Political tension over revision of constitutional articles

The federal government still does not agree on the list of constitutional articles that it wants to open for revision, for example to enable state reform. Time for this is running out. The landing is scheduled for Friday.

Which constitutional articles can be changed after the elections? The federal Vivaldi coalition must answer that question on Friday. If it cannot be reached, it will be difficult to get the decision through parliament before the last plenary meeting on May 8.

Although the seven government parties already approved a provisional list of five articles in 2022, there is still discussion in the De Croo government just before the deadline. As a result, there has still been no debate on the articles to be revised in parliament. “It is not nice that the House is put on hold because the government has not completed its homework,” complains Kristof Calvo (Green). ‘Instead of backroom politics at cabinet level, it would be better to have a public debate quickly.’

Central to the debate is constitutional article 195. This establishes the procedure for amending constitutional articles, but also indirectly makes the entire constitution open to revision. This makes a declaration of revision of Article 195 a crowbar for future state reform.

The trick with Article 195 was first used by the Di Rupo government during the sixth state reform, when the constitutional article was declared open to revision. “The original intention was to renew the procedure from 1831,” says constitutional law professor Stefan Sottiaux (KU Leuven). ‘The debate was about whether it should not be easier to amend the constitution and whether the population should have more say in this.’

There was no adjustment to the procedure, but Article 195 was used as a passe-partout to adjust other constitutional articles where necessary for state reform. This was done by including a transitional provision in Article 195.

The approach was controversial. Former N-VA MP Hendrik Vuye spoke at the time about ‘constitutional fraud’. “You can indeed question the rule of law that the legislature is circumventing the constitutional procedure,” says Sottiaux. ‘But there is little legal objection. There is no body that can call the government back on this. The Constitutional Court is also not competent to determine whether the amendment of the constitution has been carried out correctly.’

At the request of the N-VA, the approach was submitted to the so-called Venice Commission, an advisory body of the Council of Europe that deals with constitutional law in the European Union. The advice in 2012 was that the Belgian approach was acceptable.

The government now faces the question of whether it wants and can repeat the trick in the June 9 elections to make a seventh state reform possible, without having already negotiated it in detail. Not all coalition partners are happy with this.

The green parties want an explanation of Article 195, making it clear that it cannot be used as a passe-partout. However, constitutional specialists doubt the legal soundness of that proposal. It does not seem to be enforceable in practice, as no authority has the authority to blow the whistle on the government about the conduct of the procedure. It is also widely believed that the next parliament is not bound by the intentions of the current government. What matters is whether the article is included in the list.

Prime Minister Alexander De Croo (Open VLD) wants to include Article 195 in the list of constitutional articles that have been declared subject to revision. Remarkably, MR chairman Georges-Louis Bouchez, who as a Belgian citizen is not keen on state reform, does not make a fuss about this. He does not want to be accused, like Charles Michel, of closing the door to reform.

There is also discussion about the fact that De Croo wants to expand the 2022 list with other articles, in order to also anchor ethical themes such as the right to abortion in the constitution. CD&V is hesitant about this. The Christian Democrats want to open the door to state reform via Article 195, but do not want constitutional changes on ethical issues.

And even though there is some nervousness, it is expected that the government parties will reach an agreement on Friday and still land on time. However, it is considered unlikely that the list on which they already agreed in 2022 will be expanded.