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Towards a framework for understanding constitutional deference 305
become involved because of the social or political consequences of doing
so. 63 Nevertheless, in principle, the political nature of the decision may
legitimately form the ground for a deferent stance by the courts.
A second instance where courts are more likely to be deferential to the
decisions of the executive or legislature is where the constitution or right
in question permits a wide range of legitimate responses, or where the right
has to be balanced against another right. Young calls this ‘substantive
legislator deference’. 64 Examples of such situations can be found in the case
law of Canada and the United Kingdom. In Canada, in both Edwards Books
and Irwin Toy, 65 for instance, the key factor underpinning the Supreme
Court’s approach to deference was the fact that the legislative decision
under review was aimed at reaching a compromise between the rights of
two competing groups. Similarly, in Kebilene and Roth, 66 the House of
Lords noted that where rights are unqualified, courts are well placed to
determine the content of the right and the legality of any infringement to
that right; but where the Convention requires a balancing of rights, greater
deference is due.
A variation on this theme has been enunciated by the South
African Constitutional Court in Ferreira v Levin, 67 where Ackermann J, in a
discussion of the broad, residual nature of the right to freedom and security
of the person in section 11 of the interim Constitution, acknowledged that
the German Federal Constitutional Court was more deferent to the
German legislature in areas protected by the general right of ‘freedom of
action’ in contrast to other rights which are more expressly protected. This
approach, the Court noted, is analogous to the United States ‘heightened
scrutiny’ of ‘fundamental rights’. In short, Ackermann J found that
where a right is expressly and narrowly protected in the Constitution, the
Court would be less deferent to the legislature than would be the case where
the interest was protected generally or through a residual right. Hence,
where a right is given express and precise protection, courts will be less
deferent in protecting that right.
Third, when fundamental rights, highly prized in a particular society,
are at issue, a court is less likely to defer to choices made by the agency in
question. This approach often results in courts drawing lines between what
63 For other academic criticism of this reasoning, see S Fredman ‘From deference to
democracy: The role of equality under the Human Rights Act 1998’ (2006) 122 Law
Quarterly Review 53 61; D Dyzenhaus & M Hunt ‘Deference, security and human rights’ in
J Goold & L Lazarus (eds) Security and human rights (2007) 125 130.
64 AL Young ‘Ghaidan v Godin-Mendoza: Avoiding the deference trap’ (2005) Public Law 23
31.
65 R v Edwards Books and Art Ltd [1986] 2 SCR 713 para 151; Irwin Toy Ltd v Quebec (AG)
[1989] 1 SCR 927 para 74.
66
Kebilene (n 31 above) 380; Roth (n 31 above) 84, per Laws LJ in dissent.
67 Ferreira v Levin NO; Vryenhoek v Powell NO 1996 1 SA 984 (CC).