ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

27 PROPORTIONALITY AND
PARTICIPATION IN PUBLIC LAW
Panel formed with individual proposals.
Participants Eszter Bodnár
Eduardo Ribeiro Moreira
Cora Sau Wai Chan
Fabiana Di Porto
Nicoletta Rangone
Name of Chair Eszter Bodnár
Room DOR24 1.601
Eszter Bodnár: The Role of Public Hearings in
the Constitutional Review Procedure
Hungary’s Constitutional Court was often considered
to be an “ivory tower” and was criticized because
the lack of public hearings. In 2013, the Hungarian Parliament
prescribed that, in certain cases, Constitutional
Court shall hold oral hearings that should be public but
since then no oral hearing has taken place. Oral hearings
are not an unusual element of the constitutional
review procedure. The US Supreme Court, the German
Constitutional Court or the Constitutional Council in
France can hold oral hearings, which are usually open
to the public. What are the functions of oral hearings?
Are they necessary elements of a constitutional court’s
procedures? What are the advantages, disadvantages
and risks of holding an oral argument? Should oral
hearings be public? If yes, how broad should the openness
be? To answer these questions, the paper uses a
comparative perspective. Finally, it aims to explain the
causes of the Hungarian situation and seek possible
solutions for its improvement.
Cora Sau Wai Chan: Rights, Proportionality and
Deference: An Empirical Study of Judgments in
Post-Handover Hong Kong
The paper presents the findings of a study of
judicial deference in human rights cases handed
down by courts in Hong Kong since its return to
Chinese sovereignty. The study uses a combination
of qualitative analysis and quantitative methods
structured around the two-stage approach to
rights adjudication (definition first, limitation second)
and a multi-part proportionality test to ascertain the
degree of deference that courts exhibit in reasoning
about rights. The findings reveal what factors
affected the degree of judicial deference and how
courts exercised deference. These findings furnish
an empirical basis for testing various assumptions
about the courts’ deferential behaviour. Although the
study focuses on Hong Kong, its methods of analysis
are (within limits) transposable to other jurisdictions,
and its findings will make for interesting comparisons
with judicial attitudes in the UK, Canada and
ECHR – jurisdictions that inspired Hong Kong courts’
approaches to deference.
Fabiana Di Porto and Nicoletta Rangone: Proportionality
of Regulation: What Role for Cognitive
Sciences
The paper addresses the question of what hampers
many regulators from using cognitive sciences’
insights in rule-making, dealing specifically with the
critique that it expands the length and costs of regulatory
procedures excessively. Quite to the contrary, we
contend that cognitive sciences may help to enhance
the proportionality of regulation.
Eduardo Ribeiro Moreira: People’s participation
in the constitution amendment process
An almost forgotten point, though it has been studied
by nations that do not share the same theoretical
referential, is precisely the people’s participation in
the process of constitutional reform. The issue is not
new, nevertheless, the arrays of countries that adopt
those practices have different goals: such as the treaty
of Lisbon for Europe, the Constitutions of Bolivia and
Venezuela, Spain or Ireland. This paper examines the
different results in each experience. We will examine
the protection of all forms of direct political participation
that cannot be abolished, which includes referendums,
plebiscites, and popular initiatives to propose
bills and any other form of manifestation of the people
constitutionally foreseen that, cannot be withdrawn
from the constitution. One of the solutions lies in popular
support with the possibility of a regular constitution
reform by people’s initiative.
Concurring panels 58