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≤5000 eurosamount \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”.
      majority=23\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.
        Affirmative=57%\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.