It is a regular occurrence at the end of a reign. The dissolution of the House and Senate is accompanied by the designation of the constitutional articles that can be amended in the next government period. In two weeks, on May 8, the time has come. In itself it is an important rite of passage. It symbolizes the idea that the constitution, the foundation of our democratic constitutional state, cannot simply be broken open by an accidental majority. At the same time, there is something presumptuous that the current class of elected officials determines the room for maneuver for the future class.
In a mature democracy you expect a passionate debate about this. In The standard This week, a broad coalition of equal opportunities organizations made a case for amending Article 150, on the punishment of so-called press crimes. They want homophobic or transphobic writing to no longer be tried before an assize jury, but by a criminal court, as is already the case for racist or xenophobic press crimes. That is a fundamental change in how we want to legally enforce the limits on free speech. Whether or not to open up Article 150 determines whether or not we as a society can have that debate later.
And the constitution does regulate a few of those fundamental matters: free education, the right to social security, the existence of the Senate and compulsory attendance and the absence of a federal electoral district. The entire political household, in fact. It is our most important scrap of paper, to quote former Prime Minister Leo Tindemans (CVP).
In the nineteenth century, the document was considered the most liberal and democratic constitution in the world, after that of the United States. Today, few Belgians know exactly what the constitution says. “The Belgian constitutional identity is dead,” lawyer Stefan Sottiaux and historian Maartje van der Laak noted in this newspaper several years ago.
Core Cabinet decides
Here too, particracy has a paralyzing effect, because the list of “articles declared subject to review” must have the approval of the federal government. The ultimate deliberation immediately moves to the privacy of the core cabinet. A potential public debate is exchanged for an arm wrestle behind closed doors based on party interests.
Everyone remembers how Prime Minister Charles Michel (MR) did not want to leave any opening for potential state reform after the exit of the N-VA from the Swedish government in 2019. What remained was a very meager list of constitutional articles that the current parliament could work with, albeit with Article 150 included.
Today too, the discussion continues between Prime Minister Alexander De Croo (Open VLD) and his deputy prime ministers. However, a deal was already concluded at the start of Vivaldi. The seven Vivaldi parties decided in October 2020 to resolve the matter in Belgian style, namely by declaring the famous Article 195 certainly subject to review. It is explicitly stated in the coalition agreement. That article regulates the procedure for constitutional revision. It is a bit technical, but by understanding that article, you can then in principle implement more constitutional changes, without having to make concrete what you really want to change and why.
You could call it a hack, a handy trick that serves to avoid having to have the essential debate. However, for then CD&V chairman Joachim Coens, it was an essential requirement to join Vivaldi, to offer the prospect of a seventh state reform and not to end up empty-handed, like the N-VA in 2019. Gradually, the specific articles would be indicated that they wanted to amend in the context of “democratic renewal” and “a new state structure from 2024 with a more homogeneously efficient division of powers” – we quote the coalition agreement again.
Emergency breaks constitution
But those are precisely the two areas where Vivaldi has fallen terribly short. That is why the only thing that threatened to remain was Article 195, an “emergency procedure” that the Liberals openly put on the table this week. But that emergency solution is too poor for the greens. They also want an explicit mention of Article 7bis, which obliges governments to “strive” towards sustainable development. During this period of government, that article – which Michel had also indicated – should have been transformed into a real climate law, but that passage from the coalition agreement also remained a dead letter.
Finally, the constitutional articles that should make the abolition of the Senate possible, and a number of individual fundamental rights, will be examined. The government wants to reach an agreement by Monday, after a debate in a working group, behind the scenes. Nobody expects a list that is much longer than the one from 2020.
The tug-of-war feels a bit surreal, knowing that any chance of real reform will soon be very small. The growth of Vlaams Belang and PVDA, parties with which no one wants to do business at the federal level, means that a two-thirds majority is required to amend the constitution. effective to adapt, will soon be virtually impossible to find. Today, those two parties together occupy 30 of the 150 seats, which will be considerably more. It is this not so unlikely blockage that makes the N-VA think about “extralegal” options to rework Belgian architecture. In doing so, you reform in facts what you only formally amend later in the constitution. It is less unthinkable than it seems. In any case, universal single voting rights (1919) were implemented separately from the constitution. Necessity sometimes breaks law. Or to put it another way, if the majority is there, there is room for improvisation, as the trick with Article 195 already shows.
It leads to a confusing and also risky situation. The fact that policy parties themselves send out the signal that the constitution is something that can be pushed aside if necessary or modified through a back door, gnaws at the authority of that democratic foundation. It is not of that nature to stir up so-called constitutional patriotism. And yet the advance of political extremes should motivate some vigilance among policy parties when it comes to individual fundamental rights and civil liberties.
