A lesson in proportionality and rights

We can learn from Israel, Germany and South Africa on the vital importance of proportionality as a test to limits on human rights
Afua Hirsch
guardian.co.uk, Friday 5 June 2009 11.31 BST
http://www.guardian.co.uk/commentisfree/libertycentral/2009/jun/05/israel-barak-human-rights

You can see it as a paradox of puzzling proportions, or as a stark example of the separation of powers in motion. Either way, Israel has always attracted – if not in equal measure – condemnation for the policies of its executive branch that violate human rights, and praise for its supreme court for protecting them. It is the independence of Israel's supreme court that allowed it, under the presidency of Aharon Barak, to reach judgments condemning some of those policies – including the use of human shields, prohibitions on repatriating non–Israeli spouses and the detention of hostages as a political bargaining tool.



This is not to say that the legacy of a court can be judged in isolation from the political context in which it operates. Many have criticised the liberalism of Barak's court, accusing it of "allowing the development of the occupation machine". "An eminent, liberal, sympathetic and paternal jurist who did not hold himself above the people, Barak also gave the horrors of the oppression a legitimate front", wrote Israeli historian Tom Segev in 2006.



But whatever your view of Barak's relationship with that wider context – others have called him the world's greatest living jurist – there are lessons to be learned by the confidence with which he dismisses judicial deference to laws passed in reaction to "the threat of terror".



"Many legal systems have strong protections in times of peace but not in times of war", Barak said yesterday, delivering a speech about human rights and their limits at Oxford University's Foundation for Law, Justice and Society. "I spent 28 years in court, I saw the rise of terror and the fall of terror", he added. "In a country like Israel where terror is always with you, you had to develop ways of thinking which will not distinguish between terror and peace. If you develop special categories in times of war, you will not be able to get rid of them. They will linger in times of peace."



At a time when the 46 member states of the Council of Europe and even members of the Labour government in the UK are waking up to the fact that counter-terror legislation introduced since 9/11 has had devastating effects on rights, there is wisdom to be gleaned from Barak's perspective. The limitation of human rights by the state, he argues, can only be justified when strict conditions are satisfied; it must be in pursuit of a legitimate goal – including preserving national security – and the means must be proportionate to the ends.



This is the approach adopted by the European convention on human rights – which states that some rights are absolute (the prohibitions on slavery and torture, for example), but that others can be interfered with to achieve various societal ends. Suspects can be deprived of their liberty to prevent crime, for example, and MPs can suffer the invasion of their privacy to expose information which is in the public interest.



The balancing act involved in this equation should be able to reflect the historical and social context of an individual jurisdiction, Barak argues. In Germany, whose constitution was in large part a response to the experience of Nazism, dignity is a priority. As a result, in February 2006 Germany's constitutional court overturned the Aviation Security Act, which authorised the military to shoot down a passenger plane suspected of being hijacked – inevitably killing innocent civilians – in order to prevent a 9/11 situation.



Sacrificing of innocent life to secure utilitarian ends, the court said, departed fundamentally from the principle of human dignity, by allowing human lives to be treated as tools used to avert disaster. The court condemned the effect of a precedent that would enhance the power of the state at the expense of fundamental individual rights.



In post-apartheid South Africa, where the key constitutional principles are equality, justice and dignity, one of the earliest acts of the supreme court was to abolish the death penalty. The alleged benefits of capital punishment – said by some to be a fitting punishment and deterrent to violent crime, were disproportionate to the effect on rights, in a context where it had been used as a tool for specifically controlling and punishing the opponents of apartheid.



The UK has no written constitution – and no recent domestic trauma on a scale matching Nazism or apartheid – and whether judges consistently had regard to the principles of proportionality before the human rights act depends on who you talk to. Instead there was a very British test for determining whether decisions of the executive fell foul of the law – the question was not whether they were proportionate but whether they were "unreasonable".



Proportionality is a better test. As Barak said, "The advantages [of proportionality] are several. It stresses the need to look always for a justification of a limit on a human right; it structures the mind of the balancer; it is transparent; it creates a proper dialogue between the political branches and the judiciary; it adds to the objectivity of judicial discretion."



The government have not been shy in throwing national security arguments at the courts to justify the limiting of rights. And in celebrated acts of judicial defiance, the courts have scrutinised the proportionality of these arguments and found them lacking. Indefinite detention without trial, for example, obviously had its uses for the executive, but was found by the House of Lords to be a disproportionate interference with the right to liberty, among others.



It was the Human Rights Act that allowed this, by bringing proportionality into English law, and in doing so brought us in line with international consensus. It's not clear whether any of the groups currently arguing for the repeal of the human rights act have a sufficiently sophisticated understanding of proportionality to understand the impact that losing it would have. But suffice to say it would leave Israel's supreme court way, way ahead of our own.



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