The first and written unitarian constitution of
Belgium dates back to
1831.
Belgium is a
parliamentary monarchy that applies the principle of ministerial responsibility for the government policy and honours the separation of the legislative, executive and judicial power. Initially, the
Constitution was very centralistic. However, since
1970, and in the course of the successive state reforms,
Belgium has been gradually transformed into a
federal state.
The last radical change of the
Constitution was carried out in
1993 after which it was published in a renewed version (
Belgian Official Journal).
One of the most important changes was the introduction of the
Court of Arbitration whose competencies were expanded by a Special law of 2003, to include the Section II (Articles 8 to 32), and the Articles 170, 172 and 191 of the Belgian Constitution. The Court is therefore developing into a
constitutional court and in May 2007 it was officially redesignated
Constitutional Court of Belgium.
The federal Belgium, its composition and territory
In
1831 Belgium was a centralised state organised in three levels: the national level, provinces and municipalities. The federalisation of
Belgium added a regional level to the existing structure. According to the Constitution
Belgium is a federal state comprised of communities and regions.
The regional level consists of two kinds of federal entities: communities and regions. According to article 2 there are the
Flemish Community, the
French Community and the
German-speaking Community. The regions are the following: the
Flemish Region, the
Walloon Region and the
Brussels-Capital Region (article 3).
Belgium comprises four language areas: The Dutch-language area, the French-language area, the bilingual area of Brussels-Capital and the German-language area. Each municipality of the Kingdom is part of (just) one of these four language areas, of which the borders can be changed or corrected only by a law supported by specific majorities of each linguistic group of each Chamber (article 4).
Article 5 divides the Flemish Region and the Walloon Region into five
provinces each and foresees possible future provincial redivisions of the Belgian territory. Article 6 determines that the provinces can be subdivided only by Law. The borders of the State, provinces and
municipalities can be changed or corrected only by Law (article 7).
In
2007, a Title 1bis was inserted in the Belgian Constitution, titled "General policy objectives of the federal Belgium, the communities and the regions", which to date comprises only one article: Article 7bis. This article states the following: "In the exercise of their respective competences, the federal State, the communities and the regions shall strive for the objectives of a
sustainable development in its social, economic and environmental dimensions, taking into account the solidarity between the generations."
The act inserting this article was published in the
Belgian Official Journal on
April 26,
2007. It is possible the current wording of Article 7bis will be modified as it was declared revisable by the
Federal Parliament and the
Federal Government prior to the
2007 federal election, which means that the new Federal Parliament that was elected on
June 10,
2007 has the power to amend the article in question.
[1]
The Belgians and their rights
Title II of the Belgian Constitution is titled ''The Belgians and their rights''. In this title a number of rights and freedoms are enumerated. Although the Constitution speaks of the rights of the Belgians, in principle they apply to all persons on Belgian soil. In addition to the rights enumerated in Title II of the Constitution, the Belgians also enjoy the rights enshrined in the
European Convention on Human Rights.
Articles 8 and 9 determine how the Belgian nationality can be obtained. Article 8 also stipulates that the law can grant the right to vote in elections to
citizens of the European Union who don't have the Belgian nationality, in accordance with Belgium's international and supranational obligations, and to non-EU citizens. Article 9 stipulates that
naturalisation can only be granted by the federal legislative power, however, Article 74 of the Constitution stipulates that only the
Chamber of Representatives, and not the
Senate, can grant naturalisation.
Article 10 determines that all Belgians are
equal before the law. Article 11 determines that the rights and freedoms must be guaranteed without
discrimination. Article 12 guarantees the liberty of the person and stipulates that no one can be prosecuted except in the cases determined by the law and in accordance with the procedures established by law. Article 13 determines that everyone has the right to go to court. Article 14 guarantees the application of the principle of ''
nulla poena sine lege'' (
Latin: "no penalty without a law"). There is also an Article 14bis, which was inserted in the Belgian Constitution in
2005, that states as follows: "The death penalty is abolished".
Articles 15 of the Constitution guard against unreasonable
searches. It determines that the
domicile is inviolable and that searches can only take place in the cases and the manner the law prescribes. Article 16 stipulates that no one can be deprived of his or her property except when it's in the
public interest, in the cases and the manner the law prescribes, and that fair and prior compensation must be made.
Article 17 of the Constitution stipulates that the penalty of
forfeiture of (all) assets cannot be instituted. Article 18 further stipulates that the penalty of
civil death is abolished, and that it cannot be brought back into force. Civil death was a penalty in Belgium in the
Ancien Régime.
Articles 19 to 21 guarantee the
freedom of religion. Article 19 protects the freedom of religion and the right to exercise it publicly. It also guarantees the
freedom of speech by stipulating that everyone has the right to express his or her opinion freely. However, Article 19 also determines that abuses of these freedoms can be punished, a principle which is controversially applied in the
Belgian Holocaust denial law, which made it an offence to publicly "deny, minimise, justify or approve of the genocide committed by the German
National Socialist regime during the
Second World War".
Article 22 determines that everyone has the right to respect for his or her private life and for his or her family life. Exceptions can only be instituted by law. Article 22bis stipulates that every child has the right to respect for his or her "moral, physical, mental and sexual integrity".
Article 23 protects the right to lead a life in conformity with
human dignity. This right specifically encompasses the following rights:
★ the right to work and free choice of employment, within the framework of an employment policy aimed at ensuring a stable and high level of employment, to just conditions of work and fair remuneration, as well as the right to information, consultation and collective bargaining;
★ the right to
social security, to
health care and to social, medical and legal assistance;
★ the right to decent housing;
★ the right to the protection of a healthy environment; and
★ the right to cultural and social development.
Article 24 protects the
freedom of education and the parents' right to choose. It also stipulates that the
community must provide
neutral education, and that this neutrality includes, among others, the respect for the philosophical, ideological and religious views of parents and pupils. The third paragraph of this article determines that everyone has the right to education, with respect for the fundamental rights and freedoms, and that education shall be free in its
compulsory stages. (In
Belgium, education is compulsory until the age of 18.)
Article 25 of the Constitution guarantees the
freedom of the press and stipulates that
censorship can never be established. Article 26 protects the
freedom of assembly by determining that everyone has the right to gather peaceably and without arms. Article 27 guarantees the
freedom of association. Article 28 ensures the
right to petition the public authorities. Article 29 determines that the
confidentiality of letters is inviolable.
Article 30 stipulates that the use of the languages spoken in Belgium is free. It further stipulates that the use of a specific language can only be imposed by law and only for the proceedings and acts of the public authorities and for
legal proceedings. Article 31 of the Constitution determines that no prior authorisation is required to prosecute
civil servants for acts of their administration. Article 32 stipulates that everyone has the
right to consult any administrative document and to obtain a copy thereof, except as provided by law or decree.
Since
2003, the Belgian
Court of Arbitration, which is known now as the Constitutional Court, can examine whether laws, decrees or ordinances are in compliance with Title II and with Articles 170, 172 and 191 (on the equality of Belgians and foreigners and the prohibition of tax discrimination) of the Constitution. When interpreting the rights enumerated in Title II of the Constitution, the Constitutional Court also applies the
European Convention on Human Rights in order to prevent different interpretations of the same principles.
The Powers
Title III of the Belgian Constitution is titled ''The Powers''. It consists of Articles 33 to 166 and is subdivided into eight chapters, four of which are further subdivided into several sections. It is by far the largest title of the Constitution. In this title, the Belgian
system of government is outlined, in accordance with the principle of the
separation of powers. Article 33 of the Constitution, the first article of Title III, states as follows:
Article 34 of the Constitution expressly stipulates that the exercise of certain powers or responsibilities can be attributed to international public institutions by treaty or by law. This refers, among others, to
Belgium's membership in the
European Union.
Article 36 grants the federal legislative power to the
King, the
Chamber of Representatives and the
Senate. Although it states that the federal legislative power must be exercised jointly by its three components, in practice only the
Federal Parliament, which consists of the Chamber of Representatives and the Senate, exercises the federal legislative power. However, laws still require the King's signature.
Article 37 vests the federal executive power in the King, but in practice it is exercised by the
Federal Government.
Article 38 and 39 define the competencies and responsibilities of the
Communities and the
Regions. Article 38 provides that each Community has the competencies that are granted to it by the Constitution or by the laws adopted pursuant to the Constitution. Article 39 provides that a law adopted with a qualified majority can assign competencies to the regional organs which it establishes.
Article 40 vests the judicial power in the courts and tribunals and provides that their rulings and decisions are carried out in the King's name.
Article 85 of the Belgian Constitution vests the King's constitutional powers in the offspring of
Leopold I.
Chapter I, which is titled ''The federal Chambers'', establishes the composition, manner of election, qualifications of members and organisation of the bicameral
Federal Parliament, which consists of the
Chamber of Representatives and the
Senate. It is divided into three parts: the first part contains the provisions that are common to both Chambers whereas the two other parts, Section I, titled ''The Chamber of Representatives'', and Section II, titled ''The Senate'', include provisions that only apply to one of the two Chambers.
Chapter II, which is titled ''The federal legislative power'', describes the powers of the
legislative branch. Article 74 determines the cases in which the federal legislative power is exercised only by the King and the
Chamber of Representatives, and not by the
Senate. Article 75 stipulates that each branch of the federal legislative power has the right of initiative. This means that both the members of the Chamber of Representatives or of the Senate and the
King, in practice the
Federal Government, have the right to propose bills. Article 77 determines the matters with respect to which the Chamber of Representatives and the Senate have equal competence. Articles 78 to 83 further outline parliamentary procedure and the relations between both parts of the
Federal Parliament.
Chapter III, which is titled ''The King and the Federal Government'', consists of the Articles 85 to 114. It is divided into three sections. Section I, titled ''The King'', establishes the
monarchy, the method of
succession and contains provisions regarding the regency. Section II, titled ''The Federal Government'', establishes the
Federal Government and the method of appointment of its members. Section III, titled ''The competences'', defines the constitutional powers of the King, which are, in practice, exercised by the Federal Government.
Chapter IV, which is titled ''The Communities and the Regions'', contains the Articles 115 to 140. It is divided into two sections, which are in turn subdivided into subsections. Section I is titled ''The organs'' and establishes the organs of the Communities and the Regions and their functioning. It is subdivided into two subsections on, respectively, the Community and Regional Parliaments and the Community and Regional Governments. Section II is titled ''The competences'' and further defines the competences and responsibilities of the Communities and the Regions. It is subdivided into three subsections on, respectively, the competences of the Communities, the competences of the Regions and one containing special provisions relative to these competences.
Chapter V, which is titled ''The Constitutional Court, conflict prevention and resolution'', contains the Articles 141 to 143. It is divided into three sections, each of which contains only one article: Section I on the prevention of competency conflicts, Section II on the
Constitutional Court and Section III on the prevention and resolution of conflicts of interest. Article 143 determines that the federal State, the Communities, the Regions and the
Common Community Commission, in the exercise of their respective competences, must observe the federal loyalty.
Chapter VI, which is titled ''The judicial power'', describes the organisation of the Belgian court system. It contains the Articles 144 to 159. Article 147 establishes the
Court of Cassation. Article 150 establishes the jury for all felonies and for political offences and press-related offences. In
1999, this article was amended to include a provision that "press-related offences inspired by
racism or
xenophobia" are not tried by a jury. Article 151 establishes the
High Council of Justice and the manner in which judges are appointed. Article 156 establishes five
Courts of Appeal: one in
Brussels,
Ghent,
Antwerp,
Liège and
Mons. Article 157 stipulates that
military courts can be created in wartime. It also stipulates that there are
Commercial Courts,
Labour Courts and so-called Penalty Application Tribunals.
Chapter VII, which is titled ''The Council of State and the administrative jurisdictions'', contains the Articles 160 and 161 and establishes the
Council of State. It also provides that no administrative jurisdiction can be established except by law.
Chapter VIII, the last chapter of Title III of the Constitution, is titled ''The provincial and municipal institutions''. As its title suggests, this chapter describes the organisation of the institutions of the
provinces and the
municipalities of
Belgium. It contains the Articles 162 to 166. Article 162 establishes the principles of the organisation of the provincial and municipal institutions, such as the direct election of the members of the provincial and the municipal councils. Article 163 stipulates that the functions of the provincial organs are exercised in the extraprovincial
Brussels-Capital Region by the institutions of the
Flemish Community, the
French Community, the
Common Community Commission and the Region. Article 165 provides that the law can create agglomerations and federations of municipalities. It also describes the functioning of these agglomerations and federations. Article 166 describes how the preceding article applies to the municipalities of the
Brussels Region.
Historical aspects
On
November 25 1830 a draft for the constitution, elaborated by a commission nominated by the
Provisional Government, was submitted for vote to the
National Congress. Finally, the Congress approved the constitution on
February 7 1831.
The Belgian constitution is a synthesis of the
French constitutions of 1791,
1814 and
1830,
Dutch constitution of
1814 and the English constitutional laws. However, the resulting constitutional text is an original creation. Its basic principles are still in use today. Only in 1967 an official Dutch version of the
Constitution was accepted
[2].
Belgium is a
constitutional monarchy sometimes called a
popular monarchy.
Constitutional amendments
The Belgian Constitution can be amended by the federal legislative power, which consists of the
King (in practice, the
Federal Government) and the
Federal Parliament. The amendment process is governed by the provisions of Title VIII of the Constitution, which is titled ''The revision of the Constitution''. In order to amend the Constitution, the federal legislative power must declare that there are reasons to revise the Constitution, in accordance with Article 195 of the Constitution. This is done by means of two so-called declarations of revision of the Constitution, one adopted by the
Chamber of Representatives and the
Senate, and one signed by the King and the Federal Government.
Following this declaration, the Federal Parliament is automatically dissolved and a new
federal election must take place. This makes it impossible to amend the Constitution unless an election has intervened. Following the election, the new
Federal Parliament can amend those articles that have been declared revisable. Neither chamber can consider amendments to the Constitution unless at least two thirds of its members are present and the Constitution can only be amended if at least two thirds of the votes cast are in favour of the amendment.
There are further restrictions on the power of the Federal Parliament to amend the Constitution. Article 196 of the Constitution provides that the process to amend the Constitution cannot be initiated or continued in times of war or when the Federal Parliament is unable to freely meet in
Belgium. Article 197 also provides that the provisions relating to the
King's constitutional powers cannot be amended during a
regency.
The Belgian Constitution has been amended 23 times since
1993: once in
1996, thrice in
1997, four times in
1998, twice in
1999 and in
2000, once in
2001, twice in
2002 and in
2004, and thrice in
2005 and in
2007. The most recent changes to the Constitution took place on
May 7,
2007, when the Court of Arbitration was formally renamed
Constitutional Court, in order to better reflect the jurisdiction of the court.
References
1. Duurzame ontwikkeling ingeschreven in de Grondwet Maarten Vidal
2. [1] Ethnic structure, inequality and governance of the public sector in Belgium, Kris Deschouwer, VUB, January 2004
External links
The three legal versions of the Constitution:
★
De Belgische Grondwet ★
La Constitution Belge ★
Die Verfassung Belgiens English translation, not recently updated and without legal value:
★
the Constitution
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