When I explain our history of state reforms during lectures or conferences in other federal countries, I often receive surprised reactions. Not only about the complexity of the resulting system, but also about the frequency of thorough tinkering. “Have you really made six major constitutional changes to the state structure in four decades?”
This foreign astonishment clashes with our own perception of Belgian politics as the eternal status quo: lots of banter and bickering but few upheavals. You can certainly express doubts about the outcome, but over the past half century a lot of political energy has flowed into state reform, for which the constitution has been intensively revised.
There are arguments for continuing to do so, but at the same time this community zeal stands in stark contrast to the outdatedness of other parts of our constitution, such as those on fundamental rights and democracy. For its time, the Belgian Constitution of 1831 was particularly progressive and liberal, to the extent that it inspired dozens of other countries in guaranteeing many rights and freedoms. But that lead ultimately proved to be limiting. The monument urgently needs to be renovated.
That is why five years ago your servant and some colleagues brought together about sixty academics to consider all kinds of adjustments. It resulted in a detailed report with recommendations that is unfortunately still current, because little has changed in the past five years.
A thorough debate about our constitution is therefore not an unnecessary luxury. This starts with ‘opening up’ sufficient articles so that they can be revised after the June 9 elections. The federal Vivaldi coalition hopes to make a decision on this today after falling into disagreements last week.
What will almost certainly be on her list is Article 195, which regulates the review procedure itself. This is quite cumbersome compared to other countries, because only articles declared subject to revision can be effectively amended in a subsequent administrative period. Opening a debate about this is therefore certainly legitimate.
Unfortunately, that is not the government’s motivation. No, she sees Article 195 as a passe-partout for potentially amending the entire constitution because by inserting a temporary transitional provision it can be temporarily ‘disabled’. Perhaps that is legally sound and politically convenient, but it is above all a reprehensible practice that circumvents the highest state law.
When it was already applied to implement the sixth state reform, politicians reluctantly admitted that it was not entirely fair but that they could not do otherwise ‘in the country’s interest’. The fact that they now casually declare in advance that they want to do that trick again makes it even more shameless.
But yes, CD&V obtained this during the government negotiations in 2020 to make a ‘major state reform’ possible. Remarkable for a party that is often regarded as ‘state-bearing’ and today hits us with its campaign slogan ‘Respect works’. “But certainly not for the constitution,” she would add.
The six other government parties also readily went along with this and there is no sign of indignation among the assembled opposition. When it went to war against the sixth state reform, the N-VA shouted bloody murder about the abuse of Article 195, but two years later it demanded its opening up when the Michel government was formed.
This time, apparently no party sees any strategic advantage in denouncing constitutional evasion with Article 195, which also prevents a sharp public debate. Our political culture simply does not take the Constitution very seriously.
Admittedly, the consequences are quite theoretical. The expected fragmentation and radicalization of the political landscape makes the chance of a two-thirds majority for a new state reform or other drastic constitutional changes extremely small: this may require an agreement between all parties except Vlaams Belang and PVDA. Moreover, the division of powers is not contained in the constitution but in special laws.
In any case, you may be thinking: oh well, there are more important problems than dealing with the constitution. I can understand that this issue spontaneously feels more abstract and less pressing than, say, the abolition of exit payments. But isn’t respect for the legal basis of the state an equally fundamental expectation that we can have from responsible political leaders?
