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Principles and standards Archives: Proportionality

Kong Yunming v. Director of Social Welfare, FACV No. 2

On 17/12/2013 in

Year: 2013 (Date of Decision: 17 December, 2013)

Forum, Country: Court of Final Appeal; Hong Kong

Standards, Rights: Proportionality; Non-discrimination and equal protection of the law; Right to social security; Migrants

Summary Background: This judicial review of the complainant’s rejected social security application assessed the constitutionality of the seven-year residence requirement for social security. The complainant moved to Hong Kong to live with her husband, but she became homeless because her husband passed away a day after her arrival and his residence was repossessed. The complainant applied for social security four months after arriving in Hong Kong. The complainant would have qualified for social security but for the new seven-year residence requirement.

Holding: Ribeiro J; Tang PJ, Lord Phillips NPJ & Ma CJ concurring: The Court held that policies formulated to uphold the right to social welfare in article

Hong Kong residents shall have the right to social welfare in accordance with law. The welfare benefits and retirement security of the labour force shall be protected by law.
of the Basic Law must be read together with “economic conditions and social needs”, as per article
On the basis of the previous social welfare system, the Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs.
[paras. 17 and 18].

Article 145 does not preclude reducing welfare entitlements if that maintains the sustainability of the welfare system [para. 37]. Although the Court did not recognize the right to social welfare as a fundamental right, it held that that population growth, an ageing population and rising social security expenditure were not rational justifications for the seven-year requirement, as there were other means of addressing those problems [paras. 66, 75, 96].

The Court indicated that deterring immigration, immigrants’ ability to rely on charities were not arguments for the reasonable proportionality of the seven-year requirement [sections L.1 and L.2]. The Court ruled that the Director’s discretion in and guidelines for waiving the seven-year requirement presented immigrants with “a very high threshold” [section L.3, para. 136].

Bokhary NPJ stated that the seven-year requirement violated the principle of equality before the law under article 25 of the Basic Law and article 22 of the Hong Kong Bill of Rights, the latter of which is taken from article 26 of the ICCPR. Bokhary NPJ also held that article 145 of the Basic Law implies that social security policies should be formulated progressively rather than retrogressively. Bokhary NPJ also cited Basic Law provisions that constitutionally guarantee articles 2 and 9 of the ICESCR, as well as CESCR’s concluding observations in 2005 on Hong Kong.

The Court unanimously declared the Director’s seven-year residence requirement to be unconstitutional, restoring the previous one-year requirement [para. 144].

Additional Comments: What distinguished Bokhary NPJ’s separate concurring judgement was his account for international human rights law as well as his emphasis on constitutional guarantees for all Hong Kong residents, including non-permanent ones like the complainant.

Link to Full Case: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=90670

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Reyes Aguilera, Daniela v. Argentina

On 05/02/2013 in

Year: 2013 (Date of Decision: 5 February, 2013)

Forum, Country: Supreme Court; Argentina

Standards, Rights: Reasonableness; Proportionality; Nondiscrimination and equal protection of the law; Right to health; Right to social security; Right to an adequate standard of living; Children; Persons with Disabilities; Migrants

Summary Background:

The petitioners in the case asked for a court order compelling the Comisión Nacional de Pensiones Asistenciales (national agency in charge of welfare pensions) to grant a disability pension to Daniela Reyes Aguilera, a 12-year-old Bolivian girl with a severely disabling condition. On the basis of national constitutional law and international human rights law, the petition challenged a discriminatory regulation requiring immigrants to prove 20 years of residence in Argentina to become eligible for a disability pension.

Holding: The Court decided the case in favour of the petitioners and declared that Daniela was entitled to obtain benefits.

The Court affirmed that there is a cognizable human right to social security. The eligibility requirement of 20 years residency for immigrants to receive disability pension was found to be unconstitutional as it was not justified [pp. 8, 27, 34 and 41], was unreasonable (“irrazonable”) [p. 39] and was a disproportionate limitation to the right to social security. The decision also cited other grounds for unconstitutionality of the rule including breach of the right to non-discrimination on the basis of national origin [p. 2 and p. 36], as well as violation of the rights to life [pp. 15], equality before the law [p. 5, 19] and right to health and social security [p. 7].

Additional Comments: The strict scrutiny test was applied. It is also important to note that since the judgement applied only to the case brought before the Court, Daniela did receive a disability award as per the Court’s decision but the residency requirement rule for immigrants was not altered.

Link to Full Case: http://www.cels.org.ar/common/documentos/reyes_aguilera.pdf, summary in English at http://www.escr-net.org/docs/i/1091579

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ADPF 186 (Arguição de Descumprimento de Preceito Fundamental n.186)

On 26/04/2012 in

Year: 2012 (Date of Decision: 26 April, 2012)

Forum, Country: Supreme Court; Brazil

Standards, Rights: Reasonableness; Proportionality; Non-discrimination and equal protection of the law; Right to education

Summary Background: The issue at stake in this case is the constitutionality of racial quotas in the admission process at the University of Brasilia.

Holding: In this case, the Brazilian Federal Supreme Court declared the racial quotas in University admission processes to be constitutionally lawful. The case referenced national constitutional law as well as the International Convention on the Elimination of All Forms of Racial Discrimination [p. 8]. The Court stated that these affirmative policies set a plural and diversified academic environment, and aimed at overcoming historically entrenched social distortions as well as to promote the principle of de facto equality as applied to racial discrimination in education [p. 47].

The Court addressed the issues of proportionality and reasonability as standards to evaluate the constitutionality of policies aimed at achieving racial equality. The decision concluded that the means employed by the University were distinguished by proportionality and reasonability to the ends pursued, particularly given the transient nature of their scope of application (with the inclusion of a periodic review of as to results) [p. 45].

The President of the Court asserted that the Constitution has given legitimation to every public policy promoting historically and culturally marginalized social sections: “[t]hose are affirmative policies entitling every human being the right to an equal and respectful treatment. This is the way we build up a nation”.[254] During the Court session, the Ministers (the title given to Supreme Court Judges in Brazil) stated that the quotas were compatible with the Constitutional mandate to establish a free, fair and united society and the eradication of social marginalization and inequality.

Additional Comments: The decision confirmed the constitutionality of racially-based affirmative action programs adopted by other universities in Brazil. Brazilian universities who have adopted affirmative action can now preserve these programs.

Link to Full Case: http://www.acoes.ufscar.br/admin/legislacao/arquivos/arquivo13.pdf

Footnotes    (↵ returns to text)

  1. 254. See the information provided by the Federal Tribunal, accessible at: http://www2.stf.jus.br/portalStfInternacional/cms/destaquesClipping.php?sigla=portalStfDestaque_en_us&idConteudo=207138↵
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Lopez and Syndicat SYNPTAC-CGT v. SARL Théâtre d’Aubervilliers

On 06/12/2011 in

Year: 2011 (Date of Decision: 6 December, 2011)

Forum, Country: Industrial/Labour Court; France

Standards, Rights: Non-discrimination and equal protection of the law; Proportionality; Right to decent work

Summary Background: Issue at stake in this case: the lawfulness of the dismissal of the plaintiff, a representative of a trade union who, as part of her responsibilities within the company board, denounced to the police and the labour inspectorate in 2005 gaps in safety conditions at her work place. Since then, and although she had been under permanent contract for four years, she had been facing threats of dismissal and disciplinary measures against her. The labour inspectorate and several administrative and judicial bodies had questioned and sought to prevent the dismissal of Ms Lopez.

Holding: The judge found a violation of several articles of the Labour Code (Code du Travail), especially article

Aucune personne ne peut être écartée d’une procédure de recrutement ou de l’accès à un stage ou à une période de formation en entreprise, aucun salarié ne peut être sanctionné, licencié ou faire l’objet d’une mesure discriminatoire, directe ou indirecte, telle que définie à l’article 1er de la loi n° 2008-496 du 27 mai 2008 portant diverses dispositions d’adaptation au droit communautaire dans le domaine de la lutte contre les discriminations, notamment en matière de rémunération, au sens de l’article L. 3221-3, de mesures d’intéressement ou de distribution d’actions, de formation, de reclassement, d’affectation, de qualification, de classification, de promotion professionnelle, de mutation ou de renouvellement de contrat en raison de son origine, de son sexe, de ses moeurs, de son orientation sexuelle, de son âge, de sa situation de famille ou de sa grossesse, de ses caractéristiques génétiques, de son appartenance ou de sa non-appartenance, vraie ou supposée, à une ethnie, une nation ou une race, de ses opinions politiques, de ses activités syndicales ou mutualistes, de ses convictions religieuses, de son apparence physique, de son nom de famille ou en raison de son état de santé ou de son handicap.
prohibiting any discrimination including on the ground of union activities or membership [p. 5]. In particular, the judge found a clear causality link between the steps taken by Ms Lopez to ensure safe and fair conditions of work within her company and the attacks against her, based on the chronology of events, and the fact that no complaint had been made previously about the employee [p. 6]. He also reviewed the reasons put forward by the employer to explain the disciplinary measures and considered the latter has failed to provide objective elements and thus these reasons were disproportionate and insufficient to justify a dismissal [p. 6].

Additional Comments: While he did not decide in favour of the plaintiff in respect of her allegation of psychological harassment, on the grounds of insufficiency of evidence, the judge did order the maintenance of the plaintiff in her job and her reinstatement in the responsibilities of 2004, before the conflict with her employer. He further awarded Ms Lopez damages of 40,000€ to compensate the five years of discrimination on the ground of union activities and of facing disciplinary measures against which she had to defend herself.

Link to Full Case: For contact details of the Conseil de Prud’hommes de Bobigny, please visit: http://www.caparis.justice.fr/index.php?rubrique=11016&ssrubrique=11069&article=14715

Copy of the decision on file with ICJ

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Case No. 2009-43-01 on Compliance of the First Part of Section 3 of State Pensions and State Allowance Disbursement in 2009

On 21/12/2009 in

Year: 2009 (Date of Decision: 21 December, 2009)

Forum, Country: Constitutional Court; Latvia

Standards, Rights: Proportionality; Legitimate expectations; Right to social security

Summary Background: This case challenged the constitutionality of State pension law that temporarily restricted payment of pension funds to reduce the State’s budget deficit. The Parliament in response said that it was necessary as a step to effectively contain the country’s escalating financial crisis.

Holding: Based on the Constitutional mandate to harmonize human rights provisions within the Constitution with the international human rights regime, the Court cited article

The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.
of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and concluded that the right to pension is included within the fundamental right to social security under article 109 of the Constitution [para. 20]. The Court acknowledged that this fundamental right may be restricted if such restriction is established by law, justified by a legitimate end and conforms to the principle of proportionality [para. 26]. The restrictions were clearly established by law and the Court found that the challenged provisions did have a legitimate end – namely securing the sustainability of the social insurance budget ensuring the welfare of society [paras. 26 and 27].

Reaffirming its earlier case law, the Court stated that the principle of proportionality prescribes that, in cases where a public authority restricts the rights and lawful interests of persons, a reasonable degree of proportionality between the interests of persons and the interests of the State or society should be attained. To determine whether a legal provision adopted by the legislature satisfies the principle of proportionality, one should clarify 1) whether the means used by the legislature are appropriate for achieving the legitimate end; 2) whether such an action is indispensable, i.e. the end cannot be achieved by other means, namely less restrictive alternatives; and 3) whether the benefit for society will be more significant than the detriment to the rights of individual persons. If, while assessing a legal provision, it can be established that it does not comply with at least one of these criteria, it follows that the legal provision in question does not comply with the principle of proportionality and therefore is unlawful [para. 28]. The law failed the proportionality test because Parliament had not considered other less restrictive alternatives. Thus the new pension law provisions were held to be in violation of article 109, of an individual’s right to pension [paras. 30-30.2.1.].

The Court also held that the provisions violated the principle of legitimate expectations as protected by article 1 of the Constitution. This principle requires the State, when it alters the existing legal order, to maintain a reasonable balance between a person’s confidence in the currently effective legal order and those interests for the sake of which changes are being made.

The court held that in determining whether an appropriate balance has been struck, consideration should be given to whether the planned transition to the new legal order is sufficiently lenient and whether there has been an adequate transition period or granting compensation. Both these conditions were not met in this case where the transition was exceedingly rushed and there was no plan for future compensation of the reduced pensions [para. 32].

In reaching its overall conclusions in this case, the Court, citing the Limburg Principles, its own prior jurisprudence and the General Comment 19, considered that minimum essential levels must be guaranteed irrespective of resources and vulnerable groups such as pensioners must be particularly protected [paras. 28-31.2].

In addition and in response to the State’s reference to obligations under international loan agreements as a factor underlying the pension cuts, the Court ascertained that it was actually the Cabinet of Ministers who had proposed reductions of pension funds. But even if these conditions have been explicitly imposed by the creditors, the Court stated that conditions “cannot replace the rights established by the Constitution.” The Court held that international commitments assumed by the Cabinet of Ministers cannot by themselves serve as a basis for the restriction of the fundamental right to social security [para. 30.1].

Also important to note is that in analyzing compliance of the State to its human rights obligations, the Court held that the State has a threefold duty in the area of each fundamental right, namely to respect, protect and guarantee the rights of persons. Acting in conformity with human rights, States thus should enact a range of measures – both passive, for example noninterference with rights, as well as active, for example fulfilling people’s individual needs [para. 24].

In conclusion, the Court ordered that since the challenged pension provisions have been found unconstitutional and invalid, that the pension cuts must be discontinued and that the Parliament had to establish a reimbursement procedure for deductions already made [The Ruling Part at the end of the Decision, paras. 1-3].

Additional Comments: Given that social security systems in different countries are facing budget cuts and austerity measures in the wake of global financial crisis, this is an important case that elevates human rights considerations in the context of public policy decision making.

Link to Full Case: http://www.satv.tiesa.gov.lv/upload/Judgment%202009-43.htm

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