The Possibility of Adopting the Proportionality Test as a Balancing Tool between Development Needs and Individual Rights: A Critical Review in respect of Recent Development Projects in Sri Lanka

Abstract

In 2014, Sri Lanka has closely marked five years since the conclusion of the armed conflict. During the same period, considerable economic and social progress was hindered because Sri Lanka is assertively reshaping its development as a modern economic and industrial hub. Prioritising the vision which is "Emerging Wonder of Asia", it has designed and implemented several mega projects to expand infrastructure facilities. As a welfare State, it is necessary to develop such type of facilities and create a better living environment for its citizens. That is the ultimate responsibility of the government under the social contract created between citizens and the government. Achieving this goal, it has completed several mega development projects such as Colombo- Katunayake Expressway, Southern Expressway and Maththala Airport. Some of are still under completed. However, the adverse impact of this is that physical displacement and alienation of local communities from related process and it leads to violate their human, social and economic rights. This paper advocates for reviewing the possibility of adopting "Proportionality Test" as a balancing tool between development needs and individual rights. In a situation where public interest exists and individual rights are at a risk in the same time the benefit that they gain from this development should be proportionate to violating rights. Proportionality facilitates more intense scrutiny of government decisions compared to other traditional grounds of judicial review. Therefore, this principle of proportionality requires a reasonable relationship between an administrative or legislative objective and particular legislative or administrative means. In this regard, the major function of the administration is that of adopting and implementing effective policies to realize collective goals through programmes of state actions. Inevitably, when the executive does so, the interest of individuals may be adversely affected. In this situation, proportionality would be an effective principle to examine the effectiveness of action taken by the executive and administration ensuring that the executive's interference to the individual's interests is necessary and proportionate. In this backdrop, the objective of the research is to promote applicability of the doctrine of proportionality where the confronting context of individual's rights is at a risk in development projects. Mainly, it is intended to test the hypothesis that the proportionality test can be used as a tool of balancing between development needs and individual interest. In order to prove this hypothesis, the researcher wishes to find out the scope and applicability of the doctrine in Sri Lanka. Effort will also be made to look at the applicability of proportionality as a ground of judicial review in English Law and usefulness of this doctrine in a hypothetical situation. The qualitative approach of analysing the existing literature on the subject has been employed by the author in this paper.