3. For a start, where the word appears by itself, I think that an absence of justification in law is a substantial element in the concept of arbitrariness, though it may not be the only element. Where a law confers a discretion, unreasonableness in the exercise of the discretion may constitute "lawful" conduct
'arbitrary". Where "arbitrary" is coupled with "unlaw- ful", then I think that not only is the element of reasonableness a factor in what is or is not arbitrary, but other elements are also relevant. These would include whether or not the lawful authority conferred draconian powers or whether the powers were (lawfully) exercised in a draconian manner; whether the exercise of lawful powers had a legitimate purpose; whether the exercise of lawful powers is proportional to a legitimate aim. To take perhaps a simple example, it would be arbitrary to hand- cuff a little old lady caught for shop-lifting, whereas it would be legitimate to hand-cuff or otherwise confine a bank robber caught in the act.
4.
It follows, that I think that a statute may itself be arbitrary. True, both under the Covenant and under the European Convention, a complainant must allege that he is a victim of a violation and that, in effect, requires a legal provision to have been implemented with regard to him. Nevertheless, if a statute is in such terms that it prohibits a course of conduct which is, prima facie, a legitimate exercise of a right conferred by the Convention, the mere existence of the statute could well be construed as arbitrary. The homosexuality cases under the European Convention illustrate this point. If homosexual acts in private between consenting adults are a legitimate exercise of the right of privacy, then a statute which makes such acts criminally punishable could well be an arbitrary (though it should be borne in mind that the word arbitrary does not appear in the European Convention) intereference with privacy as not being proportional to a legitimate aim in protecting morals as regards those of full age and capacity. However, as I said in my original advice on this point, in interpreting aim and proportionality, one must have regard (as the European Court and Commission have regard) to the margin of appreciation left to states and the exercise of that appreciation in the social climate of the country or region concerned.
of
Paul Fifoot
Legal Advisers K 199
25 April 1988
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