The concept of proportionality in public law

Abstract

Proportionality analysis is now well recognized in civil law and common law jurisdictions alike as the approach for determining contentious legal issues arising in the public law field. Two sets of such issues readily spring to mind: the legality of an executive decision and the legality of a restriction of a fundamental right. Franco Chung’s book on the concept of proportionality in public law takes the reader in a tour d’horizon of this topic. Adopted from Chung’s doctoral dissertation, it is a grand tour from the conceptual basis for adopting proportionality to the adaptation and application of proportionality by international, supra-national and national courts, particularly the European Court of Justice (CJEU), the European Court of Human Rights (ECtHR), the United Kingdom and Hong Kong. At the conceptual level, Chung explores in Chapters 1 and 2 of the book the justification for the principle of proportionality in holding executive authorities accountable and the methodology of proportionality analysis, including the associated issues of the margin of appreciation that the CJEU and the ECtHR have developed for supra-national adjudication, and the margin of discretion for executive authorities that the CJEU has inspired into the domestic context. At the practical level, Chung uses the jurisprudence of the CJEU and the ECtHR, discussed in Chapters 5 and 6 respectively, to evaluate, in Chapters 7 and 8 respectively, the extent to which the courts of the United Kingdom and Hong Kong have integrated proportionality analysis into their judicial scrutiny of executive action. This represents a ‘functional comparative approach’ of the extent of such integration in the jurisprudence of two domestic jurisdictions. In between, Chung also tackles two related public law issues. In Chapter 3, Chung critiques the Wednesbury standard of review of an administrative decision. In Chapter 4, Chung challenges the bifurcation, in the enforcement of fundamental rights, between civil and political rights and economic, social and cultural rights, and contends that economic, social and cultural rights are both justiciable and ought to be enforceable on separation of powers grounds. These are important issues that need to be addressed, in line with Chung’s stated approach that executive power and its exercise must be subject to judicial scrutiny on a consistent standard, to conform with the rule of law. These two issues (Wednesbury unreasonableness and the justiciability of economic, social and cultural rights) also impact upon his argument about the applicability of proportionality analysis. Proportionality analysis, according to Chung, offers the ‘more structured and intensive approach’ for the omnibus judicial scrutiny of executive action. Full adoption of proportionality analysis in judicial scrutiny of executive action, including over ‘polycentric socio-economic