The Application of Proportionality in Public Law

1. Traditionally at common law under the umbrella of Wednesbury unreasonableness

Common law review: Proportionality as a test of fair balance:
R v Barnsley MBC, ex p Hook [1976] 1 WLR 1052: Excessive punishment is bad in law.
R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 All ER122: Excessive
fine imposed for a minor wrong committed is bad in law.
LBC s case: Bromley LBC [1982] 2 WLR 62 fair balancing of two competing interests of two
opposing groups - - viz., that of the travelling public and that of the property owners who had to
bear additional property tax for subsidising the reduction in tube fare for the travelling public.

2. EU law of proportionality
Constitutional review: Proportionality as a structured three-step test of justification.
Fundamental right adversely affected.
Malaysia: Sivarasa Rasiah [2010] MLJ.
Om Kumar [India]
This usually involves a three-stage cumulative process of review by the court.
[A]ll forms of state action-- legislative or executive measure that infringe a
fundamental right must:
(a) have an objective that is sufficiently important to justify limiting the right in
question;
(b) the measures designed by the relevant state action to meet its objective must
have a rational nexus with that objective; and
(c) the means used by the relevant state action to infringe the right asserted must be
proportionate to the object it seeks to achieve.
Per Dato Gopal Sri Ram FCJ in Sivarasa Rasiah v Badan Peguam, Malaysia [2010] 2
MLJ 333, (FC) at para 30 at p 351.
2.1 Huang (mentioned before)

3. Under Section 36 of the South African Constitution.

S. 36 Limitation of rights
(1) The rights in the Bill of Rights may be limited only in terms of law of general application to
the extent that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account all relevant factors, including(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law
may limit any right entrenched in the Bill of Rights.
Quaere: How different is this test from the three-step test re-affirmed in Sivarasa Rasiah?
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