WALKING THE TIGHTROPE BETWEEN LEGALITY AND LEGITIMACY

Date01 December 2017
Published date01 December 2017

Taking Rights Balancing Seriously

The discourse of proportionality and balancing permeates constitutional rights scholarship, and numerous scholars have proffered a plethora of normative justifications for proportionality-based balancing in contemporary democratic societies. Parliamentary sovereignty in its Diceyan conception often clashes with enshrined constitutional rights, leaving the Judiciary in an unenviable position to resolve this conflict in a principled manner. This article analyses how courts engage with the principle of proportionality-based balancing in determining the validity of laws limiting constitutional rights. By focusing on the free speech jurisprudence of Singapore and Australia, it discusses how courts in these jurisdictions negotiate the tightrope between fidelity to the written text of the constitution and a commitment to their role as guardians of fundamental rights and liberties.

I. Introduction

1 Balancing is a difficult act. It suggests an adroit exercise of skill, artistry and judgment, but at the same time, it connotes a sense of instability and danger. In a circus tightrope act, successful balancing often invites rapturous applause and admiration; however, a failure to maintain equilibrium can have tragic outcomes. The metaphor of balancing in constitutional adjudication generally “refers to theories of constitutional interpretation that are based on the identification, valuation, and comparison of competing interests”.1 As Jaclyn Neo aptly and succinctly remarked: “[b]alancing is invoked to explain and justify the outweighing of a right/interest over another, or alternatively, to

explain a rule as having struck the appropriate balance between or among different rights/interests”.2

2 While many commentators see balancing generally as any method of resolving conflicts among values, some have distinguished balancing that establishes a substantive constitutional principle of general application (labelled “definitional” balancing) from balancing that itself is the constitutional principle (so-called “ad hoc” balancing).3 In the US, in what is often termed “definitional balancing”,4 the US Supreme Court has adopted a tiered-scrutiny approach,5 and has famously and consistently applied the doctrine of content neutrality to laws that abridge the freedom of speech guaranteed by the First Amendment to the US Constitution,6 subjecting content-discriminatory laws to strict scrutiny, and content-neutral time-place-manner regulations to an intermediate scrutiny standard.7 In other parts of the world, like in Europe, Australia and Canada, some form of proportionality test is employed in human rights and constitutional adjudication.8 Definitional balancing is likely to be perceived as a form

of covert/opaque balancing where judges camouflage their preferences for particular values behind a generalised rule or definitional term, while ad hoc balancing is arguably seen to be a more overt/transparent process where the court is more explicit in its identification, valuation and comparison of competing interests.9

3 Much has been written about the “rule of law”, especially about its quintessential position in any legal system, which operates to constrain the tyranny of government and to ensure the existence of an impartial and independent judiciary.10 AV Dicey considered the rule of law to encompass three aspects: “absolute supremacy or dominance of regular law as opposed to the influence of arbitrary power”; equality before the law; and the applicability of established principles of private/common law.11 Although Dicey was right to note that one great virtue in the rule of law is the capacity of subjects to hold their rulers to account in the courts, his influential declaration that in a system of representative democracy, “parliamentary sovereignty was the very keystone of the constitution and the ultimate principle of legality” [references omitted], ensured that in many modern democracies founded in the Westminster tradition, the parliament's powers of legislation stood at the very apex of the legal system.12 Herbert L A Hart then clinically constructed the positivist sovereignty doctrine in which the word of Parliament was law which no person or body could override or set aside.13

4 However, the rule of law is not a unitary principle but comprises a number of different dimensions; it is inevitable that the intrinsic tensions will prove to be intractably problematic. In R (Jackson) v Attorney-General, Lord Hope of Craighead boldly declared that:14

[P]arliamentary sovereignty is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.

Lord Steyn also dismissed Dicey's conceptions as outdated doctrine and noted that the incorporation of the European Convention on Human Rights (“ECHR”) into English law had established a new basis of legality.15 Other law lords and Lady Hale similarly concurred that parliamentary sovereignty must be subject to a transcendent universal principle of the rule of law, and it then falls to the duty of the courts to define the limits of the parliament's legislative powers according to the rule of law.16 In Singapore, the courts have recently made more confident steps in the same direction,17 while the High Court of Australia have taken bolder strides to declare both express and implied constitutional limits on legislative powers.18 Over two centuries ago, in Marbury v Madison,19 the US Supreme Court had already declared itself as the natural and legitimate authority to pronounce on the limits of the parliament's sovereign legislative powers.

5 Under this principle of legality, the limits on the parliament's legislative power are perhaps less controversially found in a written constitution as the supreme law of the land than in more abstract and contestable notions of the rule of law based on autonomy and morality. Where a written constitution grants a particular fundamental right such as freedom of speech or freedom of religion, courts in a constitutional democracy invariably engage in some form of proportionality-based

balancing to determine the legal limits of the parliament's legislative powers. It has been said “at this moment of history, the principle of proportionality tends to become an overarching principle of constitutional adjudication around the world” [references omitted].20 However, proportionality is a fractious concept where scholars have expressed significant disagreement with one another on normative frameworks and appropriate methodologies. It has been disparagingly called “the enfant terrible of modern judging”.21 Much also has been written on proportionality, with whole books devoted to the topic: Francisco Urbina's recent critique stands at 252 pages22 while Aharon Barak's weighty tome runs into 547 pages.23 This article will not attempt to reconcile the different theses on constitutional rights balancing and proportionality, but will instead focus more usefully on a comparative analysis of how courts in Singapore and Australia have approached the balancing of rights in the area of freedom of speech in order to recommend a pragmatic way forward for constitutional adjudication. Ultimately, one should avoid over-theorising what is essentially a practical universal methodology of resolving constitutional rights disputes that is sensitive to particular historical bargains, social contracts, political imperatives and cultural circumstances of each jurisdiction.
II. Wading through the miasma: Whose proportionality? Which balancing?

6 In many jurisdictions, the principle of proportionality in constitutional adjudication functions as a general test of validity of laws that restrict constitutional rights. Although courts in different jurisdictions accord a different priority to a kaleidoscope of rights, norms, values and interests, some form of balancing inevitably occurs. Courts usually adopt a two-stage approach. In the first stage, the court determines whether a challenged law limits a constitutional right; if it does, then in the second stage, the court evaluates whether such a restriction is justified.24 According to Luc Tremblay, governmental

infringement of a constitutional right is justified if two conditions are satisfied. First, the legislative objective (purpose or end) must be legitimate, proper or sufficiently important. This condition may be called the “legitimacy test”. Second, the relationship between the means and the ends must satisfy the principle of proportionality. This is the “proportionality test”. Its formal structure provides three criteria or subtests:

(a) There must be a “rational connection” between the means chosen and a legitimate governmental objective. This is the “rationality” or “suitability” test.

(b) The limitation of a right must be “necessary” to achieve the objective. This is the “necessity” or “minimal impairment” test.

(c) The harm (cost, burden and/or sacrifice) caused by the limitation must be “proportional in a strict sense” to the benefit (gains or good) it contributes to produce. This is the test of “proportionality in a strict sense (stricto senso)” or “proportionality in a narrow sense”. It is also referred to as the “balancing test”.25

7 The above description is widely accepted to be the gist of what proportionality-based balancing is about. However, that is where the consensus ends. In the section titled “Whose Proportionality? Which Balancing?”, Urbina outlined the multifarious difficulties associated with the metaphor of balancing, such as its content, theoretical framework and methodology.26 Grégoire Webber commented that “[d]espite the pervasiveness of balancing and proportionality in constitutional reasoning, it is not clear...

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