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  • Writer's pictureMoyse & Associates

The Luxembourg Constitution finally modernised

Due to the lack of political consensus for the adoption of a completely new Constitution, which dates back to 1868, a modernisation project was finally undertaken in several stages, a process that lasted for more than 10 years.

Thus, the current reform of the Constitution has four main components: Justice, Organisation of the State, Rights, and Freedoms, Parliament, and Council of State.

The independence of the judiciary is now expressly enshrined in the new Constitution. It is a functional independence, in that it is linked to the exercise of judicial functions by judges. This independence of judges implies a strict separation between the judiciary and the State Prosecutor’s Office and is reinforced through the creation of a National Council of Justice, mainly composed of magistrates. Its future role will be to ensure the proper functioning of the justice system and to strengthen its transparency.

Furthermore, the rights of the accused have been strengthened. The principle of the presumption of innocence, the principle of reasonable time, and the principle of adversarial debate are anchored in the modernised Constitution, as are other fundamental rights, such as the impartiality of the judge, the public nature of hearings and the reasoning of decisions and their delivery in public hearings.

The new constitutional text has included the Luxembourg language in its chapter on “Organisation of the State”, alongside the Luxembourg flag and the national anthem.

The provisions relating to the Grand Duke, the Head of State, have undergone the most substantial changes. The Head of State now exercises executive power jointly with the Government and has an essentially symbolic and ceremonial function.

As for the third part, relating to rights and freedoms, the fundamental rights that have been introduced into the Constitution and that have a non-derogatory character are the inviolability of human dignity, the prohibition of torture, and the right to physical and mental integrity.

The public freedoms are supplemented by the interests of the child, the right to found a family, the right to informational self-determination and the protection of personal data, and the right to asylum. A cross-cutting clause inspired by Article 52(1) of the Charter of Fundamental Rights of the European Union and Article 18 of the European Convention on Human Rights has been introduced into the new Constitution, the purpose of which is that any restriction on the exercise of public freedoms must be provided for by law and respect its essential content.

A third category, “objectives of constitutional value”, was introduced, which are not rights per se, but a set of manifestations of political will that cannot be invoked in court. The right to work, social dialogue, the right to housing, the fight against climate change, and the protection of the human and natural environment, to name just a few, constitute such objectives of constitutional value.

The last part of the constitutional amendment is devoted to the Parliament and the Council of State, including the introduction of a citizens’ legislative initiative.

The Parliament gains power in the sense that it exercises legislative power and controls the activity of the Government, for instance by addressing questions and interpellations to the Government, to which the latter is obliged to respond. In addition, the Parliament will have a direct link with the Council of State, as until now the Parliament had to go through the Ministry of State to refer matters to the Council of State.

The new supreme law is expected to come into force in the course of 2023.


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