See Dutch version below

Maarten De Sweemer & Jonas Bel (master students Advanced Study of Constitutional Law, UGent), Jurgen Goossens (doctoral researcher, UGent) & Pieter Cannoot (academic assistant, UGent)

Overview sixth state reform: part 1 of 6

Amendment of article 195: the Constitution a scrap of paper?

“We urge the politicians to hold a debate in the upcoming years about modernising the constitutional amendment procedure instead of applying the trick with article 195 of the Constitution again.”

The implementation of the sixth state reform (2012-2014) has shown that the constitutional amendment procedure is at odds with the current Belgian federal cooperation model[1]. In order to implement this state reform, the Chamber of Representatives has temporarily changed the constitutional amendment procedure in article 195 of the Constitution with a two-thirds majority on March 15, 2012. The Representatives added a divergent ‘transitional provision’ to article 195. This revision of article 195 provoked a lot of criticism and has finally been examined by the European Commission for Democracy through Law, the so-called Venice Commission.

After Open VLD (Flemish Liberals) elicited the end of the government of Prime-Minister Leterme, the Belgian citizens were obliged to vote on June 13, 2010. In Flanders, the N-VA (New-Flemish Alliance) convincingly won the elections, while the PS (French-speaking Socialist Party) won in Wallonia. The subsequent negotiations to establish a government and agree on a new state reform were extremely difficult and lasted 541 days! Undoubtedly, Belgium may claim the world record for the longest time frame to compose a government.

Agreement after 541 days

After extremely long negotiations, the politicians finally reached an agreement about the sixth state reform, the so-called Butterfly Agreement. Hereafter, the political agreements had to be converted into legislation. However, the implementation of certain parts of the agreement required the amendment of constitutional provisions which were not declared to be revisable. As a result, the compromise on the sixth state reform could actually only be implemented with regard to the constitutional provisions which were susceptible for revision in this term.[2] The other provisions could only be amended after the elections of 2014. Nonetheless, waiting was not an option for the constitutional majority which had just reached the finish line after 541 negotiation days.

Obsolete amendment procedure of article 195[3]

Article 195 of the Constitution describes the constitutional amendment procedure. The procedure contains three phases. Firstly, Parliament adopts a list of constitutional provisions which are ‘declared to be revisable’. After the approval of this list follows the dissolution of Parliament and new elections. After the elections, the newly composed Parliament has the power to amend (only) the constitutional provisions which were declared to be susceptible for revision. In order to amend the constitution, two thirds of the members of each Chamber of Parliament (the Senate and the House of representatives) ought to be present and two thirds of the present members must approve the constitutional amendment.

The current procedure exists since 1831 and there were legitimate reasons for its adoption. It was the aim of this rigid procedure to avoid that an accidental political majority could substantially change the Constitution without prior consultation of the voters.

Controversial ‘transitional provision’

The policy makers have used their creativity in order to be able to integrally implement the sixth state reform without the approval of a new revision statement and without the organisation of new elections. The list of constitutional provisions which were announced to be susceptible for revision did not contain all provisions required for the implementation of the agreement on the sixth state reform. Nonetheless, the list included article 195 of the Constitution, namely the constitutional amendment procedure itself. Thus, the negotiators decided to add a transitional provision to this article, which was only valid during the same legislative term and which permitted to immediately revise the necessary constitutional provisions. From a strictly legal perspective, it was allowed to amend article 195 in this way, even though it is susceptible to substantial criticism. The constitutional amendment procedure and its guarantees were temporarily set aside.

The opposition party N-VA inter alia referred to article 187 of the Constitution, which forbids a partial or entire suspension Constitution. They argued that the transitional provision does not regulate the transition from an old to a new arrangement, but in fact results in a temporary suspension of the Constitution.[4] From the beginning of the following legislative term, the ordinary amendment procedure was again the applicable law. Nevertheless, it is remarkable that at the time the N-VA itself was still involved in the negotiations, they also launched several proposals which required the revision of more articles than those susceptible for revision. It seems highly unlikely that the N-VA would have waited another legislative term rather than using some constitutional high-tech. Of course it is the duty of the opposition to oppose.

Guarantees of article 195?

It has already often been argued that the amendment procedure in article 195 of the Constitution is too rigid[5]. Legal scholars have regularly questioned whether the aims of this procedure outweigh the adverse effects.

In theory politicians aimed to ensure that the citizens could give their opinion during the elections about the constitutional amendments that parliament wanted to achieve. In practice, however, parliament (ab)uses the approval of a revision statement as the standard procedure to rescind parliament and organise new elections. Afterwards, the election campaign is dominated by general policy issues rather than a thorough debate about the revision statement.

Furthermore, it was the intention of this article to avoid a rash approval of constitutional amendments. The Constitution contains and guarantees the fundamental basic principles which are essential for the rule of law. Consequently, the Constitution cannot be amended through the regular legislative procedure. The rigid procedure is the guardian of the fundamental character of the Constitution, which is more than “a scrap of paper”.

Blessing of Venice

The N-VA brought this case before the Venice Commission of the Council of Europe to review the temporary revision of article 195 of the Constitution. The Venice Commission focuses on the improvement of democracy and the rule of law.

The Venice Commission argued that the amendment procedure ought to safeguard some important guarantees, but at the same time stated that in practice these aims are not always fully accomplished. As a result, the Venice Commission refuted the arguments of the opposition regarding the guarantees of article 195. Furthermore, the Commission decided that article 195 of the Constitution was not just suspended though indeed has been altered. On 20 June 2012, the Venice Commission thus ruled that the ‘transitional provision’ did neither violate with the letter and the spirit of the Constitution nor international norms and standards.

Last word about article 195 has not yet been said

Although the Venice Commission ruled that the transitional provision was not unconstitutional, this ‘trick’ can still be criticised. The trick could be used as a precedent, so that in the future only one article, namely article 195 of the Constitution, will be declared susceptible for amendment. “After elections, the new parliament then has the power to change every article of the Constitution. A dangerous evolution”[6], says Matthias Storme. Such an evolution indeed undermines the essential guarantees of article 195.

A debate should be initiated about a more sustainable reform of article 195. Some politicians are reluctant to discuss such a reform, as they fear that a simplification of the amendment procedure would make further devolution to the regions and communities and thus a dismantlement of the federal level too easy.

At the end of September 2014, the Chamber of Representatives held a debate about the government policy statement. The intention to include article 195 in the revision statement at the end of the current legislative term has not been mentioned in the coalition agreement of the government of Prime-Minister Michel, despite the wish of N-VA to include this intention. We urge the politicians to hold a debate in the upcoming years about modernising the constitutional amendment procedure instead of applying the trick with article 195 of the Constitution again. To be continued…

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

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

[2] J. Mollin, “De Grondwet, een vodje papier”, Juristenkrant 2013, no. 246, 10-11.

The Constitution, a scrap of paper

[3] P. Peeters, “De ‘overgangsbepaling’ van artikel 195 van de Grondwet: een noodzakelijke voorwaarde voor de uitvoering van de zesde staatshervorming’, TBP 2013, 379-388.

The ‘transitional provision’ of article 195 of the Constitution: a necessary condition for the implementation of the sixth state reform of the state

[4] P. Vandernoot, “La révision de l’article 195 de la Constitution du 29 mars 2012: ‘Ceci (n’)est (pas) une révision’” in J. Sautois en M. Uyttendaele (eds.), La sixième réforme de l’Etat (2012-2013). Tournant historique du soubresaut ordinaire?, Limal, Anthemis, 2013, 13-80.

The revision of article 195 of the Constitution of 19 March 2012: ‘This (not) a revision’

[5] J. Van Nieuwenhove, “De nieuwe ‘overgangsbepaling’ bij artikel 195 van de Grondwet. Een herbruikbare tijdelijke afwijking van de herzieningsprocedure?”, TVW 2012, 156-172.

The new ‘transitional provision’ of article 195 of the Constitution. A reusable temporary deviation of the amendment procedure

[6] Translated from Dutch.

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