Proportionality in Asia (Cambridge University Press 2020), edited by Po Jen Yap

In the 21st century, the Proportionality Analysis (PA)—in its varied manifestations and permutations—has emerged as the most ubiquitous legal doctrine relied upon by judges in rights-adjudication. 

Typically, when applying PA, the judiciary would ensure that (i) the State is pursuing a legitimate objective; (ii) the governmental measure undertaken is rationally connected to the stipulated policy objective; and (iii) the right-derogation is no more than necessary to achieve those stated goals. In several jurisdictions, PA has a fourth stage and the judiciary would further examine whether the regulatory measure is proportionate stricto sensu: whether there is a fair balance struck between the rights of the individual and the interests of the community or are the consequences of the law unacceptably harsh on the individual.

With its genesis in German law, this PA doctrinal device has diffused globally across Europe and around the world. Proportionality in Asia is a collection of essays that specifically examines how PA is applied in Asia. 

Notably in Asia, only the courts in Hong Kong, Taiwan, and South Korea deploy Structured Proportionality (SP): the Courts reason through the structured 3 or 4-stage PA described above sequentially and use PA to enforce constitutional rights against the government regularly. For Taiwan and South Korea, Germany is the foreign jurisdiction most considered by both courts; for Hong Kong, the United Kingdom’s case-law is the most persuasive. It is therefore of no surprise that within Asia, the PA flourishes best in jurisdictions where constitutional transplants from foreign nations with SP are ubiquitous and well received. Insofar as the Taiwanese and Korean judge endorse German jurisprudence (openly or behind-the-scenes), and the Hong Kong judges adopt United Kingdom precedents, the three jurisdictions indirectly converge with one another on the use of SP. 

On the other hand, the judicial use of PA in Japan, Malaysia, Indonesia, and Thailand is anaemic and ad-hoc. The dismal record of PA in Japan and Malaysia is not surprising because this is typical of courts operating in dominant-party democracies where judges often do little to countermand the dominant party’s hegemony, especially if the ruling regime can display its displeasure by ousting judicial review or even the judges themselves. While Indonesia has not been controlled by a singular dominant party since the end of President Suharto’s authoritarian “New Order” rule in 1998, Presidents have stabilised their rule post-election by cajoling or coercing every significant party into a power-sharing arrangement that practically neutralised partisan conflicts. Furthermore, all the Indonesian Constitutional Court judges, including the Chief Justice, face re-elections  and the institution has been plagued by high-profile corruption scandals. Confronted with all these political challenges that impede the Court’s effective exercise of constitutional review, it is unsurprising that the Indonesian Court carefully calibrates its confrontations with the government of the day. Similarly, in Thailand, where the military is effectively an independent branch of government not subject to civilian control, it is also unsurprising that its Constitutional Court prefers not to provoke the ire of the generals who can remove the judges by force or fiat.  

Finally, the courts of Bangladesh and the Philippines do not deploy PA, but they apply a doctrinal equivalent. In Bangladesh, “reasonableness” review is applied. Typically, the Court would look at whether the impugned law “subserve a compelling State interest” and whether the mischief that the law was seeking to address “can be remedied by any other reasonable means”, essentially the first three sub-tests of PA. In the Philippines, in lieu of PA, the Supreme Court deploys a tier-of-rights analysis, with varying intensity of judicial review applied vis-à-vis different rights. Economic legislation are generally only subjected to rational review. Laws that differentiate on the ground of gender are subject to intermediate scrutiny: the impugned law must serve an important governmental objective and the measure chosen must be substantially related to the achievement of such objective. Governmental limitations on religion and the right of movement are subject to strict scrutiny: there must be a compelling state interest and the governmental measure must be the least restrictive means to protect this interest. Courts that have developed doctrinal equivalents of PA usually have done so because their judges are usually not trained in countries that use PA, and the courts rarely look to those foreign nations with PA for guidance in constitutional matters. For Bangladesh, the most persuasive foreign constitutional sources are India and Pakistan; for the Philippines, it is the United States of America—notably countries where PA is not typically used. 

In this volume’s survey of the nine Asian jurisdictions that apply PA—in form or substance—a few general observations can be made.

All the courts canvassed herein delineate “zones of proportionality”  that allow policy-makers to enjoy meaningful discretion within their spheres of expertise. Foremost is economic legislation. Due to the institutional constraints and the informational costs associated with the adjudication of such rights, courts when applying PA would generally adopt a posture of deference vis-à-vis such allocative measures. This is so in the West as it is in Asia.

But courts co-existing with dominant ruling parties or military governments would defer even more, and PA therein would be sparingly and sporadically used. Judges whose re-elections are in the hands of the political branches of government are equally docile, as is the case with Indonesia. It is only courts that operate in dynamic democracies, e.g. South Korea and Taiwan, that can exercise high-equilibrium PA review and successfully usher in major socio-political reforms. Furthermore, for courts where SP is a regular feature of the Court’s constitutional landscape, the use of imported PA precedents legitimises the Courts’ decisions insofar as these Asian jurisdictions can identify themselves with “high prestige courts and countries”;  and in so doing, they can deflect accusations that the judges are merely imposing their personal whims. 

The legal education of the judges and the courts’ primary source of comparative constitutional study is often also determinative of how successfully PA is diffused and locally transplanted. Courts that do not formally use PA, but create doctrinal equivalents, are usually those courts whose judges are generally not trained in countries that apply PA and their primary source of foreign constitutional law are not countries with PA. We see this in Bangladesh and the Philippines. But these doctrinal equivalents—which in substance resemble the various sub-tests within PA—serve the same constitutional purposes and have the same constitutional effects. 

And perhaps precisely because PA can be customized, it has gone viral.  And we now see Asia joining this global choir of judges who serenade the world with their adaptations of PA.

Posted by Professor Po Jen Yap (The University of Hong Kong)