Katrien Bernard, Niels De Bruyn and Carl Kyndt (master students UGent), Jurgen Goossens (doctoral researcher, UGent) and Pieter Cannoot (assistent, UGent)

Ever since the well-known Royal Question (1950), Belgium has been suspicious of referenda. The sixth state reform, however, took a small step towards direct democracy by introducing  regional non-binding referenda. This innovation could prompt a broader discussion on changing the constitutional amendment procedure (article 195 of the Belgian Constitution) itself and the introduction of direct citizen participation in the amendment of the country’s most fundamental text.

Sixth state reform: regional non-binding referenda

Since the sixth state reform, article 39bis of the Constitution allows regions to call a non-binding referendum. This innovation aims to increase citizen participation in policy-making. Regional governments can organize referenda to ask the opinion of the citizens on a certain policy question. This kind of referendum differs substantially from a binding referendum, since the government can still decide autonomously whether to adopt the policy.

These non-binding referenda are reserved for “powers exclusively entrusted to the regional entities”. A literal reading of article 39bis could lead one to assume that only the regions are entitled to organize regional non-binding referenda, regardless of the powers they exercise. However, the preparatory documents show that such interpretation of article 39bis is incorrect, since not the entities but the ‘regional powers’ are the determining criterion for regional non-binding referenda. After all, according to article 137 of the Constitution, a special majority law can transfer certain powers of the Flemish and Walloon Region to the Flemish and French Community. Accordingly, a community could hold a non-binding referendum as long as it concerns a “regional power” transferred to the community.

According to article 39bis¸some issues cannot be the subject of a regional referendum. These are the community powers (including those transferred to the regions ), as well as finances, the budget, and all affairs requiring a special majority. In the latter case the people cannot be consulted, since these affairs already have broader democratic support. According to the Explanatory Memorandum, the exclusion of certain affairs was meant to avoid aggravating the decision-making process.

Furthermore, the preparatory documents show that the legislator excluded community powers for another reason. Inhabitants of the Brussels-Capital Region (for whom the communities are competent) cannot be divided into separate groups of voters without introducing a legally problematic sub-nationality. In this regard, Senator Moureaux posed the following rhetorical question: “Suppose the Flemish Community wants to organize a non-binding referendum about education, which inhabitants of Brussels will participate?”.

Each region is competent to establish, through an organic decree, the legal framework under which the referenda can be organized. The following essential conditions should be laid down: the possibility of a citizens’ initiative, the minimum age of referendum participants, the minimum amount of participants and the wording of the question addressed to the people. Such an organic decree requires a majority of two thirds of the cast votes and the majority of the members of the concerned parliament must be present at the vote. For the moment, regional referenda cannot take place, since the regions have not yet adopted the required decree.

According to article 142, 4th subparagraph of the Constitution, an a priori control by the Constitutional Court has to precede the organisation of any referendum. Article 30ter of the special law of January 6th 1989 on the Constitutional Court stipulates that the Court can only review the following matters: the conditions and rules provided by or by virtue of article 39bis of the Constitution, the rules concerning the division of powers, the federal loyalty in article 143, § 1 of the Constitution, Title II and articles 170, 172 and 191 of the Constitution, as well as the inter- and supranational obligations of Belgium. The Court must also examine whether the referendum complies with the organic decree and whether it is non-binding. This all happens according to an expedited procedure of sixty days at the most. This procedure is necessary to ensure compliance with the Constitution.

However, the importance of the referendum has to be nuanced, since it is non-binding. The political level therefore still has the final say. The referendum concerning the Oosterweel-connection in Antwerp, clearly highlighted this tension. The citizens voted against the so-called BAM-route for the new motorway and thus against further traffic rush in the Antwerp metropolitan area. However, the project’s political advocates interpreted the result according to their own interest: the citizens had not voted against the BAM route as such, but against the planned viaduct. Subsequently, the Flemish government kept the BAM route, exchanging the original viaduct for a tunnel. This shows that citizens do not have the final word and that elected politicians are therefore competent to interpret the outcome of a non-binding referendum. One could ask whether such a referendum is not merely window dressing or a way to gain extra time when attempting to solve a difficult issue. It is our opinion that a referendum has to be embedded in a broader social debate to allow voters to make an informed choice.

Reform of the constitutional amendment procedure: We the People

Article 195 of the Constitution contains the constitutional amendment procedure. Firstly, the legislator has to indicate the revisable articles of the Constitution. A simple majority is required. When the revision declaration is published in the Belgian Official Gazette, parliament is dissolved. Within a period of forty days elections are held. The newly elected Chambers can then amend the articles which were declared ‘revisable’. The revised articles must be approved with a special two-thirds majority in both Chambers, meaning that at least two thirds of the members of each chamber must be present and that two thirds of the members present must vote for it.

This quite rigid procedure is meant as a check against rash changes. The initial aim was to involve the voters in a potential constitutional amendment, although, in practice, this goal has not been sufficiently met.

After the long coalition negotiations of 2010-2011, an agreement was finally reached on the sixth state reform. However, this agreement required the amendment of constitutional articles which, during the previous term, were not declared revisable. Therefore, the negotiators added a transitional provision to article 195, the constitutional revision procedure itself, which had been declared revisable. The transitional provision contained a temporary deviating amendment procedure in order to execute the complete State Reform. A previous blog message has discussed this issue extensively.

The current revision procedure is thus on the one hand quite unwieldy, but can on the other hand be bypassed easily, as shown in the previous term. A revision of article 195 can be an excellent opportunity to start the debate about the desirability to allow citizens to participate directly in fundamental social choices.

Towards constitutional referenda?

When developing an alternative to the current constitutional revision procedure we can draw inspiration from the concept of ‘popular sovereignty’, according to which sovereign power is vested in the people. A revision of the constitutional amendment procedure is an excellent opportunity to allow the people to participate directly through a referendum.

To what extent would the organisation of constitutional referenda be problematic in the current constitutional framework? Article 33 of the Constitution states that the powers must be exercised in the manner dictated by the Constitution. According to the advice of May 15th 1985 of the General Assembly of the Council of State, department Legislation, binding referenda are therefore incompatible with the Constitution. According to the aforementioned advice the same applies to non-binding referenda, as they are de facto binding for the MPs. The distinction between non-binding and binding referenda was strongly downplayed in the advice since the government will also feel strongly obliged, morally and politically, after a non-binding referendum. The Council of State states that non-binding referenda are not de jure binding, but de facto binding. According to the Council of State, the non-binding character of non-binding referenda is fictitious . The Scientific Committee for Political Innovation considers this distinction artificial too. Constitutional experts such as Popelier and Velaers also share this view.

Accordingly, article 41, 5th subparagraph was incorporated in the Constitution providing for non-binding referenda concerning affairs of municipal and provincial importance and article 39bis for referenda concerning exclusively regional affairs. A (binding or non-binding) referendum on federal level could therefore only be organized when provided for in the Constitution. Up until then such a referendum would violate article 33 of the Constitution. The Constitutional Court would be competent to review the constitutionality of the law which allows popular participation.

As is the case with the regional non-binding referenda, the federal variant will need an organic law establishing all conditions and limitations. Considering the sensitivity of some federal affairs for the regions and communities, this law will need to be approved with the special two-thirds majority. It might also be advisable to exclude some constitutional articles from a (binding or non-binding) federal referendum as is the case for the regional referenda.

Since the sixth state reform, the Senate has become a full-fledged chamber of the federated entities.  The 50 senators of the federal entities represent in the Senate the interests of the federated entities on the federal level. The Senate might be a suitable body to reflect on and propose future state reforms steps. Citizens could then in a federal referendum for example vote on amendment proposals of the Senate that have reached a majority in both linguistic groups. Such a constitutional revision procedure could make the Senate a useful think-tank which builds bridges across linguistic groups and reflects on the future of our constitutional structure. During negotiations on the next state reform, a reform of the constitutional amendment procedure should be discussed.

Inspiration from abroad

The United States of America and Switzerland can serve as role models concerning this issue. Goossens’ research shows that in the United States, in 49 (!) out of 50 states a referendum is required for each constitutional amendment proposed by the legislature. In 46 states, a simple majority is sufficient to approve the constitutional amendment that was proposed by the state legislature. Moreover, in 18 states civilians can take the initiative to amend the constitution through petitioning. In Switzerland, constitutional amendments also need to be approved by the citizens first. A double majority is required. At least half of the population eligible to vote must approve the proposed amendment in a referendum. Furthermore 12 out of the 24 cantons (the Swiss federated entities) must approve it. Switzerland is therefore an interesting case study. Although it is a multi-lingual country like Belgium, its diversity does not cause insurmountable problems between the federated entities. On the contrary, the referenda’s results show that the discrepancies between the Francophone and German-speaking population are decreasing.

Concise bibliography:

  1. J. Velaers, “De gewestelijke volksraadpleging en het Grondwettelijk Hof, de constitutieve autonomie van gemeenschappen en gewesten en de (niet-)samenvallende Europese, federale en deelstatelijke verkiezingen” in J. Velaers, J. Vanpraet, Y. Peeters en W. Vandenbruaene (eds.), De Zesde Staatshervorming. Instellingen, bevoegdheden en middelen, Antwerpen, Intersentia, 2014, 243-257.

The regional non-binding referendum and the Constitutional Court, the constitutive autonomy of Communities and Regions and the (non-) coincident European, federal and federated state elections

  1. E. Maes, “Borrelnootjes voor het Grondwettelijk Hof: een beperkte uitbreiding van wie, wat en hoe” in A. Alen e.a. (eds.), Het federale België na de Zesde Staatshervorming, Brugge, die Keure, 2014, 215-220.

Coated peanuts for the Constitutional Court: a limited expansion of who, what and how

  1. Voorstel van bijzondere wet tot wijziging van de bijzondere wet van 6 januari 1989 op het Grondwettelijk Hof en de bijzondere wet van 12 januari 1989 met betrekking tot Brusselse Instellingen teneinde de organisatie van gewestelijke volksraadplegingen toe te laten, Parl. St. Kamer 2012-13, nr. 53-2968/001, 4.

Proposal of the Belgian Chamber of Representatives of a revision of the law to allow regional non-binding referenda

  1. Voorstel tot invoeging van een artikel 39bis in de Grondwet, Parl. St. Kamer 2013-14, nr. 53-2966/001, 3-6.

Proposal of the Belgian Chamber of Representatives of a revision of article 39bis of the Belgian Constitution

  1. Voorstel tot herziening van artikel 142 van de Grondwet, Parl. St. Kamer 2013-14, nr. 53-2971/001, 3.

Proposal of the Belgian Chamber of Representatives of a revision of article 142 of the Belgian Constitution

  1. Ontwerp van tekst houdende invoeging van een artikel 39bis in de Grondwet en Ontwerp van bijzondere wet tot wijziging van de bijzondere wet van 6 januari 1989 op het Grondwettelijk Hof en van de bijzondere wet van 12 januari 1989 met betrekking tot de Brusselse Instellingen, teneinde de organisatie van gewestelijke volksraadplegingen toe te laten, Parl. St. Senaat 2013-14, nr. 5-2372/3, 9.

Parliamentary preparations of the Belgian Senate-Draft of article 39bis of the constitution and a draft of a revision of the law to allow regional non-binding referenda

  1. J. Velaers “Artikel 195, overgangsbepaling: een tijdelijke versoepeling van de procedure voor de herziening van de Grondwet” in J. Velaers, J. Vanpraet, Y. Peeters en W. Vandenbruaene (eds.), De Zesde Staatshervorming. Instellingen, bevoegdheden en middelen, Antwerpen, Intersentia, 2014, 1-15.

Article 195, transitional provision: a temporary flexibilisation of the procedure for the revision of the Constitution

  1. P. Popelier, “De truc met artikel 195: een lapje voor het bloeden met de zegen van Venetie¨, CDPK, 2012, 421-443.

The trick with article 195: a patch for the bleeding with the blessing of Venice

  1. J. Goossens, “Deur toch op een kier voor zevende staatshervorming?”, Juristenkrant 12 maart 2014, afl. 285, 10.

Door still slightly opened for a seventh state reform?

  1. J. Velaers, “Het referendum en de volksraadpleging in grondwettelijk perspectief” in F. Fleerackers (ed.), De Re Ferenda : een meta-juridische conflictanalyse van het referendum, Brussel, Larcier, 2001, 145-197.

The binding and the non-binding referendum in Constitutional prospect

  1. Advies van de Raad van State, nr. 15.853-15.854/AV en nr. 15.969-15.971/AV, Parl. St. Kamer 1985-86, nr. 783/2; Advies van de Raad van State, nr. 33.789/AV en nr. 33.791/AV, Parl. St. Vl. Parl. 2001-2002, nr. 1131/3.

Advice of the Belgian Council of State

  1. E. Lancksweerdt, “Een ontwikkelingsgerichte kijk op volksraadplegingen”, TBP 2011, afl. 5, 275-277.

A development-oriented view on non-binding referendums

  1. J. Goossens, “Direct Democracy and Constitutional Change: Institutional Learning from State Laboratories in the USA”, Int’l J. Const. L. Blog, July 18, 2014, available at: http://www.iconnectblog.com/2014/07/direct-democracy-and-constitutional-change-institutional-learning-from-state-laboratories-in-the-usa
  2. https://www.ch.ch/fr/referendums

About Referendums in Switzerland

  1. https://www.ch.ch/fr/initiatives-populaires

About Popular initiatives in Switzerland

Image source

Print Friendly, PDF & Email
Share on Social Media

Leave a Comment

Your email address will not be published. Required fields are marked *