 up at 15 minutes okay so you don't speak too long because our other speakers have have to get on to do the other things oh and I forgot to mention I'm particularly grateful to David Bilschitz for speaking to us today because he has a deadline today he's submitting a manuscript for a book today so he took out time to his from his schedule today to to to speak to us despite the fact that he has to finish his manuscript today so thanks David for that so I'll pass on to Professor Khaled please go ahead those yours thank you it's a man idea be a a fuzz 440 jay I asked you about 10 lee wujud have a fuzzle the chelal man's own on a a wadokul had a fuzzle lil man's own on a tonicia a lady a sub hat that will you own on a man or if I It is one of the most important laws in the world. Today, this principle is one of the most important laws in the world. It is one of the most important laws in the world. This principle started in Switzerland since the 40s. This principle was introduced in Germany since the 50s. This principle came from Germany to the national courts in the world and to the international courts. This principle was used by the European courts for human rights and the US courts for human rights. This principle was used by the Canadian courts for human rights and the US courts for human rights and the US courts for human rights. This principle is one of the most important laws in the world. In Thurmus, this principle was used to defend the civil society. In Thurmus, this principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle was used to defend the civil society. This principle must never be forgot. When we see the revolution that took place in it, the field of rights and freedoms, and the revolution of rights and freedoms that lasted for a while, we must be aware of the necessity of the light coming forth in this field. And there are some of the present, what is a constitution in this matter, a principle, a principle that does not reflect it. What does this principle also include? The 40% of the population. This is the theory that represents the characteristics of the 40% of the population. The population is at its peak. The population is at its peak. If it may not be the essence of the true essence, which is a condition of the 40% of the population, the real essence, and it is a condition of the 40% of the population, with the definition of the rights and freedoms, we must not be afraid of the essence of it. The theory of understanding the essence of the essence of its non-existent, and the essence of the essence, in itself, there are suggestions, books about the essence of the essence, about the substance of the right, in the case of the right, a whole piece of paper, a whole piece of paper about the issue. In the case of this theory, it is possible that it is impossible for the messenger to be in the corner of the truth in the face of his own behavior according to a certain theory. What is behavior? It is the relationship with his saying. from the desire of this challenge to achieve this goal so that it is permissible What does it mean to be appropriate? The appropriate in a second phase is the necessity of the right meaning of the word What is the necessity of the right meaning of the word? It is that the leader is the least qualified for the rights and freedoms in order to achieve the rights and freedoms in a private way in a private way What is the responsibility at the end of the meeting? So the necessity of the right meaning and the responsibility What is the responsibility? It is what is also called in the Canadian Council the responsibility of the rights of the rights of the rights of the rights This is the content of chapter 40 which the organization focused on and worked on How did the chapter 40 apply? And what is the change that happened? A change happened Let's say there is a change between the two categories in chapter 40 because this understanding was not possible to have other concepts for chapter 40 but there is also a change in the level of reading chapter 40 and its application There are scientific readings which achieved this At least there are ten trials There are eight evidences Eight evidences about chapter 40 There is a book Abdul Fakiri to his Lord about chapter 40 And there is also a book on the way It is a book by the teacher Kouser Dabbash about chapter 40 and the freedom of the individual So, as the teacher said two days ago there is a book for chapter 40 And this scientific reading is necessary because it will pass through the trial From the trial it will pass through the trial From this scientific understanding which is only a recommendation as you know even at the scientific level All scientific concepts are recommendations for interpretation From these recommendations Let me say that the trial can be accepted These recommendations are two things because after you know the beginning of the matter after you know the beginning of the matter notice that there are applications for chapter 40 at the level of the trial I will try to reach these applications I will say that sometimes there are readings for chapter 40 sometimes the trial from where it is necessary to apply the chapter 40 it is not applied it is a recitation or a recitation with a knowledge of a knowledge that is available from chapter 40 Let it be There are sometimes wrong applications We all know this famous decision for this time to collect on the rules which was completely wrong in the chapter 40 There are non-concentrated applications sometimes they are applied to the trial but it is good The trial, especially the administrative is applied with a sign to the chapter 40 and when it reaches chapter 40 and does not receive any examination from the examination of the recitation which is promised in its recitation only the judges in the world and there is also let's say good applications for chapter 40 lately for a few days it has made a decision to apply about the administrative court in Cairo in the history of 26 May 2021 the judge, the head of the administrative court in Cairo to what? to apply the chapter 40 and to the recitation of the recitation to the recitation of the recitation and to the strict rules that are available which are necessary for the recitation of a different kind so we have reached in the last sentence we have reached in the chapter 40 and we have started to write the chapter 40 once the chapter 40 is from the recitation and it is today in the recitation of the recitation and we wish to apply it with all these with all these the strict rules that apply to it in the German recitation or in the Canadian recitation or in the South African recitation or in the Swiss recitation or in other parts of the recitation then we wish to apply this chapter from the recitation to the culture of the Tunisian people to the culture of the Tunisian administration to the culture of the Tunisian strict rules and this is what I think a field of new work in this project that made me proud that I was part and part of his side Thank you Thank you, Mr. Khaled for this valuable introduction and thank you for your time, Mr. Khaled I'm going to pass on to Professor Grimm as you know that Professor Grimm will speak English so you need a translation in front of you to translate if you had any difficulty if you didn't hear the Arabic translation just give me a sign raise your hand I'm sorry there's someone coming and we'll meet you in the machine don't hesitate to go back I'm going to pass on to Professor Grimm Professor Grimm, I haven't figured out exactly how I'm going to warn you about time but if you could try to speak to for 20 minutes I'll be very grateful once again Professor Grimm is a former member of the Constitutional Court in Germany is a professor of public law and is a fellow at the Berlin Institute of Advanced Studies and I should also have mentioned as well that Professor Grimm has been to Tunisia and has participated in sessions dialogue sessions about proportionality in Article 49 here in Tunisia as well with colleagues from the temporary the interim Constitutional Court so without further ado I'll pass on to Professor Grimm Professor Grimm, you have 20 minutes thank you thank you very much Mr. Ali for me as a foreign observer Article 49 of the Tunisian Constitution is a very interesting but also a quite difficult provision the reason of the difficulties to me seems to be that this article borrows quite a number of elements from foreign constitutions and foreign bills of rights and the relationship between these various elements is not clear from the outset so before turning to proportionality I would like to take a look to the ensemble of these elements in order to determine as far as I can see it the proper role of proportionality within this article I distinguish the five elements element number one limitations of fundamental rights have to be established by law number two no limitation may affect the very essence of the fundamental right number three the reasons for limitations have to be necessary in a civil and democratic state number four a number of goals that allow limitations are enumerated and number five finally is proportionality the first element a law is needed in order to limit fundamental rights is common to all constitutions in liberal democracies and I think there is only one question for me does any law suffice to fulfill the requirements are only laws that are compatible with the constitution so are also pre-constitutional laws sufficient to fulfill this requirement I asked that question because this was a big problem in Germany with the German constitutions of the 19th century there were also laws required for limitations of fundamental rights but any law from the pre-constitutional era was sufficient and institutions were rather irrelevant the second element the very essence may not be negatively affected by a limitation these features very strongly in the German constitution the basic law the difficulty consists in my view in that it is extremely burdensome to define what essence means now in Germany the principle suitability is is the law that limits the fundamental right at all able at all suitable to reach its end if it is not even suitable to reach its end then this cannot be a legitimate limitation of a fundamental right but I have to say that in cases where laws fail because of the this step, the suitability step are at least in German jurisprudence extremely rare I could mention more than one or two cases at all but this is different with step number three the necessity clause this necessity the law that limits the fundamental right must be necessary in order to reach the end of the law this necessity in my view differs from the necessity in element number three in element number three reasons are required for limitations so in a civil and democratic state here we have we deal within the proportionality principle we deal with the means and relationship limitations of law must be necessary to reach the end of the law not the reasons must be necessary this is step number three but the measures that the law takes have to be necessary in other words if the purpose can be reached by a less intrusive means then the law is unconstitutional the legislature must employ with less these intrusive means question of quite big practical importance is how does the court know that there are alternative means and what does it mean how does one know that there are milder, less intrusive means usually in a law suit constitutional law suit the party that challenges a law will name alternative means that this party regards as less intrusive and the government will try to demonstrate that the means that they employed that the means that the checking party mentions are less effective so the court has already alternatives and the court has already arguments in order to decide this question of necessity but if that is not sufficient the court at least in Germany would invite expert knowledge in order to inform itself about the availability of alternative means and the question of necessity and now the last step of the proportionality principle proportionality in the strict sense this is the balancing stage the balancing stage is the most difficult stage and also the most contested stage of the whole measure of the whole business of proportionality this is why still now the united states are one country the most important country that stays away from applying the proportionality principle because they are the opinion prevails that this is no longer legal operation this is in the eyes of the american scholars and especially also the american courts this is just simply politics and no longer law i don't agree i think it is still law but it is still a legal operation if it is done correctly and very often it is not done correctly and here is a big danger that judges introduce either subjective preferences or they introduce policy argument which are not arguments available to judges but judges you work with legal arguments so i think it is extremely important to exercise this last step the balancing step with utmost care utmost care means especially utmost care when filling the two scales how to fill the two scales of the balance in scale number one one puts the fundamental right that is limited by law in scale number two the goal of the law that restricts the fundamental right is put the next step will be to ascertain the loss for the fundamental right that is limited and to ascertain the gain for the goal of the law that limits the fundamental right and here mistakes are very likely i would like to explain it by using an example example that played a big role in legislation in the last twenty years let's assume that the legislature adopts a law in the cause of the fight against terrorism and let's assume that this law inter allows the interception of telephone conversations and of email communication in order to collect informations on potential terrorist attacks it would be a mistake to put into one scale the value of liberty and to put into the other scale the value of security this is the background problem but this is not the problem that the case at hand this specific law presents the case is whether this law uh... is uh... constitutional or not and so uh... the controversy of liberty versus security is not helpful applying the proportionality uh... test uh... another mistake would be uh... to uh... now uh... compare uh... the two values that are in the place to compare the fundamental right of secrecy of telecommunication versus uh... the value of preventing terrorist attacks and behind the prevention of terrorist attacks of course also fundamental rights right of life of people who may be affected by the terrorist privacy property that may be affected why is it not correct to compare these two values because this is not what the law the law doesn't affect the values as such uh... the uh... uh... the law does not abolish the fundamental right of secrecy of telecommunications but it limits it in a certain and specific way and this limitation has to be defined as precisely as possible and the law does not prevent terrorism but it gives the secret services a chance to learn about terrorist plans and this also has to be defined as precisely as possible precisely what loses the fundamental right by the law that limits it does the value in whose interest the law the fundamental right is limited what does this uh... game and only if this is done as precisely as uh... possible uh... then one can hope to conduct the proportionality test in a legal way and not in a political way an additional question that has to be asked is does the limitation affect the core of the fundamental right then of course you have to apply the principle more strictly or does it affect only the periphery uh... of the right and then the question is on the other side how likely is it that the limitation of the fundamental right will really lead uh... to uh... a relevant information for the secret services at the state and if this is done and again if this is done as precisely as possible then balancing is feasible and balancing remains in the realm of law and is not uh... politics uh... two last remarks uh... if one in this long list of requirements for a law that limits the fundamental right to be constitutional if one requirement is not met the law is unconstitutional and there is no necessity to continue with the other items of article forty nine when you were uh... when uh... one of the prior elements are not met by the law then the rest can be forgotten and just because it was mentioned in the previous talk in germany we applied the proportionality principle twice we applied to see whether the law is constitutional or not and we applied in a second step to see whether the application of the law the concrete governmental or administrative act is compatible with the principle of proportionality so far my remarks uh... and i hope they are helpful for the interpretation of article forty nine hello yes okay okay thank you very much professor grim for that that was really terrific thanks you also for keeping to time uh... what i'll do now without further ado is i'll pass on to uh... micah uh... is leading uh... authority on uh... human rights law internationally is currently a fellow at redding university in the u k is the former secretary general of the international association of constitutional law is uh... working uh... uh... strenuously to finish his uh... manuscript today so thanks once again david for taking time to speak uh... to speak today and i should also mention that david has also been to tunisia if i'm not wrong uh... david visited tunisia in two thousand thirteen and participated in a uh... joint session that we organized international idea organized with u n dp and the constitution assembly and david actually delivered if i'm not mistaken a presentation on proportionality on that occasion if i'm not wrong so uh... i'll pass on to david david you have twenty minutes please go ahead thank you thank you very much today and thank you very much for the invitation and i remember in fact very well my time in tunisia a very exciting time with the uh... constitution about to be passed and i must say i was delighted to hear that uh... article forty nine was included uh... i hope you can see my i just want to see if my presentation actually moves uh... yeah is it moving down yes yes it's fine yeah go ahead okay thank you very much uh... so that uh... it uh... i'm gonna knowing a little bit on the particular aspect of proportionality of just to start off with an introduction uh... fundamental rights has a starting point either high level of importance normally important and that's the reason they're enshrined in bills of rights and governance but as we know they are not absolute and they can be wrong for objectives of a sufficient level of importance. And what we're dealing with here today is whether such a limit is legal way and to prevent it from being left simply to discretion. So there is a remarkable level of convergence as we've heard from both Professor Khaled and Professor Grimm across countries and their general approach to limiting rights, being focusing on the proportionality test and the courts essentially weigh up the importance and objective of the infringing measure against the harm to cause to rights. And one of the key benefits of proportionality is that it is a structured reasoning process. Right, and I won't go through this in detail because Professor Grimm has done that, but the first step is really to find an infringement of a right. And it's very important that that step be conducted properly because one has to actually understand what aspect of rights is infringed and essentially this essentially enshrines a presumption in favor of rights that rights should not be infringed. And the second step then is really can the infringement be justified? One has to then ascertain a purpose which is the key countervailing normative consideration and then consider the relationship between means and ends. And you've heard about the suitability test, necessity and balancing. And today I'm gonna focus on that specific aspect which I regard as one of the most crucial aspects of the proportionality test, the necessity inquiry, that it must impair the right as little as possible when achieving the objective. And that issue is something that has bedibbled courts of it and is actually pretty complex. And I'm gonna try and break down some of that complexity for you and actually suggest to you that we need to sadly but perhaps helpful analytically break down the components of the necessity test more precisely. Now, Professor Grim has taken you through to Nizia and necessity. And as he pointed out, necessity comes up in two places. Reasons must be necessary to achieve a closed list of objectives. And they are part of the proportionality test themselves. And I'm going to consider the necessity as part of the proportionality inquiry. I think Professor Grim is a very interesting way of perhaps distinguishing them but I think that is obviously an interesting issue for academics to grapple with. Is there some difference there in relation to the word necessity? So what are we going to do today? I'm gonna look at why necessity is important then I'm gonna set out what's called a strict interpretation of necessity. And that causes many problems for courts and leads them to adopt various avoidance strategies to mitigate the consequences of that strict interpretation. And I'm gonna then suggest to you that a more reasonable interpretation is what we should call a moderate interpretation of a necessity. And that has four elements which I break down and I'll tell you about them. And ultimately the point here is to recognize necessity as a critical element of proportionality but to sharpen our understanding of what it means so that it is in fact useful and helpful to protect fundamental rights. And in doing so I want you to keep in mind an example which funnily enough overlaps with the one that Professor Grim gave you but I'm basing it in a South African constitutional court case. And that case is called Amabungani Center for Investigative Journalism and it dealt with the issue of surveillance of data, bulk surveillance of data for security purposes. And we will focus our attention in keeping in mind what I'm saying because it can get a little complex in the details. We're gonna focus on the issue of how long is it necessary for the state to keep intercepted data of private communication. So assuming there's a legitimate interest of the state in intercepting data, how long should it keep the data or archive the data and we'll consider alternatives of three years or six years, you can substitute it in but I wanna just use that as an example to make it clear in your minds what I'm talking about. Okay, I'm just gonna switch off because my interpretation device is giving me feedback so I'm just gonna switch that off at the moment so that I'm not getting feedback while I'm presenting. Okay, good. So what the strict interpretation of necessity? So the way in which the necessity test is formulated by courts, right, is often as follows. The German constitutional court says the following, a statute that violates rights is necessary if the legislature could not have chosen a different means which would have been equally effective but which would have infringed on fundamental rights to a lesser extent or not at all. Okay, and the Canadian Supreme Court says the following, the means should impair as little as possible the right in question. Okay, so you hear little as possible least restrictive. Okay, these are now bear these in mind because they're gonna play an important role in what we talk about. So firstly, what is the point of necessity? Right, well in my view, it forces a consideration of alternatives to what the government measure is and it ensures that even if the government has a worthy objective, right, rights are not impacted upon more than is necessary. Okay, now to make it meaningful, we need to ensure we have a proper understanding of the test itself and the strict interpretation raises two complex problems. What do we mean by equally effective? What does it mean to say an objective is achieved equally by two alternatives? And when is the right impaired as little as possible? Right, when is it impaired as little as possible? Okay, and the problem with the strict formulation of necessity that you heard in these two judgments, the least restrictive means equally effective is that it can be too difficult or too easy to meet. Well, let me explain a little bit more. Why too difficult? Well, you can always, judges can always potentially come up with an alternative, right, so that the government's measure will not pass the test, okay? So think about the government has six years and the court says three years and then you have three years and you can introduce it to two years, right? And Blackman from America said the following, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation and thereby enable himself to vote to strike legislation down. Okay, so the problem here is that one can relatively easily come up with an alternative, okay? That could achieve the objective, we'll talk about that, but have a lesser impact on the right and then that gives judges the power to keep striking down the law. The law can never pass the test. The second problem is that the law may always pass the test, it's too easy to pass. Why? Because it's also often difficult to ascertain that measures are equally effective, okay? To achieve legislation, the objective of the legislation, okay? How do you term it equally effectiveness? And this of course requires you to construct the purpose in a certain way, but it's relatively easy for legislature to say, well, our measure is much closer to achieving the objective than the alternative, okay? We need six years because we won't be able to fight crime as much, we won't be able to fight terrorism as much if we will reduce it to three years, okay? That's the kind of reasoning over here. So we have these problems in the formulation of the necessity test and they lead to various issues, right? One is relates to the separation of powers, required. And here we have the traditional concerns of competence and of deference, right? The German constitutional court adopts a strict test but says courts have a limited power to review the legislative judgment that a measure is indeed necessary. So the shift focuses from what must be determined to who should be deciding whether the necessity test is met, okay? And the result is that this reduces the force of necessity and widens the discretion of the legislature which isn't a good thing for the protection of fundamental rights. It ultimately leads to abdicating limited or not. Either a limitation is necessary or not. It makes no sense to state necessity as a requirement but defer judgment to the very body whose measures are being tested, okay? Proportionality is a reasoning process designed to means that the point of the test is partly lost. Deference also reduces plea into the question of necessity and when should they defer to the legislature, okay? Or the executive in some jurisdictions, okay? So Jay Chowdry says that Canadian courts have struggled to articulate an adequate basis for according deference in some cases but not in others. And without clear criteria, necessity loses its force. So ironically, we can develop a strict standard of necessity but then it's applied with a high level of deference which leads to very limited or second strategy often adopted is it relates to a lack of evidence. The strict interpretation suggests that the evidence is required to show that a measure is necessary, right? Otherwise, if you don't have evidence to show it then, you know, then the test is not very meaningful but Chowdry again says that public policy is often based on approximations and extrapolations from available evidence inferences and comparative data and even educated guesses. So government may not be able to justify necessity to the high degree of certainty that it is the least restrictive means, right? And so one way to deal with this is that judges place the burden of proof on the applicant that one who challenges the statute and the statute is presumed to be constitutional. The presumption attempts to lessen the impact of the strict standard and address separation of powers concerns, right? That's one approach that some judges have adopted but this is a real problem because it abdicates the responsibility of the courts to reason through the elements of necessity and only to do so if the presumption is discharged. Rights should enjoy a presumption against limitation rather than one in favor of limitation, right? It puts the thing the wrong way around and this flows from the very nature of rights as having strong importance. So any presumption of constitutionality doesn't make sense against the background if we understand what fundamental rights are and it weakens those rights too significantly. I hope I've provided you with some reasons why the strict interpretation of necessity focused on the least restrictive means is actually problematic and it leads courts to adopt various forms of avoidance strategy. So we need in some way to reduce the risk that necessity will be avoided, okay? In a way that runs the risk of weakening the protection for rights. And the question then is how then should necessity be approached, okay? We saw that setting the standard too high and it often leads to analytical vagueness as well. And we need to outline what I've suggested is a moderate interpretation of necessity. Now, I'm not gonna go into, some of you will know the work of Robert Alexi who famously in a sense systematized the thinking behind proportionality in his book, A Theory of Constitutional Rights. And I'm not gonna go through the critique of him here but let me say the problem lies in conceiving of rights as what he calls optimization requirements, norms that must be realized to the greatest extent possible. Optimization works for economic goods but is vague and problematic in legal and moral matters. And in when laying down the various aspects of necessity, I hope I will convince you of that point, right? And that requires a revision of his theory in some ways, okay? But I want to, for more importantly, for your purposes to actually engage a little bit more with the four components. So the first component is what I call possibility. A measure is only necessary if there is no possible alternative that will equally realize the objective whilst having a lesser impact on the right. And the question then arises, what is included in all possible alternatives, okay? Well, clearly some understandings of possibility are too wide, logical, physical possibility, and that would leave too little room for limiting rights. We can always conceive of a logical possibility that would be least restrictive. What about something like practical feasibility? Well, that also has an uncertain scope, right? Economic scarcity is something we need to think about, political sensitivity, but it runs the risk of being too weak, right? You could always say, well, this is not politically possible. We won't protect the rights of this group because it's politically too sensitive, right? That's not gonna protect rights enough. Possibility importantly here has significant variability and it entails normative and substantive reasoning. We have to think about what we regard as possible. And if the test is to have backed, courts cannot simply defer this, right? And as Professor Grimmer suggested, the idea is in a way that the party should place the leading alternatives before the court. You, in a sense, place an onus on the parties to lay out which possibilities they want to be considered. Okay, because otherwise it becomes a bit unmanageable. But nevertheless, one needs to think very carefully about this question of what alternatives are there. The second stage is what we can call instrumentality. Courts must look at the relationship between different means and aims to be achieved. And we heard the strict interpretation, the optimization interpretation, is that they must be equally effective. But this leads to the problems, right? The German constitutional court characterizes the purpose so that an alternative means will, in a sense, never be equally effective. And often the test loses its bite in Germany because of that. The Canadian Supreme Court reformulates the test, okay? And it asks where the alternative means will achieve the objective in a real and substantial manner. And I want to suggest to you that if we want to make sense of this test, the Canadian approach makes much more sense than the German approach. The Canadian approach is more realistic and it makes more sense of the test, right? And so courts exercising discretion must consider whether the feasible alternatives realize the objective in a substantial or sufficient manner. Equally effective is just an impossible standard to meet and basically renders the test OTOs. Impact, what is the impact of differing measures on fundamental rights? Well, this involves a qualitative normative judgment by courts, often without clear precision. And the problem is that courts often do not demonstrate a willingness to engage with the content of rights and the degrees of impairment. So it's very critical that we think carefully about what rights are implicated, what are the interests at stake, to what degree are being impaired. These need to be in play in order to engage properly with the necessity inquiry. And as I say, to improve reasoning, courts need to think through those things carefully. Okay, that's true of the whole proportionality inquiry, by the way. And the last stage is what we can call comparativity. Necessity involves a comparative judgment. Is the measure the least restrictive of the feasible alternatives? And this requires an evaluation of whether an alternative measure exists that sufficiently realized the objective whilst having a lesser impact on the right. We actually move from least to lesser, okay? And to understand this, we need to understand that there are two axes of this comparative exercise of what alternative is best. The manner of realizing the objective, what I call M to O, okay? And the impact on the right, which we can call R. And the judgment involved in necessity is whether there is an alternative that has a lesser impact on a right but still achieves the objective in a real and substantial manner. So there is a comparative exercise here that importantly, in the necessity level involves a degree of balancing in a restricted level of balancing, but actually there's a degree of balancing in necessity itself, okay? So I've put a formulaic way of thinking about this. It might be a bit too complicated to go through now. So I'm gonna do it, I'm gonna explain to you how I think about it through an example. And we'll return to that case, Kama Bungani, which deals with data surveillance of mass data by the intelligence agencies, right? Looking through people's mobile phones or their emails, et cetera. And the question at stake was, how long can the state keep intercepted data of private communications? And we consider three years or six years. Well, what's the objective? The objective served by storing surveillance data is to assist with ongoing investigations into serious crime and national security threats, clearly a legitimate objective. What is the impact on rights? Well, the longer the communications data is retained, the more invasive the infringement on privacy and the potential for abuse of the data, okay? So governments can get up to all terrible things the longer it is kept, right? So the shorter period, the lesser invasion and privacy, okay? Now, alternative measures may both realize the objective in a substantive manner, but do it in a slightly better way than others, okay? So when is that offset by the lesser infringement on rights? So six years might obtain the objective in a better way, right? The governments can say three years just doesn't achieve it. We won't have the data to protect crime for as long as we need. Crime doesn't only occur in a short period of time, okay? But it has a lesser effect on the right. And when is that offset by the lesser infringement on the right, okay? So less time for data storage, three years, has less efficiency to achieve the objective, but there's a greater gain to the right to privacy. More time, six years, retrieves a greater efficiency for the objective but has a harsher impact on rights. And in this stage, we need to balance the effect on the objective versus the lesser impact on the right. This comparative exercise demonstrates that a limited level of balancing becomes a component of necessity. Now, you might ask me, and this is a complex question, what's then the relationship between the necessity and the balancing stages, okay? Does this mean that the third stage of proportionality is not important, okay? And Professor Grimmer's laid out quite effectively what he thinks goes into that and the legal side, trying to make it not a purely political query. But necessity ultimately doesn't answer the normative question of whether the benefits of the measure in the concrete circumstances as Professor Grimmer's laid out outweighs the cost to rights, right? Necessity doesn't answer that normative question. And in my view, that is the question for the third level. So in the case I gave you, even if we decide that three years meets the necessity test, right? Rather than six years for keeping the data, one must still evaluate whether the benefits to security of keeping that data outweighs the harms to privacy of doing so, okay? And that is a normative judgment that you have to make at the third stage, okay? So the moderate interpretation of necessity involves four components, right? The strict also involves these four components, but it interprets them in a much stricter way, right? All feasible alternatives need to be considered with the court being explicit about their criteria of feasibility. Secondly, the relationship between the measure and consideration, the alternatives identified and the objective sought to be achieved needs to be captured. And as I've suggested to you, the alternatives must substantially or sufficiently realize the objective, not equally. Differing impact of measures on fundamental rights must be assessed. And finally, there must be an overall comparison between the measure and alternatives and whether the government measure is best in relation to the two axes, objective and right, okay? Which I suggested to you were the two axes. Now, just to suggest to you that this might sound to some extent theoretical as an attempt to bring down some of these ideas, but it actually has been adopted. My view, I was very happy to find, had been adopted in the Indian Supreme Court when they were faced by similar challenge on privacy in relation to a national biometric identification scheme called the ARDHAR program. And the Supreme Court there actually brings proportionality into India. This is very recent, by the way, so it's very relevant to Tunisia in the last five years. And they needed to consider how to capture the necessity test. And they drew on my work on this. And as I've mentioned to you, we have a limited period. I know I'm almost straining that period now because it is complex, but you can read my piece, which I'm sure can be also circulated called Necessity and Proportionality in a book called Reasoning Rights, which will allow you to go through it in more detail. And the adoption of the necessity test concerned the court had to consider whether the government had discharged its evidentiary burden to show this national identity card was the least restrictive effect on privacy. And they adopted a more moderate interpretation of necessity, saying that the strict interpretation would make the test meaningless. And ultimately, they held that certain aspects of the card were constitutional, whilst other more intrusive ones, which were linking the card to bank accounts and mobile phones were not acceptable. So that was kind of acceptable for purposes of people being able to get access to government services and grants, but not for purposes of deeply intruding into our personal sphere. So very interesting case in India and there have been one or two others that have also engaged with this as well. So in conclusion, fundamental rights are not absolute, yet they deserve strong protection. Proportionality is a way of providing a strong justification or a reasoning process for limiting rights. The necessity test is a vital part of proportionality. It requires the evaluation of alternatives and whether an objective can be achieved by less restrictive means. The way in which the necessity test is conducted can tend towards either rendering these rights absolute or offering them too little protection. And what I've suggested to you, and it will be, I know Tunisia is in the process of defining its approach. So it's worth thinking about these things when these matters are captured, that a more moderate interpretation is possible which affords significant protection for rights but also allows for their limitation in suitable circumstances, right? And it's important to recognize that proportionality, necessity doesn't eliminate the need for qualitative judgments. They cannot be eliminated from a determination of necessity, but a clear reasoning process of various stages can help guide the judgments that are made and hopefully also ensure that rights are protected to as great a degree, I hope it was clear enough to understand the core elements of the necessity test and look forward to some engaging in questions. Thank you very much, David, for that presentation. That was really terrific. I'm very, very happy with the way in which this, very much like to see in some time in the future is for discussions and comparative discussions about proportionality around the world to also include discussion about Tunisian cases and developments in Tunisia, about the court decisions and the theoretical and scholarly developments here in Tunisia. I mean, obviously there's a slight language barrier because most of the work that's done here in Tunisia is in Arabic and to a lesser extent in French, but hopefully we'll be able to bridge that gap sometime in the near future. So I'd like to, we have around a half an hour for discussion, so if anyone would like to ask a question or make a comment, please let me know. Just open, raise your hand. We have an intervention right now. Can you reach the microphone here for the teacher? Oh, there it is, okay. Do you work here? I work here, yes, yes. Okay, so if you could just offer yourself a piece of advice if you have an idea and you can go to the teacher. Thank you. Good morning, everyone. I'm the head of the Ministry of Justice at the Ministry of Justice. I would like to point out that the Ministry of Justice is only applying the responsibility to limit freedom rights. It is only applying the freedom rights in the constitution. The Ministry of Justice, which he said, violates the right to freedom rights in this constitution. Unless there is another legal object that we have to stand for, we can't get out of the narrowing of freedom rights. Right. Right. Okay. Thank you. Thank you. Thank you. Thank you. Thank you. There was a second question, therefore, for Professor Grimm. So the question, Professor Grimm, just in case it's helpful, was about the wording in Article 49. I don't know, of course, but the Tunisian constitution maker had in mind when they formulated acceptable or compatible with the civic and democratic state. But if I try to make sense of that formulation, I would probably say entitled, but the government is bound, and so I find it reasonable to speak of a civic and democratic state, and I don't think that exchanging the term state for society would bring any improvement. Thanks, Professor Grimm. I don't know, David, if you want to contribute to that question as well. If so, just let me know. Otherwise, I'm going to pass on. So Professor Salwa is going to ask another question. So the mumkin qalimi nafsak kumumnoon. Salwa Hamarouni usta alim alif al qanoun al-amua. Al-Хabira al-мoshf, al-al Al-Adallah. I'll just ask Professor Grimm and maybe an update on what's said about Shahreddin's constitution, or the rights that are aimed at article 49. I'll just add the article 21, my dear friend. It says, Can I ask the question in French? There is a translation, so yes. My question is about the German law and the jurisprudence of the German Constitutional Court about the article 18 of the Fundamental Law. Why do I ask the question? Because it's an article that decides the disappearance of fundamental rights when there is an abuse of freedom of expression, opinions, freedom of the press, freedom of meetings, associations, and so on. So, the abuse to fight the constitutional, liberal and democratic order. When there is an abuse in this sense, the person is deprived of these fundamental rights and the disappearance is pronounced by the Constitutional Court. What seems to me to be very, very interesting, but also very heavy consequences in terms of rights and freedoms because we are talking about disillusionment and we are not talking about the limitation of rights. We are talking about disillusionment of rights. So, here is my question for the German law. Thank you. Thank you very much. Professor Grimm, go ahead. Can I answer directly? First of all, article 18 of the German Constitution has never been used. We have no court decision and we have no application. I think there were a few applications, but they didn't reach the stage of decision-making. So, my answer can only be a hypothetical one whether the proportionality test would apply in case of article 18. But I can try to answer your question by using the next, a different article. There is not only in the German Constitution the possibility to deprive certain persons from their rights when they abuse them in order to overthrow the democratic government, but we also have the possibility to ban political parties when they attempt to overthrow the democratic system. This norm has been applied several times, not very often, but several times. The original interpretation was that the proportionality principle does not apply. It is sufficient that you can prove that there is an attempt by a political party to overthrow the democratic government. But in the most recent example, that was a case on a required ban on the national democratic extreme right-wing, we will apply the proportionality test and will not only ask that this party try to overthrow the democratic system, but is there a real chance that they will do it? And if the chance is minimal, then it would be not necessary step number three of the proportionality test to prohibit the party. So this extreme right-wing party was declared to have unconstitutional goals, namely to overthrow the government, but under present situations they don't have the slightest means to be successful with this. And so I could imagine that a case of Article 18 arrives, probably the same test would be applied. But this is a guess. Thanks very much, Professor Grimm. So if it's okay with everyone, I'm going to ask a question. And if anyone would like to ask a question after me, please let me know. So I'm prompted, my question is prompted by something that David said, David Bilted said. So maybe, but I would like to hear what all three speakers think about this. But maybe we could start. What's prompting the question is what you said about evidence. You quoted Chaudhury was getting some feedback. I don't know where it's coming from, but okay. You quoted the Chaudhury on evidence. So when appearing before a court and arguing issues of proportionality, a court might say to a representative of the state, a lawyer arguing on behalf of the state's position that a law is proportional and say, well, what is your evidence that this is actually necessary? What is your evidence? And the quote from Chaudhury that you cite suggests that on many occasions, not much is required in terms of evidence from the government. And that, you know, what I think the term that the Chaudhury uses is on most occasions or on many occasions, the government is just engaging in educated guesses. So my question is whether or not that there's an evolution that's taking place, but what we suspect is someone and so forth, and it's less. And that could therefore be used to analyze and also how the vaccines can be distributed as well. And I suspect that court cases where policies being challenged for vaccine distribution and restrictions of movement are forcing government representatives to speak more specifically about the evidence that exists about how the pandemic is impacting people. I suspect, but I don't really know. It's my question, and once again, David, you could start by speaking to this. It would be really terrific. How much evidence is really required and are things changing with time? Please go ahead. Great. Thank you very much, Zaid. I don't see I'm coming up for some reason the video seems to be weak, but there we go. There we go. So it's a really important question because if the process of proportionality is meant to be a process of justification and if any evidence suffices, then rights are going to be very weakly protected. So we call this the epistemic dimension or the knowledge dimension is actually another aspect of proportionality and Robert Alexi famously comes up what he calls a second law of balancing. And what is the second law of balancing? The more heavily an interference in a constitutional right ways, the greater must be the certainty of its underlying premises. So in other words, the stronger the interference with the rights, the more you need to know more, you need to have stronger grounds, you need to have stronger evidence to ensure that you are doing so on a justifiable basis. And that is very important. It's often not thought about. It's just thought about generally, but what Zaid you've also drawn attention to is that our knowledge will also grow and depend on various circumstances, right? And it might not be reasonable to require a certain amount of evidence in some cases, but actually what proportionality should do is it should make us suspicious about certain kinds of claims. So, for example, it was claimed that not having gay soldiers in armies in Europe will reduce the morale of the soldiers, right? For which there's literally no evidence and it's nonsense, we know, and one should be very suspicious about such kind of claims. And so we need to make sure that the claims relating to proportionality are not based, in this case, for example, on prejudices, right? And that one actually asks for some reasonable basis, but you can't ask for more than is required. So I think that's what Troudry's trying to say is that public policy may not be absolute. It may not be able to get absolute clarity. There's a case in Germany, Professor Grimm, I'm sure, very familiar with about tobacco advertising and ensuring and actually around the world today of requiring tobacco companies to put warnings on the cigarette packets. And at the time, it's quite hard to show social scientifically that that is the best measure that can be done to reduce smoking, right? It's not a very hard thing, but it seems quite reasonable that people seeing horrible pictures will, in all likelihood, have some negative reaction and that it might deter in some sense, not be an absolute barrier, but deter in some sense smoking. So as I say, this is a complex area. I think the key point about evidence is it cannot be on the basis of no evidence. There has to be a reasonable case where, instead, the more intrusive the interference, the greater certainty there must be. Thanks, David. Professor Grimm, could you offer your thoughts about this? I totally agree with what David said. And I would once again repeat what I said that the court, in cases that are very important where knowledge is not directly available or directly convincing to judges that they can invite experts at the German Constitutional Court. The judge's goal is to follow this test and even in comparison cases, the Canadian, the South African and the Swiss, he noticed that most of the time if you don't jump to the table, you jump to the final stage of the test. Generally, because a little bit of the judges in his speech don't understand that there is a possibility between the target and the... So this also applies to the attitude that the powers in China are moving. If they were to continue their choice to one level, and this is what the Canadian court says in a rational range of choices, in a rational range of possible choices, they prepare themselves for the trial. And that's why we say today that there are a thousand reasons for the start of the test. But at the level of application, if you come to the court, whether it's the Canadian court, or the Swiss, or the others, the case where they refuse the measure, they are quite rare. I'm not saying that. I'm just saying that by a test of a piece of paper. The feeling in the court is a matter of... after the trial, after the third stage, or before the trial, before the trial, the judge decides the feeling in the court. And what we know is that the court is the the the the the the the the the the the the in the 3rd stage there are reasons to increase. Thank you. Thank you, Mr. Adil Kareem. I think that's going to be the last question before we wrap up because we're just about out of time. So what I'll do is maybe we can ask the speakers to speak in reverse order and the order in which they spoke. So maybe David, if you could start pass on to Professor Grimm and then we'll pass on to Professor Khaled. And if you could also just offer some closing thoughts while you're speaking as well, that would be terrific. So if there's nothing specific that you want to say in response to the question but offer some closing, please, David, go ahead and then we'll pass on to Professor Grimm and then to Professor Khaled. Please go ahead. Thank you very much, David. Let me also just congratulate International Idea on this conference and taking proportionality and trying to give greater content to it and engage internationally with comparison. In Tunisia, I look forward certainly to comparing and engaging between the South African approach and the Tunisian approach and others in the world. So I'm looking forward to the jurisprudence in Tunisia coming through and for you yourself to develop the test and engage with it in a substantial, meaningful way and protect rights. In relation to the question, let me say, and Professor Grimm will I'm sure address this in Germany, my view is that the essence of the right test requires one to have an understanding of the interests that are protected by the right. So we need to think very carefully about what are the most important interests that are protected by the right and where those interests are totally obliterated, then there will be no possible justification. And actually, it does not matter in some ways whether or not it's done in proportionality or before. Why do I say that? Because proportionality will not allow an utter obliteration of a right, usually, right? Because there are some interferences with the right, which weigh so much that no possible objective could justify interfering with those with that with the right in that way. And so it seems to me that the essence of the right requirement is really meant to capture that idea. It's meant to capture the idea that if you fundamentally obliterate, essentially kill, for example, someone, I mean, survival is obviously the most basic condition of having rights. But if you essentially, if you've got a right to privacy, and you put a camera in every person's room in the home, and you allow a person no space in which to exist with any privacy and the state is surveilling them all the time, that would seem to me to be an obliteration of the right to privacy. And the essence of the right would the idea that you can control some space relating to your own life would be completely taken away. So the essence of the right requires us to think and identify normatively the most urgent, serious interventions of the right, and to say that there will be no possible justification that can succeed in achieving those. And now there are obviously very complex limiting cases of, you know, self defense if we can kill someone in self defense and various things like that. So there will be some cases where you might want to protect one essence against another essence, right? And those will be some some really hard cases. But in general, the rule of thumb, even within proportionality will be that restrictions that are so absolutely onerous will never pass master. So I think that is a good segue into a concluding remark of just to say, I think it's important to recognize that proportionality is not there to do it just for its own sake. It is ultimately there to strengthen the protection of fundamental rights and to ensure that it is justifiable I'm a human rights lawyer fundamental rights lawyer, I think there are cases where it is justifiable to restrict rights, but it must be done very carefully with a proper justification. And a little plug, they talked about my own book. And this is the next stage perhaps in Tunisia. I think this also applies, by the way, in restrictions on rights in the private sector, where businesses and other private sector interfere with the right. But that's a different topic. But it's something I'm writing on at the moment. So something of interest perhaps for a future presentation. Thank you very much for having me and wishing you all the best and all to stay healthy as well over this difficult time. Thanks very much, David. Professor Grimm. I will try to give a pragmatic answer to that question. I think it is extremely difficult to define what the very essence of a right is. But it is much easier to apply the proportionality test. And for me it's hard to imagine that a case that passes the proportionality test can present a violation of the very essence. So my pragmatic answer, although it is not in the line of order how Article 49 is composed, my recommendation would be place it at the very last moment. Ask this question, the last question, and you will probably never find a violation of the essence clause if you have applied the proportionality test properly before. For Germany I would say, and I mentioned it already earlier, more or less the essence clause Article 19 has become obsolete because of the intervention, the earlier intervention of the proportionality principle. But I agree with David there may be some very extreme and extremely rare cases where the essence clause could play a role. So I don't recommend to forget about it. But I think in all normal cases you will come out with a good solution when you apply the proportionality test. And again, thank you for having me with you and all the best to the participants. I remember quite well and with affection my first visit to Tunisia two years ago. Thank you Professor Grimm. I'll pass on now to Professor Khadid who will be the final thoughts. Thank you very much Professor Grimm. and I don't think it's the same. The issue is complicated. In Tunisia, we rely on a new decision. A new decision. A decision to be made in January 2021. A decision to be made in January 2021. It is said that the situation around the truth is taken in a picture. It is necessary because it is not easy. What does this mean? I don't think it's the same. I don't think it's the same. What do you think it means? What do you think it means? What do you think it means? Thank you very much. We will go to the conference. I want to say that we didn't have the opportunity to see you here in Tunisia. But I hope that you will visit Tunisia soon. After we were here and I got the meeting and everything was fine. But I...