The Benefits and Dangers of Proportionality Review in Israel's High Court of Justice

• Publication year: 2015
• Citation: Vol. 29 No. 3

The Benefits and Dangers of Proportionality Review in Israel's High Court of Justice

Michael Kleinman

THE BENEFITS AND DANGERS OF PROPORTIONALITY REVIEW IN ISRAEL'S HIGH COURT OF JUSTICE

In the landmark case Beit Sourik Village Council vs. the Government of Israel, the Israeli Supreme Court, sitting as the High Court of Justice (HCJ), grappled with a highly charged question: should a state have to sacrifice its own security to improve human rights?¹ The Court answered in the affirmative and held that certain sections of Israel's controversial security fence could not be built as planned.² In these sections, the loss of human rights outweighed the security benefit of placing the fence through certain villages.³ Scholars from both sides of the political spectrum have voiced strong opinions about this case,⁴ and many of these debates have centered on the determinative aspect of the case: the court's proportionality review.⁵ This Comment will not grapple with politics, nor will it focus exclusively on the Beit Sourik case. Rather, it will analyze this case and similar cases to argue about the theoretical implications of proportionality review in HCJ decisions. Through an analysis of these cases, this Comment will determine the best way that a court could grapple with the issue of balancing security and the right to life and bodily integrity against other human rights.

This Comment argues that the method of proportionality analysis implemented in earlier HCJ decisions should have been implemented in later decisions where the Court balanced the property, dignity, and free movement rights of West Bank Palestinians against the security, right to life, and bodily integrity rights of Israeli citizens. In earlier cases, notably Horev v. The Minister of Transportation, the Court evaluated and weighed the conflicting

[Page 590]

rights in a systematic and consistent way before proceeding to balance those rights against one another.⁶ This method ensured that the balancing was rooted in legal precedent and rationality. However, in later decisions balancing the right to life and bodily integrity against other rights, the Court demonstrated a less disciplined approach where it balanced the conflicting rights without determining the comparative value of those rights beforehand.⁷ This Comment argues that in these later decisions, the Court should have more carefully evaluated the relative value of the conflicting rights before proceeding to balance them against each other.

Part I of this Comment presents a brief overview of proportionality review and its benefits. Part II analyzes an earlier HCJ decision to show how it demonstrates those benefits, and also how it employs proportionality in a way that should have been employed in later decisions. Finally, Part III examines later HCJ decisions that weigh the right to life and bodily integrity against other human rights. It will critically examine the reasoning in these cases and argue that the Court should have followed precedent and evaluated the relative importance of the conflicting rights before beginning its proportionality review.

I. AN OVERVIEW OF PROPORTIONALITY

Proportionality review is a "widely diffused . . . [o]verarching principle of constitutional adjudication" that courts worldwide use to balance conflicting rights claims.⁸ Proportionality review comes into play when a government limits an individual's rights for a supposedly more important public right.⁹ Through this review, courts determine whether the government or legislative body properly compared the benefit of the public good against the detriment to

[Page 591]

individual or group rights, and if not, it will rule the act unconstitutional.¹⁰ The method has become so popular and widespread that it "has come to dominate the dockets of constitutional and supreme courts around the world,"¹¹ so much so that theorists claim that a pervasive "balancing consciousness" has replaced the question of whether to balance individuals rights against government action with the sole question of how to balance properly.¹²

Israel has been recognized as a world leader in consistently employing proportionality review in constitutional disputes. As early as 1992,¹³ Israel's HCJ has applied the principle of proportionality to hold that any government action that limits human rights must be proportional to the detriment to human rights; or, in other words, that "a decision of an administrative authority must reach a reasonable balance between communal needs and the damage done to the individual."¹⁴ The HCJ's version of the proportionality test breaks down into three parts. First, the Court determines whether the action had a rational connection to the government's stated purpose (the "rational means test").¹⁵ Next, the Court determines if the government employed the least restrictive means possible to achieve the stated goal (the "least injurious means test").¹⁶ Finally, the Court determines if there were alternative measures that would have achieved a slightly diminished version of the goal while significantly reducing damage to the other party's rights.¹⁷ The Court has called this last test the "proportionate means" test, or "proportionality in the narrow sense."¹⁸ This

[Page 592]

last test represents the upper limit of judicial activism in constitutional law in the world.¹⁹ The Court recognizes a legitimate governmental goal that could not have been performed with any less damage, yet the Court may require a different action to increase the rights of the damaged party.²⁰

Israel is not the only nation that employs proportionality review that includes the third narrow proportionality test.²¹ Proportionality review has "spread like wildfire" to become a powerful and influential constitutional doctrine worldwide.²² One scholar described proportionality as "the central standard today for judicial decisions dealing with competing values and interests in the public law of many democratic states."²³ Yet, scholars have recognized the State of Israel as a worldwide leader of proportionality review in constitutional issues;²⁴ one scholar argues that the Israeli Supreme Court applies proportionality "more consistently and rigorously than any other judicial body in the world."²⁵

Despite the virtues of proportionality review in general,²⁶ some scholars, such as Moshe Cohen-Eliya, have argued that the HCJ sometimes oversteps its bounds and applies the test in inappropriate ways, especially in regards to the third test.²⁷ According to Cohen-Eliya, the third proportionality test may present a "lack of democratic legitimacy in the granting of sweeping powers to judges to weigh the balance between societal goals and individual rights."²⁸ Rhis sort of balancing properly belongs with a democratically elected government, he argues, and not with democratically unaccountable judges.²⁹

[Page 593]

A. Positive Aspects of Proportionality

Despite the dangers of proportionality, the doctrine, when properly used, offers substantial benefits to democratic societies.³⁰ In Israel and abroad, these benefits have included an expanded array of protected rights, which results in a diffusion of political strife as less popular rights nevertheless draw judicial protection. Proportionality review also creates a constitutional culture that holds government accountable for theoretically any limitation on rights. This culture thereby prevents government institutions from deflecting judicial scrutiny by hiding within "legal black holes," or limitations on rights held as "off limits" from judicial scrutiny. Finally, proportionality review allows for a second look from judges, wherein legally trained eyes can critique and improve on the way that the executive or legislative branch chose to limit some rights for the sake of others.

1. Expanded Array of Rights

Proportionality review allows judges to reconsider the balancing of rights that elected officials perform even when those officials stayed "in bounds" and did not breach a fundamental right.³¹ For instance, in Horev v. Minister of Transportation, the government allowed restrictions on a fundamental right—freedom of movement—for the sake of protecting religious feelings (not freedom of worship), an admittedly non-fundamental right.³²

Proportionality review grows naturally out of an expanded set of constitutionally protected rights.³³ According to Cohen-Eliya and Porat, "the broader the conception of rights becomes, the greater the likelihood that these rights will at some point conflict with other rights or interests; therefore there will be a need to balance the rights . . . in order to arrive at the most reasonable solution."³⁴ Thus, proportionality review allows judges to double-check the balancing already performed by officials in a theoretically limitless array of situations, not just those that involve the most fundamental rights. For instance,

[Page 594]

the German Constitutional Court, one of the forerunners of proportionality analysis, considered riding horses in forested areas, feeding pigeons, smoking marijuana, and obtaining the permission to import certain breeds of dogs, as interests that should be protected as constitutional rights.³⁵ Thus, proportionality review expands the rights that a national court will protect by affording protection for rights beyond strictly "fundamental rights."

By contrast, in the American constitutional system, one of the few jurisdictions that still does not fully use proportionality review,³⁶ Supreme Court justices will only consider government infringement on rights preserved in the Bill of Rights or in Supreme Court jurisprudence that defines a given right as fundamental.³⁷ American constitutional culture declares that government officials have the publicly granted right and authority to limit non-fundamental rights; non-democratically elected judges have no power to second guess government decisions that steer clear of fundamental rights.³⁸ If the American Supreme Court...