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    Page 1  of 27   I MPORTING P ROPORTIONALITY THROUGH L EGISLATION :    A    P HILIPPINE E XPERIMENT   by Bryan Dennis Gabito Tiojanco !   & Ronald Ray Katigbak San Juan  1  Philippine courts do not use a multi-step proportionality test in their constitutional rights analyses. Instead, they use a combination of balancing and tiers-of-rights analyses. We offer two reasons why Philippine courts do not use the proportionality test. First, Philippine courts regard U.S. constitutional law as more persuasive authority than other foreign jurisprudence, and the proportionality test is also absent from the U.S. Reports. Second, Philippine constitutionalism is srcinalist, and proportionality is not part of the srcinal meaning of the Philippine Constitution. The Philippine Data Privacy Act of 2012    can    be interpreted as the legislative empowering of courts to use the proportionality test for the adjudication of data privacy rights. We argue that Philippine Congress has the power to mandate the use of the test with respect to constitutional rights that are subject to Legislative Delimitation Provisos, which give Congress the power to determine, by statute, the limits or boundaries of certain constitutional rights, including the right to informational privacy. We propose a two-step process in adjudicating informational privacy cases that would retain the judicial use of legal categories while concurrently introducing proportionality stricto sensu. This will offer a structured, transparent approach to the constitutional adjudication of data privacy rights. Philippine courts do not use a multi-step proportionality test in their constitutional rights analyses. Instead they use a combination of case-by-case balancing and tiers-of-rights analyses. The Philippine Data Privacy Act of 2012 (DPA) seeks to change that for the adjudication of data privacy rights. The !  Postdoctoral fellow, National University of Singapore Centre for Asian Legal Studies; J.S.D. (2018) & LL.M. (2014), Yale Law School; J.D. (  cum laude   ) (2009), University of the Philippines.  Consultant, Philippine Department of Finance; J.D. (Dean’s Medal for Academic Excellence) (2017), University of the Philippines. 1  We thank Kevin Tan for his honest and helpful comments to an earlier draft of this essay.    Page 2  of 27   DPA states that the processing of personal information must adhere to ‘the principles of transparency, legitimate purpose and  proportionality  ’. 2   This essay has five parts. Part I discusses the sorts of rights analyses the Philippine Supreme Court presently uses in its decisions. In part II we offer two reasons why Philippine courts have not adopted the proportionality test. In part III we argue that Congress can (as it has done in the DPA) require courts to use the proportionality test in deciding constitutional cases involving rights that are subject to what may be called Legislative Delimitation Provisos. 3  We also discuss how Congress has used the DPA to legislatively empower courts to apply proportionality. In part IV, we discuss how the proportionality test can be applied by Philippine courts. In Part V  we conclude. I.   Constitutional Rights Review in the Philippines Courts around the world use the proportionality test as their preferred mode of adjudicating constitutional rights claims. Of German srcin, proportionality as a form of constitutional review to test the limits of governmental action has spread across continental Europe to Canada, New Zealand, the United Kingdom, South Africa, and Asia. 4  Well recognized are the four sequenced stages of a structured proportionality test: the legitimacy stage, the suitability stage, the necessity stage, and proportionality stricto sensu  . 5   2  R  EP  A CT N O  10173 (2012), ch III s 11. 3  As we shall discuss below, these provisos give Congress the power to determine, by statute, the limits or boundaries of these rights. 4  Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism   47 Columbia J  Transnat’l L 73, 75, 98–160 (2008); Bernhard Schlink, Proportionality in Constitutional Law: Why Everywhere but Here? 22 Duke J Comp & Int’l L 296 (2012); Alec Stone Sweet & Jud Mathews, Proportionality and Rights Protection in Asia: Hong Kong, Malaysia, South Korea, Taiwan – Whither Singapore? 29 Singapore  Academy of L J 774 (2017). 5  Stone Sweet & Mathews (n 4) 76–77; Kai Möller, Proportionality: Challenging the critics  , 10 Int’l J Const L 709, 711–16 (2012). Sometimes the legitimacy stage is not counted among the steps of the proportionality test: see Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence  , 57 U Toronto LJ 383, 387 (2007) (‘courts start by ascertaining the purpose of the law under review. Only a legitimate purpose can justify a limitation of a fundamental right. The three-step proportionality test follows…’).    Page 3  of 27   In the legitimacy stage, the government needs to show that its impugned action pursues a legitimate end. It determines whether a law’s purpose is permissible. 6  The sole consideration in this stage is whether the goal of the law is valid, not the state of mind of the decision-maker, 7  nor the extent of the limitation on the protected right. 8   The suitability stage assesses whether the measures adopted by the government are rationally connected or related to a stated governmental goal.  This stage is sufficiently satisfied if there is a connection, however small, between the stated goal and the government action. 9 Both the legitimacy and suitability stages are threshold examinations. 10  In the legitimacy stage, the court determines if a government measure’s goal is constitutionally proper without considering the means it employs. 11  In the suitability stage, the court merely ‘rules out’ means that limit a constitutional right without in any way advancing the intended goal. 12   The necessity stage, sometimes called the ‘least restrictive means’ test or the minimal impairment test, 13  requires that the government measures pursued must intrude into a protected right only as far as necessary. The government measure will fail this stage if the means employed is deemed beyond what is necessary to accomplish its goal.  Thus a government measure will not pass the necessity stage if the intended goal is not legitimate, the means employed is not at all connected to this goal, or there is a less restrictive way to achieve the same goal. 6  M  ARK  T USHNET ,    A DVANCED I NTRODUCTION TO C OMPARATIVE C ONSTITUTIONAL L  AW   72 (Elgar  Advanced Introduction series 2014). 7  Möller (n 5) 711–12. 8  A HARON B  ARAK  ,   P ROPORTIONALITY  :   C ONSTITUTIONAL R  IGHTS AND THEIR L IMITATIONS  249–250 (2012). 9  Möller (n 5) 713. 10  Barak (n 8) 315. 11  ibid at 246. 12  ibid at 315. 13  Tushnet (n 6) 73.    Page 4  of 27    The last stage, proportionality stricto sensu   (proportionality in the strict sense or proportionality ‘as such’ 14  ), determines whether the benefits of the government measures are proportional to the intrusion to an individual’s protected right. Sometimes called the ‘balancing’ stage, 15  proportionality stricto sensu   determines the justifiability of infringement in light of the gain that can be derived from implementing the government measure given the set of facts presented. This extends to the determination of whether a government measure that is least restrictive creates more harm than an end’s  worth. At this stage, courts balance the benefits to the public (pursued by the government measure) and the harm caused to a protected right. 16  In a way this stage follows a cost-benefit method of determining which value will prevail. The type of balancing used is fact-based as it balances the relevant data relating to the proper purpose, its marginal social importance, its degree of urgency, and the probability of its fulfillment within each specific case; it would also balance all the relevant data relating to the limited right, its marginal social importance, the degree of the harm it is likely to suffer and its probability as derived from the basic rule of balancing  within each specific case. 17   As a constitutional principle against excessive governmental actions, proportionality can be found in several areas of Philippine Law. Philippine jurisprudence also uses some (but not all) of the stages of the proportionality test. 18  For the longest time, the proportionality principle has in the Philippines been confined to the interpretive review of criminal statutes, particularly in light of the constitutional ban on ‘[e]xcessive’ and ‘cruel, degrading or inhuman’ fines and punishments. 19  In its 1953 decision People of the Philippines v. Dela 14  ibid 15  Barak (n 8) 340. 16  ibid 17  ibid, at 368. See also R  OBERT  A LEXY  ,    A    T HEORY OF C ONSTITUTIONAL R  IGHTS  101–109 (Julian Rivers trans; OUP 2002) 18  For a similar point about U.S. Constitutional Law, see Vicki C Jackson, Constitutional Law in an Age of Proportionality   124 Yale LJ 3094 (2015). 19  1987 P HIL C ONST (hereinafter Const), art III s 19(1) (‘Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for
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