The content of the test

The last test of proportionality is the “proportional result,” or “proportionality stricto sensu” (Verhältnismässigkeit im engeren Sinne). This is the most important of proportionality’s tests. What does the test require? According to proportionality stricto sensu, in order to justify a limitation on a constitutional right, a proper relation (“proportional” in the narrow sense of the term) should exist between the benefits gained by fulfilling the purpose and the harm caused to the constitutional right from obtaining that purpose. This test requires a balancing of the benefits gained by the public and the harm caused to the constitutional right through the use of the means selected by law to obtain the proper purpose. Accordingly, this is a test balancing benefits and harm. It requires an adequate congruence between the benefits gained by the law’s policy and the harm it may cause to the constitutional right. As I have written on this test in Adalah:

Consider the following examples regarding the use of this sub-test:

1. A provision in the Law of Citizenship and Entry into Israel (Temporary Order), 2003 sets a blanket restriction on the entry of spouses of Israeli citizens residing in the Occupied Territories (Gaza and the West Bank) into Israel. The reason behind this is national security. The Israeli Supreme Court held that the restriction satisfies the proper purpose, rational connection, and necessity components. Does the law satisfy the proportionality stricto sensu test? Five Justices (out of the eleven) were of the opinion that the test was not met, since the law “sets a disproportional relation between the measure of additional security in comparison to the former arrangement, which was based on individual examination … and the additional harm to the constitutionally protected right to human dignity that the new measure creates.” Five of the remaining six Justices were of the opinion that the relation was proportional. The eleventh Justice held that the necessity test was not met.

2. A provision in legislation relating to the Security Fence in the West Bank ordered the seizure of land – while compensating the owners – for the erection of the fence. The purpose of the fence’s erection was national security. It was held that a rational connection exists between the erection of the fence and these national security considerations. Finally, it was held that no other means would have achieved this national-security-related goal with less restrictive effect. However, the Court held that the part of the fence at issue did not meet the proportionality stricto sensu test. As noted in my opinion: “There is no proportional relation between the degree of harm to the local residents and the security-related benefits yielded by the erection of the Security Fence in the precise location ordered by the military commander. The construction of the fence in that location would undermine the delicate balance between the commander’s duty to guarantee national security and his duty to guarantee that the needs of the local residents are met. Our approach is based on the notion that the location chosen by the military commander for the Security Fence – which would separate the local residents from their farmlands – causes extensive harm to those local residents while violating their rights in accordance with International Humanitarian Law.”

3. Regulations promulgated in Ontario, Canada, following the enactment of the Canadian Health Disciplines Act restricted dentists’ advertisements. A dentist who broke this law was convicted and appealed to the Supreme Court. The Canadian Supreme Court held that the regulations limited the dentist’s right to freedom of speech. Regarding proportionality, the Court held that the regulations were promulgated for a proper purpose and that they met the rational connection test. The Court held that the benefits in ensuring professionalism and preventing irresponsible and misleading advertising are not proportional to the harm done to the freedom of expression.