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Iddo Porat, an Associate Professor at Israel’s College of Law and Business, is an expert in comparative Constitutional law and Legal Theory. Among various publications to his credit, he has also written extensively on the role of proportionality and balancing tests in legal cultures. In 2013, he co-authored a book Proportionality and Constitutional Culture.
Recently, he visited Tamil Nadu National Law School, Trichy to teach a course on Comparative Human Rights Law.
In this interview with Bar & Bench, Porat speaks on issues ranging from nuances and challenges in modern Constitutional law and his research on the proportionality doctrine, to parallels between Indian and Israeli legal cultures and international prospects for Indian law students.
Can you tell us a little about your field of expertise? What prompted you to take up Comparative Constitutional Law?
My field of expertise is Constitutional law; I was always drawn to constitutional law because of its unique paradoxes and complexities – it is both law and politics, both theoretical and practical, both about rights and about policy. Constitutional law is also a mirror to the culture, history and politics of society. This is why it is such a fascinating topic for comparative research.
What are the main challenges confronting Constitutional law globally?
I can see two main problems for Constitutionalism and they are Polarization and Globalization. Political polarization characterizes many countries today; the US is one prominent example. My own country, Israel, is another. Polarization presents a unique challenge to constitutional courts as they must strike a fine balance between protecting the fairness of the political game and the rights of citizens on the one hand, and not be drawn into the political game itself by being perceived as taking sides in it, on the other hand.
This is not an easy feat as the more the system is polarized, the more one of the sides will try to co-opt the court for its benefit, and once the court loses its perception of being neutral, it loses one of its greatest assets.
Globalization presents a host of challenges as well as opportunities for Constitution law. Globalization allows countries to benefit more easily from the legal achievements of other countries, since communication is much easier. Judges from different countries can meet and exchange views; it also allows for the development of what is sometimes termed Global Constitutionalism – the shared language of Constitutional law, and a shared set of rights across countries.
However, this also presents a challenge to Constitutional law, as courts must not lose the local perspective, and must be careful not to be perceived as sacrificing local interests for the sake of universal rights and to find favor in the international club of jurists and judges.
Globalization is also responsible for three phenomenon that constitutional courts everywhere grapple with – the globalization of information through information technology, international terrorism, and immigration.
What is your general evaluation of Indian Constitutionalism?
Indian constitutionalism is known to be innovative, activist, free minded, and, on the down side, chaotic and unpredictable. In all these regards, it resembles Israel very much. The decisions of the Indian Supreme Court are read across the globe, and in certain areas, such as social rights and the doctrine of basic structure, it is a global leader.
As far as I can form an opinion on it, the Indian Supreme Court looks to me as a Court that has gained great respect for vigorously protecting and promoting social justice and good governance in India, but must be careful not to spend its capital by being a victim of its own success and overusing its power (again, I am thinking here about the analogy of the Israeli Supreme Court).
Can you give a brief idea of your research on proportionality and on the idea of a Culture of Justification?
In my co-authored book, Proportionality and Constitutional Culture (CUP 2013), my co-author, Moshe Cohen-Eliya and I, developed the idea that proportionality review represents a Culture of Justification, and that the phenomenal success of proportionality and its fast global spread can be attributed to this culture.
Proportionality is a test for the constitutionality of an infringement of human rights. Human rights can be infringed (or burdened) only to the extent that the infringement is in the pursuance of the legitimate aim, that the means adopted are suitable for that end (suitability), that there is no least restrictive means for achieving the aim (necessity), and that the gain in achieving the aim is not overweighed by the gravity of the infringement of the right (proportionality in the strict sense).
Our book traces the development of this test in German Administrative and Constitutional law, its rapid spread especially since the 1980’s and 1990’s, and its success.
A Culture of Justification, we argue, is a legal and political culture in which each and every political act must be justified to the public in substantive terms (i.e., as being legitimate and proportionate) and in which the Court is the mechanism for imposing this justification. This culture replaces a Culture of Authority, in which the court only safeguards the limits of legitimate authority of each of the branches, but, within these limits, does not require substantive justification from them. A Culture of Justification has many advantages, but also dangers, as it represents an all-encompassing view of judicial authority to question and require justification from government.
As I understand it, proportionality has been introduced to Indian constitutional law, but not consistently or in a structured way, and there remains debate as to whether it should be further developed in India. Without getting into the current debate between reasonableness and proportionality, the introduction of proportionality to India makes sense according to our thesis, since the jurisprudence of the Indian Supreme Court manifests very well this Culture of Justification.
Does the doctrine of proportionality and the Culture of Justification find any significance in the contemporary context of issues such as terrorism, the immigrant crises and the like?
Adopting proportionality and the Culture of Justification means more judicial review of policy and human rights issues, and less areas where the State can be immune from judicial review. In the words of former Chief Justice of the Israeli Supreme Court, Aharon Barak – a great advocate of proportionality – there should be no “black holes”, by which he means, no areas where the State is not accountable to anyone, and does not need to give justification for its actions.
The global move towards proportionality and the Culture of Justification, therefore, means that courts have a greater role in decisions that were once relegated exclusively to the state, such as immigration policy, and also security matters, such as the fight against terrorism.
In my own country, Israel, the court has been very active in safeguarding human rights in both these areas. It has declared unconstitutional the policy of detaining illegal immigrants in detention centers for long periods of time, and it has been one of the first courts to review interrogation tactics of suspected terrorists, and make some of them unlawful.
This, on the one hand, has established it as protector of human rights and a strong liberal court, but, on the other hand, has alienated parts of the population in Israel, as well as parts of the political establishment.
What is your opinion on the recent Right to Privacy judgment?
Puttaswamy is a fascinating case for several reasons. First, it is a very clear instance of Global Constitutionalism. This is so, since it is based on the idea that there is a global list of rights that all constitutions around the world include, either explicitly or implicitly, and it is the task of Supreme Courts to find the rights in this list within the local constitution. Since privacy is on that global list, the Supreme Court of India naturally found it to be embedded in the Right to Life with dignity under Article 21 of the Constitution.
The same happened in Israel when the Supreme Court of Israel found many rights that are not enumerated in the Israeli Basic Laws, in the right to human dignity. Similarly, the Puttaswamy case is also a clear instance of what I termed in an article the Platonic Conception of Rights – the idea that this list of rights represents a Platonic Idea or objective truth, and that texts of Constitutions are only a partial and flawed reflection of that ideal. Again, according to this conception, it is the task of courts to bridge the gap between that text and that ideal.
The judgment reflects the clear rejection, in India, of the originalist interpretation of the Constitution – that is, interpretation according to the original intent of the framers of the Constitution. The Indian Court found the right to privacy to be part of the right to life with dignity, despite of the fact that the framers of the Indian Constitution decided against including it.
In a sense, the Court is redrafting the Constitution, and transforming it into a Constitution it deems more appropriate for the Indian society, than the one drafted under very different conditions at the founding of India – one that is also closer to the current global ideal of rights. Whether this is good or ban may depend on one’s perspective.
Do you think Constitutional courts should cite foreign law in their decisions?
The Puttaswamy case is also fascinating for its very extensive use of foreign law. The Court cited extensively from foreign cases, texts, and legal literature to support its conclusion in favor of recognizing a right to privacy. I think that the use of foreign law is an enriching and indispensable tool for judicial reasoning, especially in apex courts. It has several advantages, including being open to new ideas and constantly testing your own ideas, being able to use other jurisdiction as experimentation labs for testing the feasibility and appropriateness of legal arrangements and policies, and engaging in communication and exchange with other courts, thus promoting openness to other cultures, and a cosmopolitan identity.
As with all other judicial reasoning tools, the use of foreign law should be done reasonably and with a special attention not to take things out of context, and not to engage in cherry picking – that is selective picking of only those examples that suit your arguments. It is only when the court uses foreign law as a legitimizing tool, that this use can get problematic. A legitimizing use is when the court does not cite foreign law merely for examples, ideas, and testing policy, but in order to make the argument – since everyone (or certain important countries) do this, so should we.
The Platonic Conception of Rights, and Global Constitutionalism, that I mentioned earlier, sometimes steer the court in the direction of such use of foreign law. The court basically says – since all modern, liberal countries have privacy, this means that it is on the “Platonic” list of rights, and we should adopt it too.
What brings you to TNNLS? How has your experience been?
I was invited to teach an intensive course on Comparative Human Rights Law by the Vice Chancellor of TNNLS, Kamala Sankaran, as part of her effort to expose the students to a range of scholars and to increase the international presence at the school.
I was very impressed by the level of the students and the faculty. I had the chance to teach law in the US, Australia and Israel, and I can say that the students at TNNLS did not fall short of any of these. They read the materials, were very engaged, asked smart and original questions, and were passionate and informed about Indian constitutionalism. The faculty was mostly young, showed a variety of interests in law, and some of the projects I’ve heard about from them were cutting-edge and fascinating.
I got to appreciate the special pride that residents of Tamil Nadu take in their state and in their culture, and also the fact that National Law Schools can be very selective and hence attract very good students. All in all, I had a very good experience.
What is your opinion of legal education in India? What can we learn from Israel and other countries?
I found some surprising commonalities between Israeli students and Indian students during my teaching at TNNLS. Both are not afraid to speak their mind, are original thinkers, can think outside the box, and are motivated and energetic. Both can be also unruly at times and need the constant attention of the lecturer!
Israel is known as the Start-up Nation. I think India, which is also a technology power house, can learn from Israel about ways of integrating technology into higher education. Especially given the geographical expanse of India, it can make use of online integrated courses. Technology can be used also within the more traditional setting of education, by introducing elements such as online assignment, half online half frontal teaching, online feedback and also the use of media in class. Israel has also developed very vibrant legal clinics in law school, which is another avenue of innovation in law teaching that I would recommend.