Walking the Tightrope between Legality and Legitimacy – Taking Rights Balancing Seriously
(2017) 29 SAcLJ 743
The discourse of proportionality and balancing permeates constitutional rights scholarship, and numerous scholars have proffered a plethora of normative justifications for proportionality-based balancing in contemporary democratic societies. Parliamentary sovereignty in its Diceyan conception often clashes with enshrined constitutional rights, leaving the Judiciary in an unenviable position to resolve this conflict in a principled manner. This article analyses how courts engage with the principle of proportionality-based balancing in determining the validity of laws limiting constitutional rights. By focusing on the free speech jurisprudence of Singapore and Australia, it discusses how courts in these jurisdictions negotiate the tightrope between fidelity to the written text of the constitution and a commitment to their role as guardians of fundamental rights and liberties.