16 - The burden of proof

Summary

The issue presented

A petitioner argues before the court that a constitutional right was disproportionally limited by law. Who bears the burden of proof in this matter? This issue does not relate to proving the law. Rather, it is related to proving the facts upon which the claim – that the right has been disproportionally limited – rests. The question relates to issues of the burden of persuasion and the burden of producing evidence. The constitutional approach is based upon the two-stage model. At the first stage, the question examined is, when a constitutional right has been limited, who bears the burden during this stage? Does the burden lie with the party arguing that the right has been limited, or with the party claiming no such limitation has occurred? At the second stage, the question is whether such a limitation is justified, and therefore valid. The answer to that question lies within the rules of proportionality in the limitation clause. Who bears the burden of proof (both the burden of persuasion and the burden of producing the evidence) during this stage? Does it lie with the party arguing for the justification, or with the party arguing that no such justification exists?

The burden of proof: facts and law

The burden of proof plays a role regarding the facts. It is irrelevant regarding legal issues. The court knows the law (iura novit curia). One can argue that the “burden of proof” on issues of law rests with the court itself, as in the old Latin saying: “Just provide me with the facts, and I will provide you with the law” (da miti facta, dato tibi ius). Further, the court cannot “pass on” its “burden” to any of the parties. The burden of proof issue is not relevant in the context of whether the limited right is constitutionally protected or not. This is an issue of law, and therefore the notion of burden of proof does not apply. The same is true regarding the right’s scope and the interpretation of the legislative provision that, according to the argument, has limited the right. Similarly, the burden of proof plays no role in deciding whether a limitation on a right occurred “by law,” or whether the purpose, according to which the right has been limited, is proper or not. All these issues are matters of law, relating either directly to the constitutional interpretation of the limitation clause or to the statutory interpretation of the legislative provision that has limited the constitutional right. In matters of legal interpretation, the notion of the burden of proof plays no role. Therefore, the issue of burden of proof is not raised in relation to the interpretation of constitutional provisions relating to proportionality. The scope of these and similar provisions are a matter for the court.