BELGIUM

[Special to JURIST] Welcome to the first JURIST report on Belgian law. It is not an easy task to present the Belgian constitutional system in such a short essay, as it is one of the most complicated features of the Belgian legal system. To better understand that system, it is best to briefly review some of the crucial points of Belgium's political and institutional history as those have affected the Constitution throughout the 169 years of the country's existence.

Belgium has undergone six constitutional revisions (1893, 1920, 1970, 1980, 1989, 1993). While the first two were insignificant, except for the fact that they rendered the vote mandatory, the last four totally changed the structure of the state and are therefore called institutional reforms.

Put bluntly, Belgium's institutional landscape is shaped by economics, language and culture. As you might know, three different languages are spoken in the country: Dutch in the North (Flanders), constituting roughly 60% of the population; French in the South (Walloonia), constituting roughly 40% of the population; and German in the East (Eastern cantons), constituting only about 70,000 people. During the 19th century, primarily the French-speaking minority ruled Belgium.

Flemish demands for linguistic and cultural recognition grew throughout the 20th century. In the 1960s, Belgium began a move towards abandoning the original unitary state, which was based on a decentralised system (i.e where "decentralised" means the unitary state delegated some power to local authorities while these authorities remained subject to central state power). Among the reasons for this abandonment was the supposed language supremacy of the French-speaking people. The most striking event occurred when Leuven University split in 1968. Leuven University is located in Flanders, however classes were mostly taught in French. As a result, it became the theatre for violent demonstrations by Dutch speaking students. Two separate universities consequently emerged, one exclusively French speaking, the other exclusively Dutch speaking. Another significant trend was the decline of Walloonia's once booming steel and coal industries, which provoked strikes and unemployment. The steady growth of Flanders economy sharply contrasted with Walloonia's decline.

Due to these cultural and economic changes, the Belgian political climate deteriorated and a new system of managing the country was needed. In 1970, the Constitution was amended to divide the country into three "cultural communities": the Flemish Community, the French Community and the German speaking Community. Each was given the culturally-linked competencies once belonging to the state (i.e. (1) the use of languages in education, administrative matters and relationships between employers and employees, (2) cultural matters, including broadcasting, tourism, youth policy, (3) co-operation between the cultural entities and international cultural co-operation and (4) some educational matters). This first change made Belgium one of the few countries in the world to be deemed "non-classifiable" because of its unique (in its genre) constitutional system. Indeed these cultural communities were not based on geographic territory, as in a classical regional system, but by language. Communities' competencies were to be applied to the people who spoke the same language. This was made possible by the establishment of a linguistic border which divided the South from the North.

Ten years later, the 1980 reform reinforced the trend toward more autonomy and created even more complicated structures, making Belgium a real "constitutional laboratory". First, the Communities were given more competencies, namely over "matters concerning persons" (e.g. health policy, personal assistance, youth protection...). In addition to the Communities, two Regions came to life, the Flemish region and the Walloon region. Each region was attributed several economic competencies previously belonging to the national state (including Environment, town and country planning, regional development, rural renovation and nature preservation, housing, water policy, relations with municipalities and provinces, employment policy, energy policy, transportation, and public works). Thus the regions now correspond more to actual physical territories, whereas the communities reveal the cultural and linguistic sentiments.

Competencies of Communities and regions are guaranteed by "special laws", which are almost as strong in the legal hierarchy as the Constitution because they can only be changed at a special "linguistic" majority. Because of political disagreements, Brussels and its outskirts became a region only in 1989. It enjoys a tailored regional status because of its hybrid linguistic status (both French and Dutch are spoken, however approximately 90% of the city's population can speak French) and because of the city's many "caps" (being the capital for Belgium, the European Community, and the Flemish region).

To summarise, in 1989, Belgium was ultimately comprised of three regions and three communities. The last institutional reform of 1993 asserted the tendency toward more autonomy by making Belgium a federal State.

Structure of the Belgian State

The Constitution is divided into five titles. The first article of the first title declares that Belgium is a federal state composed of six federate entities, the three Communities and three Regions (art. 2 and 3). Furthermore, Belgium is divided into four linguistic regions (Dutch speaking, French speaking, bilingual of Brussels-Capital and German speaking) which can only be changed by a "special law" (art. 4). Every municipality is part of one these regions. The initial linguistic borders established in the sixties are still in force. Each region includes a number of provinces (art. 5). The province of Brabant was split in two in 1993, increasing the total number of provinces from nine to ten.

Constitutional Rights

The rights of Belgians are set forth in the second title, a position that reveals their importance to the Belgian Constituent (art. 8 - 32). This title follows in substance the European Convention of Human Rights of November 4, 1950 and the International Pact of New York of December 19, 1966. It includes classical human rights as well as social and economic rights (such as e.g. the right to social welfare, the right to live in a sane environment...).

Powers and Competencies

Governmental powers are dealt with in the Third Title (art. 33 - 166). Powers are divided between the federal state and the federate entities. The federal state has only the competencies formally attributed by the Constitution, while the regions and communities have all the remaining powers (art. 35). This reveals a system where federal entities manage the residual matters, and consequently are given more self-determination power.

It is now appropriate to discuss the existence of the King of Belgians. Indeed, the King, the House of Representatives and the Senate collectively exercise federal legislative power (art. 36). The King is limited to a "moral" power in the sense that, as in many European monarchies, he does not really have a say in the substance of the legislative decisions. However, his signature is required on all bills before they may be put in force. This apparently benign formality created a constitutional conundrum, when King Baudouin the First refused to sign the bill legalising abortion in 1989. The statute was paralysed for several hours, while constitutional law professors were thinking of a way to circumvent his refusal. The crisis was resolved by interpreting art. 93 of the Constitution as allowing the legislature to declare the King unable to reign. Then art. 90 al. 3 enabled the Council of Ministers to sign the bill. Several days later, the Parliament declared the end of the period of incapacity of the King. The king apparently also holds the federal executive power (art. 37), but in reality it belongs to the Ministers. The real power the King has kept is the power to nominate the federal "informator" who is the person charged with the complex task of composing the federal government after the elections. The "informator" generally becomes the Prime Minister, but this is not automatic.

The Parliament is composed of the House and the Senate (art. 43), both of which include two linguistic groups (French and Dutch). The German-speaking people are not represented by their own separate linguistic group as such and must choose one of the two main linguistic groups. In the first chapter, articles 42 - 60 describe the common features of the federal Parliament, while articles 61 - 73 regulate its basic organisation (e.g. number of representatives and senators, conditions of eligibility...). The second chapter (art. 74 - 84) describes the competencies of the Parliament and the legislative process. The third chapter regulates the powers, competencies and duties of the King, as well as of the federal Government (art. 85 - 114). Belgium is therefore a constitutional monarchy, with a parliamentary regime (art. 101). An interesting feature of the Belgian federal government is that the 15 ministers must be comprised equally of French-speaking individuals and Dutch-speaking individuals, with the exception of the Prime Minister (art. 99). In the constitutional jargon, the Prime Minister is qualified as "linguistically asexual".

As for the fourth chapter of this title (art. 115 - 140), it sets forth the basis of the organisation of the federate entities (organs and competencies). All the details are divided meticulously into separate "special laws". Regional and communities' competencies that have been fully described above consist respectively of economic competencies and cultural matters (art. 127). Both regions and communities enact legislation in these areas, by way of decrees, which have the same force as the federal statutes. Decrees taken by the Communities have force only in the respective linguistic regions, as set in article 4, while regional decrees have force only in the respective regional territories.

Court System

Belgium also has its constitutional court, called the "Court of Arbitration" (chapter V, art. 141 - 143). Its name and origin come from the need to settle conflicts between communities and the ex-national state concerning their competencies. It was created in 1980 and began its activities in 1985. Its present competencies have increased, and it acts as an almost fully-fledged constitutional court. It adjudicates the constitutionality of statutes and decrees, the relationship between Belgian law and international treaties, as well as human rights violations. Although this last competency is not written as such in the constitution, the court has by way of extensive interpretation appropriated this matter.

The Belgian court system (chapter VI, art. 144 - 159) is further composed of the usual two-tiered civil and criminal system of jurisdiction. At the top rule the Court of Cassation (Supreme Court) (art. 147) and a set of administrative courts, also two-tiered, headed by the Council of State (Supreme Administrative Court) (art. 160). The Court of Cassation only reviews questions of law, not the facts, and is consequently not a third level of jurisdiction.

Other Provisions

International relations are dealt with in Title IV. The power to conclude treaties is split between the federal state and federate entities according to their respective competencies. Financial matters are dealt with in a separate title (Title V), which organises the powers of the federal and federate entities in respect to taxation. The last four titles deal with public force (VI), general provisions (VII), revision of the constitution (VIII) and transitory provisions (IX). It is worthwhile to point out along with these last provisions that the text of the constitution is written entirely in French, Dutch and German (art. 189) and that all three languages are official and on the same footing. The mechanism of constitutional revision has been secured safely in article 195. For any modification, the federal Parliament is dissolved and elections are organised. The Parliament discusses the points to be revised with the King (understand in reality the Ministers). A special majority is needed, 2/3 of the members of both chambers must be present and 2/3 of the members present in the two chambers must vote positively for the proposed changes. At present, further changes to the Constitution are being discussed, such as more financial autonomy for the federate entities.

Estelle Derclaye
JURIST Belgian Correspondent
Faculty of Law,
University of Liège

January 29, 2001

(c) E. Derclaye

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