This chapter describes the application of the principle of proportionality in the case law of the Constitutional Court of Ecuador in a context that is highly favorable to its use, given the presence in the Constitution of 2008 of an amplified rights catalog, the reception of international human rights instruments into the constitutional block, and the explicit authority granted to the Court to resort to proportionality analysis to solve tensions and conflicts between rights. On the basis of decisions produced between 2008 and 2019, the authors show that the Constitutional Court has applied the method with different goals in mind and with regards an ample variety of subject matters covering civil and political rights but also economic, social, cultural and environmental rights. While the authors point out that the method has received inadequate uses, case law analysis also shows that it has been used to protect traditionally discriminated–against social groups, displaying a transformative potential.

This chapter explores the emergence (not always explicit), the uses and the misuses of proportionality analysis during a crucial period of Peruvian democracy: the transition of the 2000s, following the collapse of the Fujimori regime. The history of the principle of proportionality in Peru is associated to the development of judicial review and the expansion of constitutionalism. Its increasing presence in judicial reasoning reveals progress in terms of the effectiveness of constitutional rights and the defense of democratic institutions, but also an alarming trend toward its formalistic use. Since the Constitutional Tribunal has been the main actor behind this process, the chapter mainly focuses on its decisions, but some decisions by the Supreme Court and by administrative courts are also covered, given its recurrent use by the judiciary at large and its role in decentralized judicial review, especially in the context of ordinary criminal procedures where the legality of pretrial detention is examined.

The chapter tries to establish a systematic framework which allows us to structure the examination of human rights cases by indicating the necessary legal components and putting these elements in their proper place and in context to each other. Substantive human rights guarantees as, e.g., enshrined in the International Covenant on Civil and Political Rights or the European Convention, cannot be fully understood without taking account of their explicit or implicit limitations; only together do they form the basis for their successful invocation. Therefore the legal limits of and restrictions to human rights as well as the limitations drawn to the use of restrictions, as particularly the principle of proportionality, are discussed. Primacy of freedom, (strict) interpretation, balancing of rights, absolute rights, margin of appreciation and derogation from human rights are other issues that have to be dealt with in the given context.

This chapter examines how foreign legal doctrine has affected constitutional judicial review in cases involving freedom of expression in Japan. Academics have studied free speech in the context of comparative law because the current constitutional law in Japan, enacted under the instruction of General Headquarters by United States, and the former Meiji Constitution were both influenced by the German Constitution. In the early years of the current Constitution, the Japanese Supreme Court took a ‘public interest’ approach, absent any constitutional standard. Some have proposed a change to this situation, recommending the introduction of a US-style constitutional standard. However, the Supreme Court has not taken that standard to heart. On the commencement of a new law school system in Japan, other scholars advocated the German ‘proportionality’ principle because they thought that it better suited to Japanese case law. However, detailed examination of that case law suggests that the Supreme Court took neither approach. In this chapter, the author seeks to reveal the true nature of the doctrine employed in the constitutional cases and to explore the issue of hate speech from the perspective of this controversy over free speech.