detail - Rule of Law Programme Middle East / North Africa
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The effective protection of fundamental rights is considered one of the cornerstones of the concept of “rule of law” and a modern democracy. All rights and guarantees in the Constitution need effective procedures for their protection. Like most constitutions, the Lebanese constitution of May 23, 1926, contains provisions on fundamental and human rights. For example, the preamble, which, according to a decision by the Lebanese Constitutional Council, is an intrinsic part of the Constitution, explicitly refers to the role of Lebanon as a member of the United Nations and the Universal Declaration of Human Rights of 1948. In addition, the second chapter of the first part of the Constitution is devoted to the guarantee of fundamental rights.
Referring to these sources of law, Ms Lara Said first gave an account of the status quo regarding the guarantee of civil and political rights in Lebanon. Following a brief account of all protected fundamental rights, she highlighted in particular the principle of equality under Article 7 of the Lebanese Constitution, as well as the right to life, liberty and personal security, mentioning also examples of shortcomings (e.g., discrimination against women concerning the Lebanese criminal and civil status law, discrimination against foreign workers, etc.).
The second part of the session was devoted to international best practice. Dr Christina Murray, emeritus professor of human rights and constitutional law at the University of Cape Town, emphasized the difficulties in implementing the protection of fundamental and human rights, pointing to deficits in terms of the freedom of expression protected under Article 13 of the Lebanese Constitution. According to this provision, the freedom to express one's opinion orally or in writing, the freedom of the press, the freedom of assembly, and the freedom of association shall be guaranteed within the limits established by law. Experience has shown that it is preferable to insert a defined limitation clause, as provided, for example, in the Tunisian constitution adopted in 2014, instead of referring to terms in the sense of “limits established by law", she says.
Subsequently, the purpose of this clause provided in Article 49 of the Tunisian Constitution was explained by Haykel Ben Mahfoudh, Professor at the Université de Carthage in Tunis and nonresident fellow at the Rafik Hariri Center for the Middle East.
According to this provision, the limitations that can be imposed on the exercise of the rights and freedoms guaranteed by the Tunisian Constitution will be established by law. For any limitations, however, the core or the essence of the respective fundamental right or freedom must not be compromised. Further restrictions may only be introduced for reasons which are necessary for a civil and democratic State and which are intended to protect the rights of others or are based on the requirements of public policy, national defense, public health or morality. A key condition is that such measures must respect the principle of proportionality. The speaker pointed out that the implementation of this general restriction clause will probably not be undisputed in future. He attributes a crucial role to the newly created Tunisian Constitutional Court.
The "Lebanese Constitutional Dialogue" was launched in December last year as a joint project of German political foundations, IDEA and the NGO "Beyond Reform and Development", funded by the German Embassy in Lebanon. The regularly organized meetings serve interested lawyers and younger politicians as a platform to exchange experiences with international experts on issues of the constitutional order. In addition to an analysis of the status quo in Lebanon, reform proposals are to be drafted, aiming for example at strengthening constitutional review procedures in order to improve constitutional control.