Proportionality: A Legal basis for Judicial Review of Administrative Action in the greater public interest

We as judges of this land must take the lead from our departed friend and colleague, that no bullets of any calibre, knives of any depth, clubs of any weight, shall ever deter us from taking the exalted and well traversed path to do justice for all those who come before us.’ – Rohini Perera J, Secretary of the High Court Judges Association.(2004)

The above mentioned words of Justice Rohini Perera, formerly Judge of the High Court of Colombo (presently Rohini Marasinghe Justice of

the Supreme Court of Sri Lanka) in her oration delivered at the funeral of late Justice Sarath Ambepitiya, in the year 2004, in essence epitomized the values and the principles held sacred by the judiciary of our land at all times. Her Ladyship’s recent speech at the ceremonial sitting held to welcome Her Ladyship to the Bench of the Supreme Court carries a very valuable analysis as to the relationship of the judiciary with the executive. It was stated that the judges in the apex court should not consider themselves prisoners in an ivory tower. They should periodically leave such an enclosure and commence a dialogue with the Executive arm of government. The relationship between the Executive arm of government and the Judiciary should be a cordial one evoking mutual respect to each other,

Her Ladyship further stated that

“There is a most pointed reference to this relationship which Lord Phillips, the Lord Chief Justice of England made in a speech to the Commonwealth Law Conference, held in Nairobi, on September 12, 2007”.Justice Rohini Marasinghe quoted Lord Phillip to have said, “I have always believed that it is important, if possible, for judges to maintain good relations with ministers. I have to date managed to achieve this, both with the Home Secretary and with the Lord Chancellors – it is important at such meetings the line is clearly drawn between what are and what are not appropriate areas of discussion and ministers are, in my experience, quick to accept if a topic is “off limits”.

Justice Marasinghe further said that the Latimer House Guidelines encouraged the judiciary and the government to have periodical dialogues without compromising judicial independence, “We all swear an oath to administer justice without fear or favour affection or ill-will. Judicial independence requires that judges should be true to that oath and if the rule of law is really to prevail, the individual citizen must be confident that the judges will apply the law to them without fear or favour affection or ill-will. Justice Marasinghe quite correctly vowed that Her Ladyship shall be true to that oath until the relinquishment of the office and stepping down from the august office which Her Ladyship has now begun to hold.

The new Supreme Court Judge said sometimes laws are made by parliament to provide the country with security and social justice. When such laws come before the courts raising their Constitutional validity, the Courts should take a broader view of the social policies engaged by such legislation and show some consideration for its usefulness and its larger benefits to the country. There are many laws in many countries which are enacted targeted towards social development and security concerns. The Judges when considering the validity of such laws should not take purely a legalistic view of the Constitution, but a broader view of its necessity for securing social justice, social cohesion and economic development,

Her Ladyship’s speech in essence refers to the Doctrine of Proportionality, which is applied as a ground of judicial review of administrative action across continental Europe, and necessarily grants the judiciary wider powers to consider the merits of a decision. Broadly, it necessitates an assessment of the balance between interests and objectives. The decision made must be proved to have been necessary to meet a legitimate aim, and the most reasonable way of doing so. The modern procedural definition of the proportionality test is relatively clear. Tom Hickman, while acknowledging various different models, identified the most common formulation as a three-part procedure. The reviewing court must consider:

1) Whether the measure was suitable to achieve the desired objective.

2) Whether the measure was necessary for achieving the desired objective.

3) Whether, even so, the measure imposed excessive burdens on the individual it affected.

The third element is often termed proportionality stricta sensa and is the provision that requires balancing of interests.

The doctrine of proportionality in its present form is of European origin. A product of interpretation of Platonic and Cicerian theory, the concept was first applied in Prussia in the late 18th Century as the law was codified on Rechtsstaat (‘constitutional state’) lines, and refined by the German courts in the 19th Century. The principle took further hold in continental Europe after the Second World War, when proportionality became embedded in the new German constitution. It was then taken up by the European Court of Human Rights upon its founding in 1959, and later by the fledgling European Community as a conceptual ‘meta principle of judicial governance’.

After the UK’s belated entry into the European Community in 1973, whenever the UK courts have addressed the legality of government action within an area of Community competence, it has been necessary to recognize proportionality as a distinct and substantive ground of review. Since the courts first began applying the doctrine academic and judicial suggestions that proportionality should be in some way incorporated into domestic UK law have been regular. Moreover, pressure for reform has increased markedly since the assent of the Human Rights Act (1998), which has required use of the doctrine in cases that involve the breach of ECHR rights. The most common suggestion, and the subject of this study, has been to establish proportionality as a separate full ground of judicial review.UK courts have been applying the proportionality doctrine since 1973 in EU cases, and from that date suggestions have been made that the test is deserving of a place in UK administrative law as a full head of review.

In conclusion, simply put proportionality as a ground of judicial review involves a balancing of interests by the Court. This balancing more often than not tilts more towards the majority public interest when compared with individual rights/It is essential that the judiciary and .the legal profession maintain a cordial relationship with the executive for the greater benefit of the litigants and the public at large. A more mature moderate impartial and consensual understanding is required from all parties in order to achieve this precious goal and Justice Marasinghe’s recent speech at the ceremonial sitting delivered subsequent to Her Ladyship’s over three decades of experience as a senior career judge would undoubtedly be a valuable guide in achieving this end.

The writer is an Attorney at law 

Comments are closed.