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The Role of the Constitutional Judiciary and the Supreme Courts in Protecting Rights and Freedoms

By: Prof. Badria A. Al-Awadi

The role of the constitutional judiciary and the supreme courts in democratic and legal countries is an essential and decisive role in protecting public and private rights and freedoms from the abuse and deviations of the authority. This role finds its basis not only in universal declarations, national constitutions, laws or customs, but in the conscience, awareness, education and training of judicial practitioners, as well as the regulations, laws and rules of their organizational and professional bodies, in a way that qualifies them to settle various disputes, especially political, constitutional, electoral, partisan and financial disputes, with impartiality, objectivity and efficiency. This does not mean that the personnel of this facility do not commit mistakes nor fall under pressure; these systems contain mechanisms for resolving any defect or encroachment.

Laws in most systems state that final judicial rulings are the ultimate truth and ensure granting these rulings a supposed authority in an effort to spread legal stability and security within societies. However, the actual and real independence of the judicial authority, the efficiency and integrity of judges and the implementation of their judgments are the ultimate sources of legal security and stability, and a guarantee of public and private rights and freedoms, public funds and others. Therefore, a judiciary with such qualities constitutes an authority that guarantees justice, balance and stability, preserves rights and thus contributes to the development of nations.

The role of the judiciary, its personnel and its courts, especially the supreme and constitutional courts, are gaining increasing importance in light of the new challenges posed by modern technologies or those resulting from historic transformations in some societies.

Among the practical applications in this field is the historic ruling of the Supreme Court in the UK(1) issued on January 17, 2017, which ruled the responsibility of the British government and its intelligence services for participating in the torture of a former Libyan opposition leader (A. Belhadj), and his right to try the government. A Supreme Court judge had refused in 2013 to consider the case because, under the doctrines of sovereign immunity and foreign act of state, the UK courts were not permitted to rule on the legality of carried out in coordination with foreign countries for fear of damaging relations with those countries.

However, the Appeal Court, which has examined the plaintiff’s appeal, ruled that the Supreme Court must consider the case, due to the seriousness of the case and its facts. This decision was approved by the Supreme Court and several sessions were held for the reconsideration of the case. These sessions were concluded with the aforementioned ruling. In an effort to avoid trial, the British government and the plaintiff agreed to issue a statement recognizing their responsibility for what has been committed against the plaintiff and his wife, and providing them with financial compensation. On May 10, 2018, the British Prime Minister, Theresa May, presented the government’s apology in a statement before the House of Commons, noting that Abdelhakim Belhadj and his wife Fatima Boudchar were subjected to “horrific treatment”, and that Britain had taken an action that contributed to the arrest of the couple, and that the government had “shared information” about them with “international partners”.

A reference can also be made to a recent ruling issued on December 11, 2019 by the Austrian Constitutional Court, in which it annulled key parts of electronic surveillance laws that include installing a program to monitor encrypted electronic communications, enacted by the previous right-wing government with a parliamentary majority.

The court said that the surveillance law violates the European Convention on Human Rights, because it does not only target suspected criminals but all users of the device in which the program is installed. It also gives investigative authorities comprehensive information about the users’ personal life, including their personal opinions and lifestyle. In another ruling, the court also annulled a law granting the police the right to access vehicle data through traffic control systems.

The recent applications are of great importance with regard to the role of the supreme courts and the constitutional courts. The ruling of the British Supreme Court is a great historical development as it recognizes, for the first time, the responsibility of the government for the secret acts of sovereignty that are related to foreign allied countries and allows it to be tried. The rulings of the Austrian Constitutional Court are also considered as reversing and nullifying decisions of the previous right-wing government that has violated personal freedoms.

Despite the peculiarity of the development of the judicial systems in different countries, the previous applications can be a source of inspiration for the supreme and constitutional courts to play their primary, constitutional and legal role in achieving rights and freedoms leading to the achievement of justice.

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