Research Paper Number

46/2009

Document Type

Article

Publication Date

2009

Keywords

Constitutional rights; migration of adjudication mechanism; proportionality analysis

Abstract

This paper explores proportionality analysis as a constitutional standard that allows courts to engage in a public conversation, especially with the legislature. This conversation would consider the concept, structure and normative force of fundamental rights, the way in which two or more rights compete and collide, and as to how a particular disagreement about rights can be addressed. What is particularly appealing is the way in which this approach to proportionality analysis does not prescribe any legitimate means ‘per se’. It is relational because it must apply the means to achieve a particular aim in a real situation and decide if the sacrifice applied to a particular right is proportionate. This may eventually offer better public engagement with judicial arguments and endorse judicial independence by rendering the decision more structured, open and transparent. A further aim of this paper is to fulfill the knowledge gap about the migration of proportionality analysis as a rights adjudication mechanism to Latin America and, at the same time, make a claim for a context-sensitive approach. The hope is that judiciaries will learn from recent pitfalls that occurred under authoritarian regimes in Latin America where decisions were based upon excessive formality and disregard of relevant factors involved in rights claims. The recent adoption of proportionality analysis by the Mexican Supreme Court in 2007 has created the option of a new appraisal of its migration to Latin America.

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