The Role of the Constitution Founder in Phrasing the Constitutional Rules related to the Rights and Freedoms of Individuals: A Comparative Study
Dr. Fatima Zahra Ramadani
Professor Lecturer “A” of Constitutional Law
and Comparative Political Systems
Faculty of Law and Political Science
University of Abu Bakr Belkaid, Tlemcen, Algeria
The legal drafting of constitutional rules is considered an important tool used to highlight the contents that the constitution founder sees as necessary to organize them so as to protect the public interest. This study poses the problem of identifying the extent to which the constitution founder, in a group of countries under study, contributed to the promotion of the basic document of the state, with regard to the exercise of the rights and freedoms of individuals by dedicating actual guarantees to move them into practical reality through its formulation.
The study aimed to identify the way the constituent authority works on enacting and formulating legal rules related to the rights and freedoms of individuals, especially the Algerian constitutional founder for the year 2020, and the effect of good or poor drafting on the actual enactment of it on the ground. The scope of the research on this subject is limited to selected models from countries with different constitutional systems: Kuwait, Bahrain, Morocco, Tunisia, France, Algeria, through the use of the comparative method in addition to the critical analytical method through three main axes.
The study revealed that the good formulation of such rules necessarily requires knowledge of the details of this science represented in legal specialization, good use of scientific rules and appropriate tools for the real translation of the ideas to be codified, in addition to the linguistic dexterity of those in charge of them, in order to produce rules that are simple to understand, and easy to apply. They should not be subject to interpretation. Moreover, they ought to be honest in expressing the political will to initiate the text, which would contribute to strengthening guarantees of the rights and freedoms of individuals, which are among the most important features of the rule of law. They must encourage the citizen›s confidence in his state.
Despite some lapses made by the Algerian constitution drafters of 2020, the suggested additions constituted one step to improve the content of constitutional regulations which are related to rights, freedoms, and their guarantees. The study ends by calling for the need by state constitution drafters to formulate the constitutional rights and freedoms of individuals stressing the importance of making recommendations aimed at enriching the Algerian constitution amendment document in later emendations by relying on the comparative constitutions under study.
Key words: constituent authority, legal drafting, comparative constitutions, human rights, organization.