The revolutionary role of the Constitutional Court as protector of freedom, individual rights and human rights
The CC’s role in any country is associated with the concept of how the people approach their government. How do legal systems protect their interests?[510] That might vary due to the judicial review that was established in each country.[511]
In the MENA region, the understanding of freedoms and citizen protection is a debated matter and one of the main causes of the Arab Spring protests.
This section will examine the CC's role in freedom protection and individuals’ rights and basic freedoms. The CC forms the legal framework for more democratic societies in Morocco and Jordan, by balancing the judiciary and democracy. The challenges that the CCs face are to find the right balance between the court’s duties towards the people on one hand and the duties towards the state on the other hand.[512] [513] The determination is based on the legislation in each state. Accordingly, in some cases, this could produce a political position; in other cases, a resolution could be accessible without facing any conflicts. Some might claim that the role and regulation of the CC in public life is the ruling party’s responsibility in ordinary and extraordinary circumstances. Thus, a CC has to deal with challenges based on the legislation and the resolution.[514] Therefore, a CC should support and protect human rights and freedoms to play an active role in the MENA region, keeping in mind some principal elements, such as the responsibility of judges and lawyers and the awareness of the public. The hope is that CCs will have an actual judicial role in protecting human rights and freedoms, enhancing justice and advancing the rule of law in the MENA region.[515] At a theoretical level, the public demand in the region played a crucial role in establishing the CCs to provide a judicial review to invalidate the regulations and laws opposed to constitutions and in violation of human rights and freedom. However, the review procedures proposed by the new amendment provisions are particularly ambiguous. Therefore, the cynics argue that the review procedure is unnecessary and not helpful. To build a human rights-oriented and progressive jurisprudence, it is essential for a CC to maintain the independence of the judiciary and judges while deciding a constitutional issue. This will remain a problematic aspect under examination, due, for instance, to the direct intervention of the king in Jordan in judges’ appointments.[516] It increases trust among the public if the judicial system in general and the CC in particular are reliable and key elements in human rights and freedom. A CC does not have exclusive powers over protection of the human rights and freedoms of citizens, as indeed the king remains the protector in a monarchical regime. Likewise, in Morocco, the king, for example, remains a protector ‘of the rights and freedoms of citizens, male and female, and of groups’.[517] Parallel with the previous constitution, in monarchies the question of the degree of involvement of the king in the constitution and the laws is still open, despite the efforts to empower judges. Under the new constitution, the judges remain ‘in charge of protection of rights and freedom’.[518]5
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