14 - Zone of proportionality: legislator and judge

Summary

Proportionality and the three branches of government

Constitutional human rights and the rules of proportionality limiting them apply to all branches of government. The Basic Law for the Federal Republic of Germany provides that “[t]he following basic rights shall bind the legislature, the executive, and the judiciary.” A similar provision exists in other constitutions. Thus, the legislative branch, the executive branch, and the judicial branch are all bound by the constitution. The discussion in this chapter begins with the duties of the legislative branch. In a constitutional democracy, legislation lies with the legislator. The power to legislate is wide in scope. However, it is not limitless. In a constitutional democracy, the legislator is not omnipotent, but rather has its own limitations. One of the most important limitations arises when a legislator seeks to limit a constitutional right. The said limitation must satisfy the constitutional requirements of proportionality. These requirements limit the scope of the legislative discretion when the legislator limits a constitutional right. Accordingly, we may conclude that the members of the legislative branch want to know, should know, and are entitled to know, the limits of their legislative powers. This information is not directly related to judicial review. Even if a constitution specifically orders that the “constitutionality of Acts of Parliament … shall not be reviewed by the courts,” the legislator is still obligated, by its constitutional duty, to enact statutes limiting constitutional human rights in a manner which satisfies proportionality’s requirements. The legislator must, therefore, refrain from disproportional legislation. The legislator is obligated to protect human rights, to act in accordance with the rules of proportionality, and to maintain legislative restraint – even if the legislation’s proportionality is not subject to judicial review, but rather only to public review (through the political process).

The executive branch must respect all recognized constitutional rights. If its actions can limit those rights, they should satisfy the requirements of proportionality. The organs of the executive branch want to know, should know, and are entitled to know, the limits of their executive powers. This is true whether or not there is judicial review of legislation. The actions of the executive branch at the sub-constitutional level, which limit constitutional rights, must satisfy the requirements of proportionality.