This is a Twitter Thread turned blog post

This may be interesting for native english speakers, especially those working in international environments. For my Luxemburgish/German readers this may be interesting to know as well.

Among the many things I dislike about languages with Germanic roots (like Luxemburgish) is that our language allows for no differenciation between "Safety" and "Security", making my job difficult.

The english language allows us to differentiate between both terms and allows for easier meaningfull discussions. German and Luxemburgish just know the word "security", there is, to my understanding, no equivalent to the word "safety".

These words however do not have the same meaning.

The state of being protected from danger or harm. The condition of being protected from or unlikely to cause danger, risk, or injury. 
protection of a person, building, organization, or country against threats such as crime or attacks by foreign countries:
Many don't realise that this is part of the reason we often end up disagreeing although we fundamentaly agree, is just the wrong meaning associated to the word "security" and the way we use it.

So in the current debate about tracing apps, associated privacy fears and fear of lack of security controls - this becomes ;
  • Goal of a tracing application : Safety of Individuals and Society
  • Means to get there: Security and Privacy controls and mechanism are used to guarantee (to some degree) the  Privacy and Security of the unterlying data
  • Allowing for  : Safety through actions taken by analysing the data.

The Luxemburgish Constitution is not for its people?

29/04/2020 - Added section entitled "About the non-deterministic nature"

Bold Statement? Let me take a moment and explain why I came to this rather confrontational conclusion. 

Since the measures against the SARS-CoV-2 Pandemic were introduced my interest in our constitutional rights grew, I was curious to understand under which legal frameworks those measures operated. 

I must admit that I had a clearer understanding of the US Constitution that I had about the constitution that applies to me. That may have been ignorance on my part, but as I soon found out, it's not solely ignorance, it's simply because the Luxemburgish constitution doesn't really say much about the rights of its people and in some cases has quite extraordinary gaps.

Also of note is the fact that the government chooses to not directly involve its citizens in the revision of the constitution, which is in itself I find quite remarkable.

Disclaimer: I am not a legal professional but a simple citizen. I would argue that fundamental rights in a constitution of a state is to be written in such a way for the average citizen to know and understand. I expect to be wrong in certain areas. Feedback and critique welcomed. This post is in English for the many inhabitants of Luxembourg that cannot read the constitution that may or may not apply to them.

As a start and for comparision, here is a list of constitutions * :

* I am aware that all of these have distinctly (in some cases completely) different legal systems.

A list of gaps

  • Contrary to for example Germany, the constitution says nothing about Human Dignity and the state's obligation to protect it. That's actually the first article from the German Constitution. "(1) Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt." 
    In that context, I'd like to point out and emphasize that the constitution however explicitly guarantees that the state will protect the environment (nature) and the promotion of the well-being of animals. (Art11 bis).
  • The Luxembourgish Constitution makes no reference to guarantee the fundamental rights of defense. All Luxembourg case-law on procedural and defense rights are based on Article 6 ECHR and does not rely on the Constitution, which does not expressly contain such rights.
  • The Luxembourg Constitution has not explicitly provided any constitutional body to protect fundamental rights
  • The Luxemburgish Constitution with regards to fundamental rights (Chap 2) is often arbitrary in the sense that for the most part it refers to laws that should at a later stage determine the details of those rights. Contrary to for example the constitution of Germany, there is a clear lack of directly deterministic language. Not using a deterministic language guarantees flexibility for the government to change adapt these (through law) at the expense of clarity and  rigidity. It also however is in direct contradiction of the right guaranteed in Art. 11.

    Let's expand on that; the constitution acknowledges the  "droit naturel humain" as fundamental right in Art. 11.

    Simply put the "natural human right" are rights that you own because you are human. 
    The "Droit Naturel Humain" seeks to establish a standard that is immune to the fluctuations of history and morals and avoids the arbitrariness of human judgment. 

    However, the section on fundamental rights within the Luxemburgish constitution seemingly contradicts the very intent of this concept by introducing relative statements all across it's section of fundamental rights ("as determined by law").

    Natural law is actually opposed to positive law, which is the law in force, enacted by society or the State, which by definition is changeable, according to places and times.

    Fundamental rights hence should be clearly and deterministically formulated as far as possible, but they often are not and deliberately weak and hollow :

    Examples :L’Etat garantit la protection de la vie privée, sauf les exceptions fixées par la loi La liberté du commerce et de l’industrie, l’exercice de la profession libérale et du travail agricole sont garantis, sauf les restrictions à établir par la loi

    La liberté individuelle est garantie. - Nul ne peut être poursuivi que dans les cas prévus par la loi et dans la forme qu’elle prescrit. - Nul ne peut être arrêté ou placé que dans les cas prévus par la loi et dans la forme qu’elle prescrit.

Are they really gaps?

In Luxemburg fundamental rights are not limited to the Consitution only, they include the UN Charta of Human Rights and the European Declaration of Human Rights and the Luxemburgish courts have given precedence of these obligations over national law.

It is true that Luxembourg is subject to the EDHR/UN Charta and implicitly is bound by these. It is also true that Luxembourg operates on a model where the courts do verify cases in alignment to treaties and fundamental rights. 

That said, I have to say two things for those arguing that this situation is fine:
  • If it's the case that these take precedence, then I see no reason to not just simply add them to the revision of the constitution, making it both more accessible and understandable for an average citizen (.i.e. me).
  • Personally I find it quite frightening that an average citizen is supposed to read, understand and cross-reference existing jurisprudence (or nonexisting for that matter - we have many articles with zero existing case law..) , international treaties, chartas for them to understand their fundamental rights as a citizen of Luxembourg. A constitution and a list of fundamental rights shall be easy to understand and easy to comprehend by it's people.
It is therefore that I come to the conclusion that Luxemburgs' constitution, in it's current (and planned) form is simply not meant for its people, and that's something I'd like to see challenged.

About the non deterministic nature 

To make this clearer, let's take a few examples.

Luxemburgs current understanding of describing a fundamental human right in a constitution is best demonstrated by Art 25 :
«Art. 25. La Constitution garantit le droit de s’assembler paisiblement et sans armes, dans le respect des lois qui règlent l’exercice de ce droit, sans pouvoir le soumettre à une autorisation préalable. - Cette disposition ne s’applique pas aux rassemblements en plein air, politiques, religieux ou autres; ces rassemblements restent entièrement soumis aux lois et règlements de police
Translation :
"ART. 25. The Constitution guarantees the right to assemble peacefully and unarmed, in accordance with the laws regulating the exercise of this right, without being able to subject it to prior authorization. - This provision does not apply to open-air, political, religious or other gatherings; such gatherings remain entirely subject to the laws and police regulations."
That's not a description of a fundamental right, and in my opinion has no place in a constitution. That is basically saying, you have a right, and we restrict that right. Then after finishing that very sentence and for good measure, we continue to restrict your "fundamental right" even further by excluding open-air, political, religious or "other gatherings" and pointing to laws and police regulations that are not futher described. This is both ambigious and deliberate. In my opinion, that's plain nonsense and a travesty and has no place in a section on fundamental rights in a constitution.

Let's take a look at Art 8 of the German Constitution describing what is basically the same fundamental right.
Art. 8 GG : "(1) Alle Deutschen haben das Recht, sich ohne Anmeldung oder Erlaubnis friedlich und ohne Waffen zu versammeln. (2) Für Versammlungen unter freiem Himmel kann dieses Recht durch Gesetz oder auf Grund eines Gesetzes beschränkt werden.
Translation :
(1) All Germans have the right to assemble peacefully and without weapons without registration or permission.(2) For assemblies in the open air, this right may be restricted by law or by virtue of a statute.
Apart from being short and to the point; the German constitution allows for restrictions by law without stating that the constitution effectively already restricts them, Germany has not included  restrictions in the constitution even what they are. 

Changes I'd like to see

  • Take Chapter 2 (Fundamental Rights) and transform it into deterministic statements actually applying Art11 ("Natural Human Law") as much as possible. i.e "Your right is XYZ", instead of: "Your right on topic X will be determined within a law and is not ..". Those articles in essence just state that there must be a law, not the intent or limits such laws would have. If I was able to convey my logic to my reader you will understand that all I am really asking for is applying Art.11 of the constitution "Droit naturel Humain".
  • Fundamental rights also serve the purpose to protect from arbritary decisions by governments. we should stay away from mechanisms allowing governments to change the fundamental rights the constitution by way of backdooring it with "will be determined within the law".

    Granted, yes there are other procedures with checks and balances within the legislative process and yes sometimes it is necessary to say that, but that's should be the exception not the norm. That said, a fundamental right is fundamental and only allowed to be circumsized within limits. These limits could be described. 
  • Involve citizens more into the revision process 

If you master German I recommend to read "Grundrechte im Großherzogtum Luxemburg"

Final Word

I leave you with the following - which I think is relevant and applicable to the current situation  :