In Asia, only the courts in Hong Kong, Taiwan, and South Korea deploy Structured Proportionality (SP) , i.e the Courts reason through a structured Proportionality Analysis (PA) sequentially and they use PA to enforce constitutional rights against the government routinely and regularly. This Presentation will explore how these East Asian Courts use SP, and explain why in Asia, SP is exclusive to these three East Asian jurisdictions, while other Asian courts may have PA in form but do not use it regularly in practice.
Among the courts in Southeast Asia, the use of proportionality has been sporadic and anemic. But there are signs of a shift. Some Southeast Asian courts have begun to embrace and develop a proportionality analysis to scrutinize government rights restrictions. The Malaysian apex court’s use of structured proportionality in several recent decisions, for instance, marks a shift in legal doctrine and, more broadly, a shift in the judiciary’s perception of its own institutional position. That example has important resonance for courts in other fragile Southeast Asian democracies, many of which operate in challenging political systems with military regimes or dominant political parties.
South Asian judiciaries have adopted – or have claimed to adopt – proportionality in ad hoc, unstructured fashion. In practice, the higher courts of India, Pakistan, and Sri Lanka have blurred the distinction between constitutional and administrative law, applying less searching standards such as Wednesbury under the guise of proportionality. In Bangladesh, the Appellate Division of the Supreme Court has adopted a more fleshed-out “reasonableness” test. But this approach, too, defers to reasonable legislation without the scrutiny of structured proportionality. This Presentation will explore these developments within the peculiar political and institutional context of South Asia in which courts, echoing their British roots, remain ostensibly deferential to lawmakers, but nonetheless exercise (often) untrammeled powers of judicial review.
Rosalind Dixon will offer commentary, including by drawing on her recent work on hybrid models of proportionality and tiered scrutiny in Australia. Specifically, she will draw on her recent argument in the (Australian) Federal Law Review that proposes a test of ‘calibrated proportionality’, which looks to a range of context-specific factors and constitutional values to help calibrate the intensity of the Court’s application of the tests of ‘necessity’ and ‘adequacy in the balance’ under a test of structured proportionality.
My paper will discuss some of the historical institutional features, including especially the presence vel non of stable, centrist political parties, mediating legislative and administrative institutions, and the subject matter jurisdiction of apex courts, that have made the United States and Latin America differentially fertile ground for proportionality-style reasoning. I will also discuss how more recent evolution in these features might bear upon particular jurisdictions' current fit with proportionality.