13 - Proportionality and reasonableness

Summary

From reasonableness to proportionality

What is the relationship between proportionality and reasonableness? Are the two completely different concepts or do they overlap? Are there aspects of proportionality that do not constitute a part of reasonableness, and aspects of reasonableness that do not constitute a part of proportionality? These questions arise where a constitutional right is limited by a sub-constitutional law. The same issues also appear in contexts where no constitutional rights are involved. The focus is only on the first set of cases. These arose in many common law countries, where reasonableness was recognized long before proportionality. When proportionality “knocked on the door” of those legal systems, it was met by the concept of reasonableness. Courts across several legal systems have ruled that, in light of the use of reasonableness to review the legality – and the constitutionality – of administrative actions, there is no need to recognize proportionality. The rationale provided was that, if the two concepts were identical, then reasonableness should suffice; and, if the two were not identical, reasonableness was preferable. Either way, there was no room for proportionality. This approach was changed with regard to the constitutionality of statutes limiting constitutional rights. The proportionality rule is now recognized as per the examination of the constitutionality of legislation which limits constitutional rights. It is also recognized where a sub- statutory law (e.g., administrative actions, regulations, executive orders) limits constitutional rights. The reason for that is that, if the constitutionality of legislation limiting constitutional rights is reviewed according to the requirements of proportionality, then the constitutionality of any other sub-statutory action that limits constitutional rights in accordance with a statutory authorization should also be reviewed in accordance with the same principle. This makes perfect sense: if the statute is unconstitutional because its limitation of the human right is disproportional, clearly all other sub-legislative actions authorized by the statute limiting the constitutional right are illegal, as they were executed without proper authorization. If the legislation is constitutionally valid since it is proportional, then the authorization it grants to sub-statutory actions should also be proportional. Either way, the constitutional or statutory validity of the sub-statutory action will be determined in accordance with the principle of proportionality. However, the issue of the proper relationship between the two concepts – proportionality and reasonableness – remains in the context of the limitation of constitutional rights. Does the recognition of the concept of proportionality render the concept of reasonableness redundant, or can the two live side-by-side?