3. Belgian Constitutional Law

Belgian Constitutional Law

General Principles: Overview

• Basis of Belgian Public Law: The Constitution.
• Main Developments since 1830.
• Hierarchy of Laws.

Basis of Belgian Public Law: The Constitution

History

• Period 1815-1830: Kingdom of the United Netherlands.
  • Criticism from Liberals and Catholics towards King Willem I.
• August 1830: First disturbances after the performance of ‘The Portici Mute’.
  • Quote: "Amour sacré de la patrie, Rends-nous l’audace et la fierté; A mon pays je dois la vie. Il me devra sa liberté”.
  • Significance: Marked the beginning of the Belgian Revolution.
• Revolutionary Actions:
  • Revolutionaries seized power.
  • Formation of a provisional Belgian parliament: the Temporary Government.
• Key Dates:
  • 4 October 1830: Temporary Government proclaims Belgium’s independence and decides to elect a parliament (National Congress) to draw up the constitution.
  • 10 November 1830: National Congress is established.
  • 7 February 1831: The Belgian Constitution is proclaimed.
  • 21 July 1831: Leopold I takes the constitutional oath, becoming the first King of the Belgians.

The Separation of Powers

• Legislature:
  • Role: Makes acts and monitors the executive.
  • Composition: Parliament (House of Representatives + Senate) and the King.
• Executive:
  • Role: Enforces and executes acts; runs the country following the acts.
  • Composition: The King (head of the executive power) and his government of ministers and secretaries of State.
• Judiciary:
  • Role: Pronounces on disputes and monitors the lawfulness of acts and executive orders.
  • Composition: Various courts and tribunals (hierarchy).
• Application Across Levels: The principle applies at the levels of the Communities and Regions but without a separate judiciary.
• Three Levels of Government:
  • Federal state + Communities and Regions
  • Provinces
  • Municipalities

Separation of Powers: The Judiciary

Hierarchy of Ordinary Courts and Tribunals

• Court of Cassation
• Appeal Courts
• Labour Courts
• Assize Courts
• District Courts
• First Instance Courts
• Commercial Courts
• Civil Magistrates (Justices of the Peace)
• Labour Tribunals
• Police Courts

Federal Level

• Judicial, Legislative, and Executive branches.
• Extraordinary Judiciary:
  • Courts.
  • Tribunals.
  • Constitutional Court.
  • Council of State.

Ordinary Judiciary

• Police Court:
  • Single-judge court.
  • Competent for:
    • Smaller crimes.
    • Traffic-related cases (accidents, offences).
• Justice of the Peace:
  • Single-judge court.
  • Competent for:
    • Cases not exceeding 5,000 euros.
    • Specific cases like renting, consumer credit, servitude, family allowance, custody of minors.
      amount \leq 5000 \text{ euros}
• First Instance Court:
  • Sections:
    • Criminal court: Criminal offences.
    • Civil court: Civil disputes.
    • Family and Youth court:
      • Family chambers: Adoption, marriage, divorce, maintenance duty, donations, inheritance.
      • Youth chambers: Criminal offences by minors; protective measures.
  • Each section divided into chambers.
  • Organized on district level.
  • Appellate court for cases:
    • Justice of the peace exceeding 2,000 euros.
      amount > 2000 \text{ euros}
    • Police court.
• Labour Tribunal:
  • Specialized tribunal at the district level.
  • Cases related to labour law and social security law.
    • Employer/employee disputes.
    • Employee disputes.
    • Pensions, unemployment compensation.
  • Collective debt settlement of private persons.
• Commercial Court:
  • Mixed composition: Professional judges and lay judges.
  • Competent for:
    • Disputes between “businesses”.
    • Commercial and corporate cases.
    • Bankruptcy and insolvency cases.
  • Organized on district level.
• Labour Court:
  • Appeal court for labour tribunal cases.
  • Mixed composition: Professional judges and lay judges in social matters.
• District Court:
  • Composed of:
    • President of the first instance court.
    • President of the commercial court.
    • President of the labour court.
  • Rules on competence issues and refers cases.
  • Organized on district level.
• Court of Appeal:
  • Five Courts of Appeal: Antwerp, Brussels, Ghent, Liège, Mons.
  • Jurisdiction defined by the Constitution:
    • Antwerp: Provinces of Antwerp and Limburg.
    • Brussels: French-speaking Brabant, Flemish-speaking Brabant, Brussels-Capital.
    • Ghent: Western and Eastern Flanders.
    • Liège: Liège, Namur, Luxembourg.
    • Mons: Hainaut.
  • Examines and reviews law cases from lower courts (first instance, commercial).
  • Second opinion on substance of cases.
  • Chambers: Civil (civil + commercial), Criminal, Youth.
• Assize Court:
  • Non-permanent court.
  • Mixed composition: Professional judges and people’s jury.
  • Tries:
    • Criminal cases.
    • Political crimes.
    • Crimes committed via the “printing press”.
  • Organized in the administrative capital of the province.
• Court of Cassation:
  • Supreme court with jurisdiction over all of Belgium.
  • Located in Brussels.
  • Appeals are possible only against judgments where no ordinary appeal is possible.
  • Examines if decisions contravene the law or rules of procedure, does not deal with the substance.

Public Prosecutor’s Office

• Standing branch of the judiciary (parket/parquet).
• Linked to courts and tribunals (except justice of the peace).
• Near Lower Courts:
  • First Instance Court: Senior Crown Prosecutor (Procureur du Roi / Procureur des Konings).
  • Commercial Court: Senior Crown Prosecutor (Procureur du Roi / Procureur des Konings).
  • Labour Tribunal: Labour Auditor (Auditeur du travail / Arbeidsauditeur).
  • Police Court: Senior Crown Prosecutor (Procureur du Roi / Procureur des Konings).
• Near Higher Courts:
  • Court of Cassation: Attorney General (Procureur général / Procureur-generaal).
  • Court of Appeal: Attorney General (Procureur général / Procureur-generaal).
  • Labour Court: Auditor General (Auditeur Général / Auditeur-generaal).

Extraordinary Judiciary

• Constitutional Court:
  • Originally for conflicts of competence between federal and regional authorities.
  • Rules on conformity of legislation with the Constitution.
  • Can annul legislation breaching the Constitution.
  • Preliminary rulings.
• Council of State:
  • Administrative section: highest administrative court.
  • Legislative section: gives opinions on draft laws, decrees, and orders; proposes amendments.

Basis of Belgian Public Law: The Constitution

• Belgium as a Monarchy:
  • Reason: To raise confidence in surrounding countries.
  • Limited personal powers: Unaccountable and incompetent.
  • Inviolable.
  • Empowered ‘to listen, to advise, and to encourage the government’.
  • Constitutional power passed on in hereditary succession (primogeniture).
• Belgium as a Representative and Parliamentary Democracy:
  • History of the Belgian voting system.
    • 1831: Levy-based electoral system.
    • 1893: Universal right of plural voting (compulsory voting).
    • 1919: Universal single vote system: ‘one man one vote’.
    • 1948: Women were given the right to vote and to be eligible.
    • Later Evolutions:
      • Minimum age: 18 (16?).
      • EU citizens’ right to vote.
      • Foreigners’ right to vote.
      • Right to vote for elections at the level of the municipalities.
• Human Rights:
  • Examples in the Constitution:
    • Equality and non-discrimination.
    • Freedom of expression.
    • Freedom of religion and worship.
    • Freedom of use of language.
    • Right to privacy.
    • Freedom of public meeting.
    • Right to an impartial judge.
    • Right to social security.
    • Right to property and ownership.
    • Nullum crimen sine lege, nulla poena sine lege.
    • Right to life.
    • Freedom of association.
    • Right to education and freedom of education.
    • Right to freedom of information.
• Amending the Constitution:
  • Difficult procedure (2 legislatures, ‘Constituante’).
  • Constitutional majority (2/3 majority of every language group).
  • Illustration: Article 22bis: “Each child is entitled to have its moral, physical, mental and sexual integrity respected”.
    \text{majority} = \frac{2}{3}

Main Developments Since 1830: Overview

• Four Language Regions.
• Belgium as a Federal State.
• Belgium as a Welfare State.

Four Language Regions (1963)

• Freedom of language use guaranteed by the Constitution.
• Language rules possible for:
  • The educational system.
  • Relations between employers and employees.
  • The courts.
  • Government institutions.
• Abuses post-independence:
  • Government language: French.
  • Impoverished citizens in Flanders spoke Dutch.
• First World War: language problems surfaced dramatically.
• Result: 1963: Belgium split into 4 language regions:
  • Dutch language region: West Flanders, East Flanders, Antwerp, Limburg, Flemish Brabant.
  • French language region: Hainault, Luxembourg, Namur, Walloon Brabant, Liège.
  • German language region: Some municipalities in the province of Liège.
  • Bilingual region Brussels-Capital: The 19 Brussels municipalities.
• Recognition extends beyond geographical subdivision.
• Principle of territoriality:
  • In monolingual regions, the language of the area is the administrative language.
  • In Brussels-Capital, Dutch and French are on equal footing.
• Municipalities with facilities: limitations to territoriality, for municipalities with both French- and Dutch-speaking residents.
  • Announcements, notices, and forms in Dutch and French.
  • Communication with citizens in their language of choice.
  • Only for the benefit of the people, not government institutions.
  • Similar facilities for municipalities with German- and French-speaking residents.
  • Constitutional provision.

Belgium as a Federal State

• Before: Unitary state (Unitaire Staat = 1 parlement, 1 regering).
• Fairly recent development: 1831-1970: Unitary state.
• Factors:
  • The monarchical question.
    • Unconstitutional referendum after WW II: ‘Do you agree to King Leopold III to exercise his constitutional powers again’?
    • Result: 57% affirmative, major differences between Walloons and Flemings.
      \text{Affirmative} = 57 \%
  • Economic federalism.
    • Large economic gap between Wallonia’s obsolete steel sector and Flanders’ new industrial sector.
  • Split of Leuven and Brussels universities into French and Dutch departments after student protests.
• 1993: Constitutional amendment:
  • Article 1: “Belgium is a federal State, composed of the Communities and the Regions”.
    • Communities with own parliament and government.
    • Decrees and ordinances: same level as federal laws (‘acts’).
    • Powers limited to a part of the territory or to particular areas of competence (federal government has powers across the whole country).
• Three Communities:
  • Flemish Community.
  • French Community.
  • German-speaking Community.
  • Competences: Culture, personal matters, education, language use.
• Three Regions:
  • Flemish Region.
  • Walloon Region.
  • Region Brussels Capital.
  • Competences: Related to economic matters; issues tied to a particular place.

Belgium as a Welfare State

• Unemployment benefit, reimbursement of medical costs, pension, assistance by the Public Centre for Social Welfare.
• 1993: Basic social rights in the Constitution (article 23): “Everyone is entitled to a life in conformity with human dignity and to social security and employment”.
• More recently: Active welfare state: social protection and social investments; government should give people opportunities to develop themselves.