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Peter Callens

"Do we benefit from overruling the Constitutional Court? That is the key question"

In this column, our chairman reflects on current affairs. You will read it every fortnight. Find out what he wants to talk to you about today.

The Carnival holiday was barely over. Immediately, the thinking of the legal community was put to the test: N-VA MP S. Loones called for the possibility of a 'popular appeal' against Constitutional Court rulings.

Under the slogan 'in the rule of law, democracy must prevail', the politician wants to go against activist judges, who themselves determine the law in the place of the elected representatives of the people. This, according to the initiator, has mainly to do with the questionable quality of legislation. Judges by necessity jump into that breach. But the collateral damage of that is that judges determine policy. Democracy needs repair.

That activist judges could be found in the Constitutional Court, of all places, is a remarkable thought that makes me smile. But let us not dwell on the form and go straight to the substance of the proposal. If only because in the press and among Flanders' most knowledgeable legal blogger, the air alert had gone off. In right-thinking circles, nose pinches were put on. Brussels would become Warsaw-on-the-Senne, or worse. But it is not that far off.

According to its author, the proposal finds inspiration in the notwithstanding clause of the Canadian Charter of Rights and Freedoms. That is a provision that allows governments to exempt their own regulations from judicial review against the same Charter.

In one move, the author suggests giving the House the option of reversing a Constitutional Court decision by a two-thirds majority.

The proposal is more akin to a political stream-of-consciousness than a legally attached rationale, but the principles are serious enough to act on.
- Peter Callens, chairman

One, the notwithstanding clause. Or, in beautiful Quebec French, the clause dérogatoire or clause nonobstant of Article 33 of the Canadian Charter. That provision allows federal or provincial parliaments to protect their own legislation from judicial review against the Charter for a renewable 5-year period. It is a compromise from the 1980s, between advocates of the full democratic enforceability of all laws, on the one hand, and advocates of the Charter as a higher standard of law to which parliaments must adhere, on the other.

Simply transposing this mechanism to one's own country belongs to the realm of legal fiction. Indeed, Article 187 of the Constitution reads, "The Constitution cannot be suspended in whole or in part." Unless Article 187 would be amended, but we are not that far.

Two, the 'popular appeal' against Constitutional Court judgments. That unfortunate name brings to mind 'people's tribunal' - brrrrr - but hides a fundamental debate: is the question of a law's conformity to the Constitution a political issue or is it a legal one?

For more than a century and a half since Belgium's independence, we have lived with the belief that parliament was the only institution that could judge whether a law conformed to the Constitution. It is only since 1988 that review of laws against the Constitution has been possible. Initially, it was limited to testing against the principle of equality, the principle of non-discrimination or the rights and freedoms regarding education. Only later was it extended.

What applied with us until 1988 still applies today in the Netherlands. Article 120 of the Constitution there states: "The court shall not enter into the assessment of the constitutionality of laws and treaties."

Many imagine the 19th century as the cradle of liberal democracy. Back then, parliament itself judged how it interpreted the Constitution, without review or sanction afterwards. Viewed this way, the 19th century was rather the cradle of illiberal democracy, in which the majority could do as it pleased without constitutional hindrance. A somewhat disconcerting discovery.

Whatever the case, in the 20th century the trend towards constitutional review continued, especially after the horrors of WWII. Germany and Italy made inroads. France also followed, with greater trepidation, and established its Conseil Constitutionnel. Belgium followed much later. Today, in the Netherlands too, the introduction of constitutional review is highly topical and our northern neighbours are considering the establishment of a Constitutional Court. The conflict between a law and the Constitution thus acquires, in our part of the world, a legally charged content. This raises the objection, in some circles, that the judge, under the pretext of legal reasoning, is in reality doing politics. Which is not his function.

The new proposal is actually a partial return to the political approach.

In doing so, it goes against the prevailing zeitgeist in Europe. But it may be the expression of a new trend.

Apart from all the questions of procedural economy and legal certainty that accompany the proposal, we will have to ask ourselves what benefit we derive from being able to overrule a ruling of the Constitutional Court. After all, in our legal system, in politically sensitive cases, the test against the ECHR or the European treaty rules will prevail. Parliament will not be able to reverse that test. And if the Constitutional Court rules on a competence issue, as it did in the 5/2021 ruling on solar panels, it would be absurd for an incompetent parliament to overrule a Constitutional Court ruling that establishes that incompetence.

Moreover, it is questionable whether we want to do without the luxury of the particularly high quality of judgments, and are willing to fall back on the rather quantitative democratic count of a majority in parliament.

Panic is unnecessary for now: even without the clause notwithstanding, the proposal must undergo the tough test of constitutional amendment. But it does provide a nice intellectual debate in these times of tournée minérale.

With affectionate regards,

Peter Callens