10 - Importing Proportionality through Legislation

Summary

Philippine courts do not use a multi-step proportionality test in their constitutional rights analyses. Instead, they use a combination of balancing and tiers-of-rights analyses. We offer two reasons why Philippine courts do not use the proportionality test. First, Philippine courts regard US constitutional law as more persuasive authority than other foreign jurisprudence, and the proportionality test is also absent from the U.S. Reports. Second, Philippine constitutionalism is originalist, and proportionality is not part of the original meaning of the Philippine Constitution. The Philippine Data Privacy Act of 2012 can be interpreted as the legislative empowerment of courts to use the proportionality test for the adjudication of data privacy rights. We argue that Philippine Congress has the power to mandate the use of the test with respect to constitutional rights that are subject to Legislative Delimitation Provisos, which give Congress the power to determine, by statute, the limits or boundaries of certain constitutional rights, including the right to informational privacy. We propose a two-step process in adjudicating informational privacy cases which would retain the judicial use of legal categories while concurrently introducing proportionality stricto sensu. This will offer a structured, transparent approach to the constitutional adjudication of data privacy rights.