionality principle including planning cases, administrative punishment cases and re-education through labor cases etc.
The conclusion is proportionality has been accepted and understood by the scholars, the officers and the judges in China after over ten-year legal education and propagation. It maybe will develop faster in the near future. Some scholars said it even will become the substitute of reasonableness principle which is another fundamental principle in China because proportionality is easier to understand and use. But the fate of proportionality is influenced by three factors: first, with the expansion of case scope in administrative litigation law, if official documents below the regulations can be examined by the courts, proportionality principle will be used more often and China will also face with the debates of judicial function and countermajority, which obviously is not the hot topic now. Second, how the academics explain and tell the story of proportionality will influence whether and how the officers and the judges use it. Third, it also depends on adoption of stare decisis in administrative law judgments or whether the courts play a role in the structure of political structure and social life.
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The Promises and Perils of the Proportionality Doctrine in Singapore: Comparative lessons from Malaysia and Hong Kong |
Po Jen Yap |
The proportionality doctrine has not been accepted as good law in Singapore, either at the constitutional1 or administrative2 level. In this paper, I will seek to analyse the ostensible textual argument against the application of this doctrine and explain why it should not pose an absolute bar against the doctrine’s applicability in Singapore. In making my argument, I will also show how comparative lessons from Malaysia and Hong Kong can cast light on this debate.
Next, I will examine the normative objections against the application of the proportionality doctrine. Their criticisms usually come in two forms. The first form, commonly termed the ‘internal critique of balancing’,3 questions whether incommensurable interests can be identified, valued and compared. According to the second form, commonly termed the ‘external critique of balancing’,4 critics question whether balancing is a legitimate method of adjudication as it appears to replicate the tasks of a legislature and allows the courts’ cost-benefit analysis to supplant the legislature’s determination. In this part of the paper, I will respond to both normative objectives against the proportionality analysis.
Finally, I will explore the perils and challenges of applying the proportionality analysis. Specifically, I will address the role that judicial deference should play in the proportionality analysis.
Essentially, I would argue that common law courts in Asia should develop a ‘sliding scale’ of review to determine whether the rights-infringement in question is proportionate. A variable standard of review rightfully acknowledges that judges labour under conditions of epistemic uncertainty during constitutional adjudication that can be empirical and/ or moral in nature. Where courts are unsure whether they have the necessary expertise to assess factually the correctness of polycentric legislative measures and/ or they are uncertain whether their normative disagreements with certain legislative objectives are morally correct, the sliding-scale grants latitude to the political branches to make these constitutional determinations.
A variable standard of review therefore recognises that the judicial conception of individual rights should not always trump the legislative determination of collective welfare, and that the judicial role is ‘not privileged above common politics but is one institutional method of problem solving acting in concert with other institutions’.5
1 Chee Siok Chin v Minister for Home Affairs, [2006] 1 SLR 582 (High Court of Singapore).
2 ibid.
3 T. Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale Law Journal 943, 972.
4 Ibid, 984.
5 Jeff King, ‘Institutional Approaches to Judicial Restraint’, (2008) OJLS 409, 441. |
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Proportionality as a Conduct Rule |
Melissa Hye-Sun Yoon |
The proportionality principle in the administrative law in Korea is not only a critical criterion used by court to control over the abuse or arbitrary exercise of discretionary power but also being firmly recognized as the most important tool in judicial review of all administrative actions and individual areas of administration. It is generally accepted that the Rule of Law, as a constitutional principle, and the provision “only if necessary for the national security, maintenance of order or the public welfare” in Clause 2, Article 37 of the Constitution of the Republic of Korea provide the legal grounds for the principle. Most of the discussions on proportionality made in the field of administrative law in Korea are premised on the idea that it is a judicial, ex-post control mechanism, i.e. a decision rule to ensure the legality of administrative actions.
This presentation aims to explore the possibility to extend the functions or scope of of the proportionality principle. It is well known that the attitude towards controlling the executive power has been changed in the modern society as public administration has becomes more specialized and complex. It now secures the independent democratic legitimacy as part of the state power in accordance with the Constitution, and more notably, it has the primary and direct duty to pursue the public interests and the social justice, which has heightened the awareness that the executive should not be fully controlled by the legislature and the judiciary but be able to fulfill its responsibilities in an efficient manner with autonomy and responsibility. In this administrative (law) environment, what is most urgently required is to develop a detailed and ex-ante methodology to evaluate, harmonize and solve conflicts between private and public interests, among public interests and those among values.
In this context, the proportionality principle can be considered from the perspective of it being a tool to secure efficiency in and optimize administrative actions. The legal ground for the above approach would attract the efficiency principle. Efficiency is being recognized as a constitutional principle and general principle of the administrative law today. It indicates that the government should adopt the most efficient means to achieve its goals, and, further, seek the optimum balance between the goal and its means.
In fact, it can be said that the proportionality analysis is innately and readily applied to select the most efficient, optimal means to achieve the administrative or policy goals in government and administrative practice. It is only that theoretical discussions on this issue are not active in the academic field of the administrative law in Korea. For example, it is important to develop a detailed guideline for decision-making based on scientific evidence to achieve efficiency in regulation. To this end, the Korean government has adopted the cost-benefit analysis and the regulatory impact assessment and uses them to determine whether a regulation is excessive in view of the principle of proportionality. These are the institutionalization of balancing mechanisms for competing interests to apply proportionality. While efficiency and optimization are the guiding principle for actions pursuing goals, the cost-benefit analysis and the regulatory impact assessment serve as the means to realize that principle.
To sum up, efficiency requires proportionality to function as a conduct rule. Proportionality as a conduct rule is meaningful for the following reasons. First, it serves as a tool to assess efficiency of administrative actions to have the government voluntarily seek individual, specific and optimized means to achieve its goal. Second, it enables the government to self-control its actions by serving as a standard for review of not only legality but also propriety. The judicial review of administrative actions in Korea is limited to legality review. Propriety of administrative actions can be reviewed only through administrative appeals and it is often hard to discern the impropriety. The best example of an improper administrative action would be the case where less efficient means are selected among multiple alternatives. Third, it enables to ex-ante control illegal or improper government choices ex-ante. This is especially important in risk regulation, since it is highly likely that a judicial review of a risk management tool of question as, which, by its nature, will take place after indeterminate injury or damage occurred, will be futile. Fourth, by and in this context, proportionality is making connection to the democratic accountability. The proportionality as a conduct rule can provide detailed criteria for objective assessment on the government’s democratic accountability regarding its actions in terms of efficiency and optimization.
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