Proportionality in Asia: Joining the Global Choir

Abstract

In Asia, only the Courts in Taiwan and South Korea, and Hong Kong deploy Structured Proportionality: the Courts reason through a structured three or four-stage Proportionality Analysis (PA) sequentially and use PA to enforce constitutional rights against the government regularly. In contrast, courts co-existing with dominant ruling parties (Japan’s Liberal Democratic Party and Malaysia’s Barisan Nasional) or military governments (Thailand) would defer substantially to the ruling regime and apply an anemic / ad hoc variant of PA. Judges whose reelections are in the hands of the political branches of government are equally docile, as is the case in Indonesia. The legal education of the judges and the courts’ primary source of comparative constitutional study is also determinative of how successfully PA is diffused and locally transplanted. Courts that do not formally use PA, but create doctrinal equivalents, are usually those courts whose judges are generally not trained in countries that apply PA and their primary source of foreign constitutional law are not countries with PA. We see this in Bangladesh and the Philippines. But these doctrinal equivalents – which in substance resemble the various subtests within PA – serve the same constitutional purposes and have the same constitutional effects.