Stefan Grazidei, PhD student at the Faculty of Law, University of Antwerp.

http://www.bpol.be/afbeeldingen/actua/201207131nieuweKieskringVLBrabant.jpgOver the last years, the Belgian Constitutional Court has been confronted with an array of legal challenges to the institutional agreement on the sixth state reform. The latest of these attempts to judicially unwind the reform was decided by the Court at the end of May 2015. The Flemish nationalist party N-VA had petitioned the Court. Object of the controversy was the long disputed Brussels Halle Vilvoorde electoral district (BHV). Although split for the Chamber of Representatives, BHV continued to exist for the election of the so-called “coopted” senators. The decision impinges on the broader territoriality v. personality debate in Belgian constitutional law and shows the Court’s rather prudent approach in politically salient cases that divide Belgian language communities.

French and Dutch speakers in Belgium are divided about which principle defines and should define Belgian constitutional law and politics: the personality or the territoriality principle. While the principle of territoriality attaches linguistic and cultural rights to a specific territory within the country, the principle of personality allows for these rights to travel with the person. Dutch speakers have insisted on a strong territoriality principle as a safeguard to defend their linguistic, cultural and territorial autonomy, while French speakers have found the personality principle most congenial to their cultural, philosophical and strategic interests. Late Belgian Prime Minister Jean Luc Dehaene defined Belgium as a “schizophrenic” country: same as the split (“schizophrenic”) mind, Belgium had multiple personalities that tore the country into opposing directions. One was represented by the territoriality, the other by the personality principle.

The case is a secondary battle in this larger turf war. Most battles have been fought, and most stories in the chain novel of Belgian constitutional law have been written. The few remaining areas of friction are the rights of French speakers in the Brussels periphery. The decision remains interesting for the political nature and object of the controversy rather than for its doctrinal implications (the debate on the legal status of the travaux preparatoires excepted).

The broader question the applicants wanted the Court to answer is whether electoral constituencies must be in line with the territoriality principle. Flemish nationalists saw it as a blatant violation of the territoriality principle that French speaking voters in Halle-Vilvoorde (Flemish language region) would still have a say in electing French speaking senators. Brussels Halle Vilvoorde (BHV), as the only electoral district trespassing the internal language border, had been at the center of political conflict for the last decades.

Le nouveau BHV est betonné

The sixth state reform brought about important institutional changes touching the Senate. The Senate is now composed for the most part by delegates from the parliaments of the regions and communities, who exercise a double mandate. However, ten senators remain freely appointed (“coopted”) by political parties, but their seats are distributed between political parties on the basis of their election results in the Chamber of representatives.

After the BHV split, one would have expected that all senators are elected in line with the territoriality principle, as is (mostly) the case for the Chamber. In an interesting twist however, the constitutionality majority and the special majority decided otherwise. The old BHV electoral district was resuscitated, but only for the coopted senators. More technically, the special majority law sneaked in an Article 217quarter and quinquies into the Belgian electoral code specifying constituencies for coopted senators. This new BHV district for Senate elections seemed to sit uneasily with the territoriality principle.

The Flemish nationalist opposition was not amused. The reform meant that votes for French speaking parties cast in the “electoral cantons” of Halle and Vilvoorde would be counted for the determination of the relative weight of the French speaking political parties when assigning coopted senators. Flemish nationalists N-VA and Vlaams Belang spotted the intruder: “De conclusie is dan ook zeer duidelijk: le nouveau BHV est arrive(The conclusion is very clear: the new BHV has arrived.)

The Flemish nationalist parties petitioned the Constitutional Court, hoping that they could win back what the other Flemish parties had to give up on the negotiating table. Their overall aim was to split BHV also for the elections of co-opted senators.

The legal case

The legal case of the N-VA rested on three elements: 1) the 2003 BHV precedent, 2) the limited applicability of the travaux preparatoires in constitutional interpretation, and 3) the one sidedness of discrimination.

First, the applicants argued that Flemish voters and candidates were discriminated, because they faced competition from French speaking candidates. They referred to the Constitutional Court’s 2003 BHV decision. In that decision, the Court had found a discrimination of candidates in the province of Flemish Brabant because they were treated differently from candidates in other constituencies. 

Second, they tried to convince the Court that the will of the Constituent has to be visible from the text of the Constitution, and not so much from its travaux preparatoires. They argued that there is nothing such as “the” will of the Constituent, except in the plain text of the Constitution. The travaux preparatoires therefore did not reflect a supreme will, but only the personal opinions of the politicians who intervened in these debates. The applicants disputed the legal value of the travaux preparatoires in constitutional interpretation.

Third, they argued that the discrimination was in one direction only and not offset by another compensating advantage. While French speakers living in Halle and Vilvoorde (Flanders) had their votes counted for the coopted senators, the Dutch-speaking minority in Wallonia didn’t. The challenged law, they concluded, was not justified by a general equilibrium between language communities, because it discriminated against one community – the Dutch speakers – only.

However, French and Dutch speaking political majorities had constitutionalized the main politico-institutional pillars of the state reform. In Belgium, this is figuratively rendered as pouring into (constitutional) concrete (betonneren/bétonner) key political compromises. One of the key points on which the case would be decided namely was the intent of the Constituent. The challenged law was enacted by the special legislator and not by the Constituent. Referring to the travaux preparatoires, the government argued that the revision of the Constitution had to be read together with the adoption of the special majority law (see decision, A.10.1). For the government, Constituent and the special legislator shared the same will on the Senate constituencies. The applicants argued that there was no legal link between the special law and the Constitution, since the text remained silent on it. On the contrary, the special law was in violation of the Constitution. An important element for deciding the case was the extent of the link between the special law and the Constitution.

The decision

The Court rejected the applicants’ arguments. Article 68§2 of the Constitution fixes constituencies for coopted senators with reference to a special majority law. The special law that modified the Belgian electoral code (Art.217quarter) states that the votes counted for the designation of French speaking senators include ballots cast in the “administrative district Halle-Vilvoorde”. The Council of State had waved through the law. During the travaux preparatoires, the government had denounced the “myth” that constituencies need to overlap with the territory of a language region. The legislative history constrained the interpretive choices of the Court, but did not necessarily predetermine it.

The Court dismissed the case: the difference in treatment was a deliberate choice of the Constituent. The Court cautioned that the Constituent’s choice should in principle emanate directly from the constitutional text. But in this case the travaux preparatoires were sufficient to link the special law with the Constitution. In the Court’s words, the travaux preparatoires gave “undeniable” evidence of the Constituent’s will: “the Constituent not only knew about the challenged electoral constituencies, but specifically embraced this choice (B11.2).” Both the special law and the Constitution had to be read together. Once a specific choice of the Constituent is established, the Court stops and declares itself not competent to go any further: “the Court is not competent to rule on a difference in treatment or a limitation of a fundamental right that is based on the Constituent’s will.” (paras B.11.2 and B.12)

Low political salience but still a matter of principle

Notwithstanding shoutingly vocal opposition in parliament, the “new” BHV did not deepen inter-community rifts in Belgium’s population. A burningly “hot potato” a decade ago, BHV had considerably cooled down since the sixth state reform agreement. A former constitutional court president told me that BHV did not divide the country any more: “BHV ne chauffe plus”. The low salience was impressively captured by the absolute silence of Belgian media on the decision.

In addition, the present challenge was devoid of much practical significance. The law on coopted senators basically made sure that all four French speaking parties got one seat each (although their share of vote varied widely). Rather than running separately for elections, all French speaking political parties rallied their forces in a “Francophone Union” list for the constituency of Flemish Brabant. For this reason, the Halle-Vilvoorde votes did not matter at all.

French and Dutch-speaking parties were fighting this battle as a matter of principle. Patricia Popelier unveiled the strategic reasons behind this struggle over BHV:“[t]he francophone parties opposed the scission [of BHV] as fiercely as the Flemish parties fought for it, for strategic reasons which were hardly concealed: the maintenance of the electoral (and judicial) district would, along with facilities, help create a corridor between Wallonia and Brussels, making it easier to claim Brussels after a possible secession by Flanders.” Long term group strategy motivated the quarrel over Senate BHV rather than electoral interests.

Consensus deals survive in Court

Over the last year, the Court rejected all three Flemish nationalist (N-VA and/or Vlaams Belang) backed challenges to the institutional agreement on the sixth state reform. First, the Court dismissed petitions against the jurisdiction of the bilingual section of the Council of State over disputes arising for the non-nomination of mayors in the Brussels municipalities with language facilities (57/2014 and 58/2014, 3 April 2014). Second, the challenges against the special voting facilities for French speakers in these same municipalities were equally rejected (72/2014, 8 May 2014). Third, the essential elements of the judicial BHV reform survived Court scrutiny, except for the power sharing provision that the chief prosecutor of Brussels had to be a French speaker (96/2014, 30 June 2014). The essential elements of the consensus deals passed court scrutiny unscratched.

All these cases show that the Court is unwilling to unravel a sensitive political equilibrium that has been negotiated for years and that has been cemented by constitutional changes and laws approved by a special majority. Following the words of Belgium’s Council of State, and borrowing from familiar Convention vocabulary, the legislator’s ‘margin of appreciation’ will be “all the greater the more it is based on a strong cross-community consensus” (51.214/AG of 2 May 2012). The differences over personality and territoriality principles will persist, as will strategic litigation on communitarian issues. The bottom line is that it is increasingly difficult to draw a reluctant Court into deeply communitarian fights, in particular when increasing political polarization in Belgium’s “two democracies” risks to suffocate the long appraised culture of Belgian compromises.

 

The author wishes to thank Werner Vandenbruwaene for his comments to the text.

 

Essential bibliography

Alen, Andre. Féderalisme personnel et territorial en Belgique [Personal and territorial federalism in Belgium], in Thomas Fleiner, Jean-Daniel Nordmann, Thomas Fleiner-Gerster (ed.) Federalism: A Tool for Conflict Management in Multicultural Societies with Regard to the Conflicts in the Near East : a la Mémoire de Jean Nordmann (LIT, Münster, 2008), 59-80.

Council of State advice and travaux preparatoires – Senate document 5-1745 and Chamber document 53-3186.

Laborderie, Vincent. “BHV : le cauchemar oublié”, 40 Outreterre 2014, 241-50.

Popelier, Patricia. ‘Secessionist and Autonomy Movements in Flanders: the disintegration of Belgium as thechronicle of a death foretold?’ in E.M. Belser and J. Bourke Martignoni (eds), States falling apart, Bern, Stämpfli Verlag 2015.

Scholsem, J.C. “La problématique de Bruxelles-Hal-Vilvorde et la jurisprudence de la Cour constitutionnelle”, 8(1) Fédéralisme Régionalisme (2008).

Velears, Jan. Territorialiteit versus personaliteit: een never ending story? Recente ontwikkelingen in de jurisprudentie van het Grondwettelijk Hof, de legisprudentie van de Raad van State en het Vlinderakkoord over de zesde staatshervorming [Territoriality versus personality principle: a never ending story? Recent developments in jurisprudence (Constitutional Court, Council of State] and politics (Sixth reform of the State)]. In Popelier et al., Belgie quo vadis, Waarheen na de zesde staashervorming [Belgium quo vadis? Whereto after the sixth state reform] (Intersentia, Antwerpen, 2012), 61-110, at 61.

Velears, Jan. Territorialiteit versus personaliteit: een never ending story? Recente ontwikkelingen in de jurisprudentie van het Grondwettelijk Hof, de legisprudentie van de Raad van State en het Vlinderakkoord over de zesde staatshervorming [Territoriality versus personality principle: a never ending story? Recent developments in jurisprudence (Constitutional Court, Council of State] and politics (Sixth reform of the State)]. In Popelier et al., Belgie quo vadis, Waarheen na de zesde staashervorming [Belgium quo vadis? Whereto after the sixth state reform] (Intersentia, Antwerpen, 2012), 61-110, at 61.

Vandenbruwaene, W. Het gerechtelijk arrondissement Brussel. In Velaers et al. (eds.), De zesde staatshervorming: instelling, bevoegdheden en middelen (Intersentia 2014), p. 203.

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