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Published: Fri, 02 Feb 2018
Concept Of Proportionality In Law
The concept of proportionality originates in German administrative law.  In R (Daly) v Secretary of State for the Home Department,  Lord Steyn adopted a three-limb definition of proportionality: (a) the legislative objective is sufficiently important to justify limiting a fundamental right; (b) the measures designed to meet the legislative objective are rationally connected to it; and (c) the means used to impair the right are no more than is necessary to accomplish the objective. Thus, proportionality entails a close scrutiny into the relationship between a restricting measure and its objective. However, views may differ as to the exact constituents of proportionality. 
In administrative judicial review, proportionality has been expressly rejected as a ground in the Singapore High Court decision of Chee Siok Chin v Minister for Home Affairs.  In constitutional review, the concept is also of limited application within the current tests adopted by the Singapore courts. Despite the courts’ constitutional role as rights protector, much judicial deference has been shown to the Legislature and Executive.
This essay considers the current place of proportionality in constitutional and administrative law in Singapore, and suggests that the courts should introduce the three-limb proportionality analysis as a general principle where executive action or legislation is alleged to infringe fundamental liberties under the Constitution. 
Proportionality in administrative law
To advance its legislative policies, Parliament confers discretion on statutory bodies. The exercise of executive discretion is subject to judicial review. However, judicial review is based only on the legality of the decisions made by such bodies and not on their merits.  This stems from the doctrine of separation of powers which requires that the Legislature, Executive and Judiciary be allowed to fulfill their allocated functions.  Therefore, the courts should exercise restraint in the face of decisions which are more appropriately allocated to the other branches of the government.
In Singapore, the grounds of administrative judicial review are illegality in a narrower sense, irrationality or Wednesbury unreasonableness, and procedural impropriety.  The courts intervene on the basis that the exercise of discretion in such cases is ultra vires the empowering statutes and thus illegal. 
Proportionality as a ground of review was rejected by V K Rajah J (as he then was) in Chee Siok Chin on the ground that it had never been part of the common law or Singapore law.  He also observed that proportionality might involve the substitution of a court’s own judgment for that of the proper authority, and stressed that judicial review must not extend to merits review. 
While it is not a separate ground of review, the Court of Appeal held in Chng Suan Tze v Minister of Home Affairs  that proportionality might be subsumed under the head of irrationality where a decision is so disproportionate that it could be said to be irrational in that no reasonable authority could have come to such a decision. Thus, the concept has limited application in this broad sense. It is only a factor to be considered in determining whether irrationality is satisfied.
In Chee Siok Chin, after citing its classical formulation in Associated Provincial Picture Houses, Limited v Wednesbury Corporation,  Rajah J held that Wednesbury unreasonableness required a decision to be “so outrageously defiant of logic and propriety that it can be plainly seen that no reasonable person would come to that decision”.  Thus, much judicial deference is shown to the decisions of statutory bodies.  Nonetheless, the low intensity of review reflects the courts’ appropriate role in administrative law.
Proportionality in constitutional law
Singapore has a written constitution and Art 4 declares it to be the supreme law of the Republic of Singapore. Laws enacted after its commencement that are inconsistent with it are void to the extent of the inconsistency.  Laws existing before its commencement are to be construed with modifications necessary to bring them into conformity with it.  The Constitution’s claim to supremacy may be justified on logical and moral bases. The logical argument asserts that the very nature of a constitution dictates that it has superiority over the institutions it creates,  while the moral argument asserts that the constitution is fundamental because it is enacted by the people and expresses the will of the people. 
Under the third criterion of the Diceyan doctrine of constitutional supremacy, there must exist a body, judicial or otherwise, vested with authority to pronounce on the legal validity or constitutionality of laws passed by the law-making body.  Thus, constitutional judicial review is based on constitutional supremacy. In Singapore, the Judiciary is the guardian of the Constitution and has the power to declare legislation void for contravening the Constitution. Since constitutional review is necessarily more stringent than administrative review, proportionality is likely to have a greater place in constitutional review.
Under the Constitution, proportionality is perhaps most relevant to the protection of fundamental liberties. Fundamental liberties are not absolute and most are expressly subject to broadly framed qualifications. Where a particular legislation restricts a protected right, the need arises for balancing between the right and the legislative object which should fall within the constitutionally provided qualifications. For certain rights, terms like “necessary or expedient” specifically makes it necessary to evaluate how much contribution a particular restriction makes towards securing a given objective. Hence proportionality is likely to be most relevant to the balancing exercises undertaken in rights protection. 
In Singapore, the courts have not applied the three-limb proportionality test in reviewing the constitutionality of legislations. Rajah J’s rejection of the concept as a criterion for assessing the appropriate balance between freedom of speech and public order in Chee Siok Chin demonstrates a reticence towards exploring it as a general constitutional principle.  Nonetheless, I will briefly examine some of the current tests of review to see whether the concept of proportionality has a place within them, and how its application may better safeguard fundamental rights.
Art 9(1) provides that “no person shall be deprived of his life or personal liberty save in accordance with law”. Thus, the balance is between the right to life and personal liberty, and restrictions in accordance with law. Since the proportionality test is directed at scrutinizing the restriction side of the balance, the courts’ construction of the phrase “in accordance with law” may determine the extent to which proportionality is relevant.
In Nguyen Tuong Van v PP,  the Court of Appeal eschewed a bare legalistic approach in holding that “in accordance with law” connotes more than just “Parliament-sanctioned legislation” to incorporate “fundamental rules of natural justice”. This appears to be a departure from the earlier decision of Jabar bin Kadermastan v PP  where the Court of Appeal held that any law depriving a person of life was “valid and binding” so long as it was “validly passed by Parliament”.
Proportionality has no place within the Jabar approach because the courts are effectively deprived of the need to balance between the right and the legislative objectives served in its restriction. In Nguyen, it was ultimately held that the mandatory death sentence under the Misuse of Drugs Act  was in line with standards of humanity because it was sufficiently discriminating. Although there was no scrutiny into the relationship between the mandatory death sentence and the legislative object of the MDA in the case, the Nguyen approach allows the possibility that the principle of proportionality can be implied into the words “law” or “fundamental rules of natural justice”, unlike the Jabar approach. The principle would have subjected the restriction to closer scrutiny as it would have required the mandatory death sentence to be no more than is necessary to accomplish the legislative object of the MDA.
Art 12(1) provides that “all persons are equal before the law and entitled to the equal protection of the law”. Although there is no express qualification to this right, the element of balancing competing interests is found in its actual application.
Under improper classification, it is established that for a statute to be constitutional, its classification must be founded on intelligible differentia, and the differentia must bear a rational relation to the object of the statute.  Thus, only the second limb of the proportionality test applies. Although the legislative object has to be legitimate, it does not have to be sufficiently important to justify limiting a fundamental right. The proportionality test will better safeguard equality particularly because its third limb is likely to solve the problem of over-inclusiveness which is currently tolerated under the rational nexus test. Although an alternative approach is the adoption of different levels of scrutiny, it has been suggested that proportionality is the better approach because a tiered scrutiny is less effective in controlling judicial discretion. 
Under improper enforcement, an executive act will be unconstitutional if it amounts to intentional and arbitrary discrimination.  Arbitrariness implies the lack of any rationality, and bad faith of the executive must be proven.  For inadvertence or inefficiency to amount to a breach of Art 12, they must be on a very substantial scale and the existence of inequalities is insufficient.  Thus, constitutionality is very easily established and no proportionality analysis is undertaken.
Article 14(1) provides that citizens of Singapore have the right to freedom of speech, assembly and association. The rights are subject to broadly framed qualifications under Arts 14(2) and 14(3). In interpreting the words “necessary or expedient”, the High Court held in Chee Siok Chin that “all that needs to be established is a nexus between the object of the impugned law and one of the permissible subjects stipulated in Art 14(2)”. Thus, the required threshold is even lower than that under the second limb alone because the nexus does not have to be a rational one.
Proportionality in the UK
The principle of proportionality plays an important part in European Union (“EU”) Law and influenced English law through cases governed by EU Law. The coming into force of the UK Human Rights Act 1998  in 2000 has incorporated the European Convention on Human Rights  into domestic English law and thus proportionality now plays a much more central role in the domestic context. The brief examination of proportionality in the UK serves as a comparison with its possible reception in Singapore.
Unlike in Singapore, the UK Parliament is supreme and judicial review is confined to administration action. Even with the advent of the HRA which empowers English courts to declare laws incompatible with the ECHR, Parliament remains supreme. As such, although proportionality has been recognized in Daly as a freestanding ground of review under the HRA, English courts have always been concerned that the principle would widen the scope for judicial invention into merits questions. 
Attempts by the courts to calibrate the principle have thus involved doctrines of “due deference” and “discretionary area of judgment”, the domestic analog of “margin of appreciation”.  These doctrines are generally justified on two grounds: (a) the courts lack democratic legitimacy and accountability, particularly in areas of public policy;  and (b) the courts are institutionally incompetent to deal with the socio-economic issues that often arise in human rights cases because they lack the resources and expertise to adequately weigh the issues.  Thus, proportionality does not entail a monolithic standard of review. In applying the three-limb test, the intensity of review in fact varies according to the courts’ view of whether, in the circumstances, they ought to defer to the Parliament or Executive.
There has also been considerable debate as to whether proportionality should become a general principle of English administrative law and hence replace Wednesbury unreasonableness even in cases arising outside the HRA. Proponents argue that it constitutes a more transparent and structured methodology than Wednesbury unreasonableness, while opponents caution that it will become a pretext for judicial intervention into merits questions and thus violate constitutional propriety. 
Introducing proportionality in Singapore
It is proposed that the Singapore courts should introduce the three-limb proportionality analysis as a general principle in all cases when deciding whether executive action or legislation infringes fundamental liberties under the Constitution. As guardian of the Constitution, the courts have the power to formulate tests of review and develop a constitutional jurisprudence based on general principles that may be considered inherent in the concept of “law”.  Proportionality, like rationality, can be so considered.
Currently, there appears to be no general principle or test that the courts follow when they engage in balancing exercises. Instead, they have adopted a doctrine of deference to the Legislature and Executive. Restrictions on rights have been given a “generous and not pedantic interpretation” and the presumption of constitutionality is often stressed upon.  The courts have also crafted a “local conditions” rationale for rejecting rights-expansive foreign cases and adopting a philosophy of “communitarianism”.  For example, proportionality was rejected as a “continental European jurisprudential concept imported into English law by virtue of the UK’s treaty obligations”.  Policies like national service and public order considerations like racial and religious harmony have also been elevated to “quasi-constitutional” status overriding rights, leading to what has been termed the bathroom scales approach instead of the appropriate balancing scales.  Such deference has largely been justified on the same grounds as deference in the UK, being premised on the “presumption that Parliament knows best for its people” and that “its laws are directed at problems made manifest by experience”. 
A proportionality analysis will provide a structured methodology to ensure that limitations with or without constitutional status are closely scrutinized and not treated as conclusive trumps.  Otherwise, constitutional rights will be devoid of meaningful content and ineffective against state encroachment. By treating rights as principles requiring optimization,  ie, realized to the greatest extent possible, proportionality ensures minimal rights impairment. Currently, there is also no substantive differentiation made between the types of national interests involved in balancing.  Thus, the first limb of proportionality will serve to filter away less weighty interests like effective administration from more weighty ones like national security. The third limb will also reduce the application of what has been termed the “pre-emptive” strike approach allowing rights curtailment so long it “tends to” threaten a public good because such curtailment is likely to be more than is necessary to serve the public good. 
In relation to administrative judicial review, the concern has been that a proportionality analysis will promote a merits review beyond the scope of the Judiciary’s role in administrative review. However, where an executive action is alleged to infringe the Constitution, the courts are exercising judicial review of the constitutionality of the action.  Thus, they cannot be limited to the Wednesbury test which was enunciated in the context of administrative reasonableness and is inappropriate and inadequate in testing the validity of actions in the constitutional context.  To adequately protect fundamental liberties, the proportionality test provides a rigorous scrutiny of executive actions beyond merely assessing whether they are within the range of rational decisions.  However, the Wednesbury test should remain applicable for administrative review where the Constitution is not in question. Although opinion is currently divided in the UK, the traditional test is perhaps more appropriate given the courts’ role in administrative review.
Finally, introducing the proportionality test per se will not guarantee greater rights protection without a supportive legal and political culture. Firstly, the test does not directly address the method of rights interpretation which determines the existence of a restriction in the first place. A deferent Judiciary will still seek to narrowly define rights in order to circumvent the need for a proportionality analysis. Thus, a generous approach to rights interpretation that was advocated in earlier cases like Ong Ah Chuan v PP  and Taw Cheng Kong v PP  is necessary to complement proportionality. Secondly, like in the UK, the intensity of review even within proportionality will remain largely dependent on the courts’ view of their appropriate role in the circumstances. The courts’ current vision of democracy appears to be focused on majority rule through the ballot box, shying from their constitutional role as rights protector. However, even in the UK where Parliament is supreme, judicial deference has been criticized as being “empty or pernicious” because it is impossible to separate the closely intertwined questions of law and policy, and reliance on the good faith or special expertise of public officials to abdicate judicial responsibility defeats rights protection.  As such, what is needed to move towards greater rights protection is not simply the introduction of proportionality as a test. The principle must be viewed as a constitutional jurisprudence that seeks to optimize rights, and this requires a shift in judicial attitude towards a broader conception of law and democracy.
I declare that I have abided by the SMU’s Code of Academic Integrity.
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