On Constitutionalism and Proportionality
By Ruairidh Morrison
Published on September 1, 2016
The “new model” of constitutionalism has come to permeate the constitutional structure of many countries in recent history. Its enhanced focus on rights and the rebalancing of the relationship between courts and legislatures has allowed the principle of proportionality to develop as increasingly decision-makers try to reach a balance between competing interests. Support for the new model is wide-ranging and often focusses on its ability to protect rights and reallocate power among the branches of government. On the other hand, critics of the “new model” believe that it has resulted in a judiciary that makes political decisions further blurring the lines between law and politics.
In building my response I have segmented my essay into two sections: firstly, I focus on proportionality, demonstrating that it is core to the “new model” and mapping its successful migration across jurisdictions to support this point. Secondly, I will support the proposition that the “new model” has politicised the judiciary resulting in a blurring of the lines between constitutional law and politics. In developing my argument, I have unpacked the arguments of both the proponents and opponents of the “new model”, while drawing comparisons between the old models and the “new model” before concluding. Furthermore, throughout my response I will refer, by way of example, to different jurisdictions, including Canada, the United Kingdom, Israel and South Africa. Premising any debate about legacy, however, the principle of proportionality must be contextualised within the “new model”.
Stephen Gardbaum has articulated the “new model” (NM) in his book ‘The New Commonwealth Model of Constitutionalism’. The NM represents a shift from the two old models of legal constitutionalism and political constitutionalism, representing a third-way as an ‘intermediate hybrid that makes possible a form of proportional representation among the strengths of both legal and political constitutionalism, whilst also severing or minimising the major weaknesses of each’. Gardbaum’s articulation of the NM is partly correct; the NM does represent a form of proportional representation between both other systems. Inevitably, though, as I will demonstrate it does too inherit some of the major weaknesses of both old models.
Rights-based legislation has facilitated the spread of the NM. With its emphasis on political rights review and weak-form judicial review, the principle of proportionality has also grown so as to strike a fair balance between often competing rights and interests. Thus to support the contention that proportionality is core to the NM, I will look at case law and commentary from NM countries, illustrating the use of proportionality in these countries.
It is worth noting that the principle existed some time before the NM. Indeed, Lord Neuberger traces the principle ‘back via Aquinas to the Nicomachean Ethics and beyond’ while many trace it back to German administrative law, specifically regarding the relationship between citizens and the police. The real growth in the principle, though, can be attributed to the growth in rights-based instruments, as Bernhard Schlink noted: ‘With the far-reaching constitutional protection of rights and freedoms, the principle of proportionality spread across Europe, into the Commonwealth, to Israel, Central and South America, and beyond’.
Canada is the starting point I use for both the development of the NM and the modern day proportionality principle. Gardbaum notes the influential impact Canadian law has had: ‘Canada has been a pioneer in institutionalizing the new Commonwealth model of constitutionalism’. The enactment of the Canadian Charter of Rights and Freedoms in 1982 marked the birth of NM constitutionalism in Canada with its attention on individual rights and weak-form judicial review. It was not long before the Oakes test of proportionality developed in response to the court’s attempts to reach a balance. This oft-cited test provided the ‘clearest and most influential analysis of proportionality within the common law’. From Oakes the test has been cited numerous times, domestically and abroad: ‘The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu and Zimbabwe has made Oakes one of the central models for rights-based constitutional adjudication.’
The gradual decline of political constitutionalism in the UK gave rise to the proportionality principle. The ECHR was given mention in UK court cases on many occasions prior to the Human Rights Act, often lamenting the court’s powerlessness to give effect to its provisions.
Following the creation of the HRA, proportionality using the Oakes test has been applied and explained. Two recent cases – Lord Carlile and Bank Mellat – discuss at length the principle and its application. Aaron Baker notes the change in the UK: ‘Prior to the UK’s adoption of the Human Rights Act 1998, proportionality enjoyed only sparing patronage by UK courts. The HRA, however, by making the ECHR enforceable in UK courts, has introduced proportionality into UK public law to a degree some have called irreversible’. Two points can, therefore, be deduced from the case law and comment above: firstly, the Oakes test has successfully migrated the proportionality principle from Canada to the UK; and, secondly, the NM has facilitated the use of the proportionality principle, supporting the proposition I make.
From Europe the principle has migrated across many different legal systems. I will now briefly summarise its use in a number of other countries. In Israel, proportionality has been used increasingly in case law, particularly during Aharon Barak’s Presidency of the Supreme Court. Basic Law: Human Dignity and Liberty is the starting point of the NM in Israel and subsequently use of proportionality has become commonplace. In the ‘Second Security Fence’ case, proportionality was recognised domestically because ‘it was a universal solution to a general problem in law’.
In both New Zealand and Australia the growth of the principle has been less revolutionary. Courts in New Zealand have been reluctant to endorse the principle fully as an independent ground. This, however, is changing and by 2007 ‘proportionality has been recognised and applied as a distinct ground in a range of situations’. Further case law cements its existence in New Zealand ; indeed the debate is not about its existence but whether it is, on its own, a distinct ground of judicial review, or whether it is part of other grounds of judicial review. Similarly, in Australia the courts have tended to accept it in association with other grounds of judicial review. Finally in South Africa, there is a specific proportionality clause in the Constitution, by virtue of section 36. It has been submitted that despite envisaging a wide balancing test ‘the court does not engage in a balancing exercise in substance’.
In the last three examples proportionality has been proved to have a less noteworthy existence than in the first examples. Despite this, the doctrine has been accepted in all of the NM jurisdictions, by virtue of both case-law and statute. Thus, while its application may be disputed, its existence is not and this proves that the doctrine has migrated from one constitutional order to another. The growth of the principle across the various constitutional orders is proof that it is ‘core’ to the NM of constitutionalism. I will now examine the contested legacy of the NM.
To support my submission that the NM is inherently political I have outlined the following segment as such: first, I detail my case for the NM leading to a politicised judiciary. Having done so, I then examine the counter-arguments to my claim and my retorts to those claims. Finally, I have outlined my conclusion on the basis of the arguments laid out.
In the UK the incorporation and acceptance of the proportionality into domestic law following the HRA was a marked change from the previous system. Using the example of the right to privacy, pre-HRA case law demonstrates a resistance from the judiciary to infringe upon the principle of parliamentary sovereignty. Sir Robert Megarry V-C explained the demonstrable reluctance of the courts to interfere on perceived political issues:
The extension of the existing laws and principles is one thing, the creation of an altogether new right is another. No new right in the law, fully-fledged with all the appropriate safeguards, can spring from the head of a judge deciding a particular case: only Parliament can create such a right.While in Kaye v Robertson the inability of the court to intervene on a clear breach of privacy is demonstrably clear. Following the HRA, however, the courts have increasingly given judgements on political issues, blurring the lines between the legal and the political. The court’s decision in the Belmarsh prison case was a plainly political decision, inconceivable in the pre-HRA UK. Furthermore the decision in Anderson where the court usurped the power of a democratically elected politician, dragging the once independent judiciary further into the political arena. The interpretative obligation on courts, under section 3(1), affords them additional power to define legislation and shape its future application, without permitting a response from the legislature. Lord Steyn opined that it is possible to ‘adopt an interpretation which linguistically may appear strained’, allowing courts to shape legislation to fit their own linguistic preferences giving them a power which is ‘a significant limitation of Parliament’s sovereign will.’ Prior to becoming a Supreme Court Judge, Lord Sumption observed the growing tendency of the courts to ‘intervene in the making of macro-policy’ which, he said, ‘has become more pronounced’. He went on to say judges are ‘not politically partisan and some cases involve them dealing with matters which in a democracy are the proper function of parliament and of ministers answerable to parliament and the electorate’.
As the judiciary’s political involvement has increased so too has the scrutiny of their decisions. Politicians are less constrained in their criticism of the judiciary, as exemplified by Theresa May’s criticism of the judiciary in 2013: ‘some judges seem to believe they can ignore parliament’s wishes… Our democracy is subverted when judges decide to take on that role for themselves’. The European Court of Human Rights decision in Hirst v UK is an example of a supranational organisation imposing an obligation on the UK using proportionality in the context of prisoners’ voting rights. The decision by Strasbourg was a further infringement on UK sovereignty and demonstrates the growing politicisation of the judiciary as a result of the NM framework. Having illustrated the rise in political jurisprudence under the NM in the UK, I will now examine the jurisprudence in other NM countries to exemplify a similar pattern.
Ran Hirschl, in ‘Towards Juristocracy’ maps the rise of judicial review in four countries: Israel, Canada, New Zealand and South Africa, each of which are examples of NM constitutionalism. I will look to examples from some of these countries, outlining the events and case law which have made the judiciary political. Following the advent of NM constitutionalism in Israel, the court has played an active part in the resolution of many political disputes. Under the stewardship of Aharon Barak, the Supreme Court has adopted the proportionality principle to develop its jurisprudence and adjudicate upon political issues. The two ‘Meatrael’ cases support my viewpoint; in the first case, when the court ruled in favour of the company, balancing Israel’s Jewish character with the freedom of occupation, the court showed a willingness to engage in proportionality analysis of rights thus imposing a somewhat political decision on the legislature. Following the modification of the Basic Law by the Knesset in response to this decision the second decision of the court was to allow the ban on the importation of non-kosher meats. The resolution may seem preferable as it seems to show the NM in practice, but Hirschl contends that:
Behind this decision, however, lay immense political pressure on the court not to allow any further erosion of the idea of “Israel as a Jewish state” as the highest constitutional norm… [it] clearly illustrates the impact of the new Basic Laws on the contours of political discourse concerning the ideological foundations of Israel.
Thus while the decision may look like one that was reached after a constructive dialogue involving both courts and the legislature, this is not accurate. Viewed within the wider context at the time, and the intense pressure on politicians to preserve Israel’s Jewish character, the courts stepped in and settled the issue. The Israeli Supreme Court has even extended its jurisdiction to rule whether a proposed bill can be tabled in the Knesset, and has ruled on some of the government’s highest policy objectives. Firstly, in the Targeted Killings case, the court applied the proportionality principle to decide whether the government’s Targeted Killings of terrorists was lawful. As far as political decision-making goes this is an issue which is central to the internal politics of any country: the security of its citizens. For a court to adjudicate on such an issue such as this represents a clear politicisation of the judicial function.
Secondly, in Mara’abe v Prime Minister of Israel the court again applied the proportionality principle to another question regarding the security and safety of Israeli citizens. Notably in this case, President Barak seemed to suggest that every political decision was justiciable, and that nothing done by the Israeli Defence Forces, exercising their discretion, was non-reviewable in a court. As an enthusiastic proponent of proportionality, Barak worked hard to normalise this position. This is illustrated by the strong streak of judicial activism that came to encompass the judgements from his court. David Kretzmer acknowledged this, saying ‘the net of judicial review extends over all arms of government, and over almost all types of activities’. The shift in Israel away from political legislating to judicial legislating has in large part been as a result of the NM. The NM is an attractive alternative for Israeli politicians who operate in a politically partisan environment; doing so allows them to abdicate responsibility for decisions at the expense of democracy. Martin Edelman has commented on the shift of power in Israel, observing that ‘in the highly politicized democracy that is Israel, authority – and considerable political power – has flowed towards its premier non-partisan institution, the civil judiciary.’
The Quebec question has been the subject of endless political jurisprudence in Canada. Most notably in the Reference re Secession of Quebec case the court outlined the criteria that must be fulfilled to enable a legitimate vote on the issue, and also, intimated that secession could take place if the criteria were fulfilled. This was a momentous step in the ‘judicialisation’ of Canadian politics, where the court, not the legislature outlined the criteria that must be fulfilled to allow for the break-up of the Federation. Stacie Hunt has noted: ‘The Supreme Court of Canada has taken over the question of whether Quebec may succeed from Canada, transforming Quebec’s political status into a judicial question in which they became the central deciding body.’
Political judgements have not been restricted just to questions on secession. A string of cases on minority language rights have developed that further entrench the political nature of Canada’s courts. The Quebec Protestant School Board case involved the court invalidating part of the Quebec Charter on the basis of its incompatibility with the Canadian Charter, interfering with provincial educational policy. Furthermore the Ford case illustrates further intrusion on provincial policy by the Supreme Court ruling that exclusive use of the French language on commercial signs was unconstitutional. Finally, in Mahe v Alberta the Supreme Court once again flexed its muscles, ruling that the Province was responsible for providing and funding educational facilities and intensive instruction in French for the francophone minority. The Supreme Court in Canada has played an influential role in driving political policy using the ultimate authority of the Charter as a justification for its actions. As its power has increased to scrutinise legislation so too has the political nature of its decisions. This trend, shown in the case law, has led to the Supreme Court of Canada becoming the ‘key decision making body on core political questions.’
Political jurisprudence has developed in a similar way in South Africa following the end of apartheid and the ushering in of a new, constitutional era. The court has developed an interesting jurisprudence with regards to socio-economic rights and in theCertification judgement the court decreed that there was no reasonable motive to bar such rights from justiciable. Chief Justice Langa implied that such rights reduce courts into making value judgements, which are immune from impartial reasoning: ‘Socio-economic rights lend themselves to disagreement, the first such disagreement in South Africa emerging in relation to the question of whether such rights should be included in the Constitution, as indeed they were.’ While Hirschl commented that theCertification case illustrated ‘the scope of the court’s monitoring of nearly every aspect of the political sphere in the new South Africa.’ An early case, Soobramoney, demonstrated a reluctance of the court to embroil themselves in the politicking of the state. The court deliberately did not rule in favour of the appellant thus refusing to enforce a socio-economic right to health, which ensured that the local administration’s decision on funding for healthcare would not be interfered with. What followed, however, was a gradual politicisation of the judiciary as the hegemonic make-up of South Africa ruptured.
In the Liquor Bill cases, Nelson Mandela used his power under the Constitution to refer a bill to the Constitutional Court, because he had reservations about its constitutionality. While the Province of Western Cape argued before the court that the Bill was an intrusion upon a matter that fell within the province’s exclusive legislative competence, the court opined that the National Government’s competence to regulate trade and industrial promotion was wider. This is a prominent example of the South African court’s willingness to adjudicate on policy at a national level. Hirschl opines that the Liquor Bill case clearly illustrates ‘the scope of judicial involvement in national-level policy-making in present-day South Africa.’ Furthermore, the ability of the Court to rule on any piece of legislation, whether national or provincial, submitted to it ensures the political nature of the judiciary in South Africa. Hirschl contends that ‘[b]efore 1995 it would have been both unthinkable and impossible to submit national and provincial statutes dealing with the division of legislative powers to the courts to examine their constitutionality.’ This furthers my central claim that the NM’s existence, with a bolstered and more powerful judiciary has inevitably led to a politicisation of the courts.
The case law that has developed following the inception of the NM in each of the countries above shows a trend: that the increase in rights-centred legislation, with empowered courts, has inevitably politicised the judiciary. In the countries I have analysed, the judiciary’s role has typically been refined, with a strong tradition of deference to the democratically elected legislature. The NM changed this. Courts with increased powers have grown in confidence and are now more willing to overrule and challenge parliamentary decisions. While I believe the judiciary is politicised, there are two rebuttals to my arguments above to which I now turn. I will outline the counter-arguments to my central claim, before I explain why the politicised judiciary the NM has created means its legacy is contested.
The first rebuttal I deal with comes from those who dispute that the NM is political in any way. The first of these arguments I deal with is the ‘enduring value’ claim advanced by Dworkin and Bickel. Bickel maintains in his book, The Least Dangerous Branch, that judicial review allows courts to uphold the enduring values of society without getting embroiled in day-to-day politics. He maintains that judges have the ‘training… and the insulation to follow the ways of the scholar in pursuing the ends of government’. Judicial review is thus ‘the principled process of enunciating and applying certain values.’
Ronald Dworkin, however, concedes that in order to determine the enduring values of any society, judges inevitably have to engage in a process of value judgements. It is thus difficult to foresee how judicial reasoning would then become any different from legislative reasoning; value judgments, after all, are based upon individual preferences. Legislative reasoning would thus be far superior to judicial reasoning if the enduring values argument were to prevail as societies’ composition tends to be far more closely linked to that of the legislature, than that of the court. In addition, I dispute their claims that there are certain enduring values in society. Society is best described as a melting pot of values, each determined by individual preferences and cultural groups. Bruce Ackerman also disputes that the judiciary has become politicised, with his thesis focussing on a differentiation between ‘constitutional’ law-making and ‘ordinary’ law-making. Constitutional law-making, he argues, is the result of large-scale political mobilisation over a long period of time.
Pointing to history, he identifies three points in American history: the foundation of the Constitution, the Civil War and the New Deal. Each of these, he contends, is an example of constitutional law-making. He then argues that, by scrutinising ordinary legislation, the courts protect the democratic will of the populace, as expressed in these rare, historic moments. Ackerman’s thesis has attracted criticism on a number of grounds. Firstly, it has been submitted that it is questionable whether the moments he describes do genuinely reflect the mass will at the time; it is impossible for any enactment to represent the mass will of absolutely everyone so as to insulate the legal from political viewpoints. Furthermore, it is absurd to suggest that in American history, the civil war can be seen as a moment when the mass will of the country could possibly be reflected. Secondly, it is unclear whether the political moments identified by Ackerman reflect genuine constitutional moments, other than perhaps the foundation of the Constitution. Thirdly, it has been submitted by Hirschl, that not all constitutional moments reflect genuine historic moments. While the constitutional moments reflected a historic period of South African history, they did not in the UK or in Israel and so these events did not represent the outcome of ‘large-scale political mobilisation over a long period of time.’ Finally, Bruce Ackerman’s theory is specific to American constitutionalism, as the last point illustrates. Constitutional law has not developed in a similar way in most NM countries; the UK HRA was not born out of a mass movement of people fighting for change, nor was the Canadian Charter a turning point in Canadian history.
Those who believe the NM, with judicial review, is not inherently political fail in their arguments to detail how the court’s function can be described as apolitical when adjudicating on rights. Both arguments accept that judges to some extent will make value judgements when looking at judicial review cases. As this is the case, it is impossible to assert that the judiciary is insulated from the political situation in the country they are in. As a consequence I am unpersuaded by any arguments that NM-style adjudication is non-political. I now will examine claims from NM advocates who, while accepting the political nature of judicial decisions under the model, argue that this is uncontentious.
The first claim I will examine comes from NM proponents who, while accepting that the NM can lead to a politicised judiciary, point to the principle of weak-form judicial review as being a protection against this. So, while courts in the UK have the ability to issue declarations of incompatibility , parliament retains the final power to ignore such a declaration. This feature is common, to varying degrees, across all NM systems as Gardbaum articulates in The Commonwealth Model of Constitutionalism. Similarly, in Canada there is the controversial ‘notwithstanding clause’ providing legislative override at Federal, Provincial or Territorial level. Similar concepts exist in other NM countries: in New Zealand the power is weaker, with the courts only under an interpretative obligation to give a rights consistent meaning to legislation, although it has been suggested by Kris Gledhill that ‘[case law] has led to the judicial creation of a declaratory remedy that the statute is not compatible with the rights supported by the NZBORA’. The point, however, is that under all the instruments that created the NM, weak-form judicial review ensures that the legislature has the final say.
Thus, it should not matter if the courts pass judgements that are political, because the legislature can alter their decisions anyway. This is the argument put forward by NM advocates and it is undoubtedly strong, in theory. I dispute this claim, however, on the basis of practice. For whatever reasons, legislatures in NM countries have been unwilling to override their domestic (or in the case of the UK, domestic and supranational) courts. For example, in the UK, there have been 29 declarations of incompatibility issued by the courts, yet only one has been ignored by the legislature. Thus, while the legislature in the UK may appear to have the final word, the reality is that the court’s declarations are almost always followed by parliament. Indeed Francesca Klug has said that there is a ‘presumption that through issuing a declaration of incompatibility the courts are effectively forcing the executive, through Parliament, to change the law.’
In Canada, the pattern is broadly similar. Peter Hogg has noted ‘seven of the ten provinces and two of three territories have never used the power of override; nor has the Federal Parliament’. The overuse of the clause by Quebec in its early years has diluted public confidence in the procedure and so it is often viewed as being politically costly. There is in Canada, like the UK, a lack of enthusiasm for overriding judicial judgements. Thus, the weak-from judicial review that the NM envisages does not often play out. The courts have, most would accept, become more political. Weak-form judicial review is supposed to counter this. Yet, in practice it fails, as the courts tend to be followed in NM countries; their rulings upheld. If the courts can make political decisions which the legislature almost always follows, then the reality is that: firstly, the judiciary is politicised, and secondly, the lines between constitutional law and politics are blurred. I will now turn to a final argument put forward by advocates of the NM.
One final argument I have encountered in my research is drawn through comparison to so-called ‘old’ models of constitutionalism. It can be submitted that while the NM might have politicised the judiciary to a certain extent, the old models, too, relied on a politicised judiciary. I see no evidence of this in political constitutionalism, as I believe the case law I have outlined paints an accurate picture of political constitutionalism, where courts were determined not to infringe upon parliament’s sovereign will. There is, however, evidence of courts making political decisions in recent American jurisprudence. Obergefell was clearly a political decision, taken by the undemocratic Supreme Court. America, as a bastion of old model, legal constitutionalism, allows courts to cast political judgements frequently through novel and creative interpretations of the constitution. Thus if the old model is as capable of producing political outcomes, without legislative override provisions, it is more susceptible to be subject to a politicised judiciary. I accept this argument, and agree that the US system does create this possibility, when courts are composed of Justices who adhere to the ‘living instrument’ approach to constitutional interpretation. I accept, too, that the US system has been subject to judicial activism over the years, which has inevitably led to a politicised judiciary. This has been commonplace in America, and the Supreme Court has become as much a political body as the courts in NM countries. That, in itself, though, cannot be an argument for the NM. It is illogical to support the NM because it politicises courts just as much a legal constitutionalist model would, or because it is no worse than the old model. I accept that legal constitutionalism can, and will often, lead to a politicised court, in the same way that the NM does. The solution to this, however, is not either of the aforementioned models, but rather pure, political constitutionalism. This would ensure that courts retained their proper function as the interpreters and enforcers of law, while Parliament created the laws and rights. This is the system that best ensures democracy while maintaining a balance between the judiciary and legislature.
The NM of constitutionalism has undoubtedly shifted a sizeable portion of political decision-making away from democratically accountable legislatures, to courts. Consequently, the judiciary has become increasingly politicised and the lines between constitutional law and politics have blurred. This is the view I have articulated in my essay. Firstly, it is true that proportionality is core to the NM; one just needs to look at all NM countries to see the existence of it as a central premise in rights adjudication. Secondly, the legacy of the NM is clearly controversial due to it having led to a politicised judiciary with the blurring of lines between constitutional law and politics. The only solution to a politicised judiciary, though, is Westminster-style, political constitutionalism.
Ruairidh Morrison is a masters student at the University of Edinburgh (LLM, human rights law), having recently graduated from the University of Glasgow. His main interests are constitutional law and human rights law.
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