The Flemish nationalist N-VA party seeks to bring balance to the rule of law by allowing parliament to ignore rulings by Belgium’s Constitutional Court. Only this way, it argues, a de facto gouvernement des juges (rule by judges) can be avoided.
At a February 27th press conference, N-VA presented its vision for the future of Belgium. One of its proposals—the introduction of a “people’s appeal” whereby parliament can decide to “overrule” the Constitutional Court by a two-thirds majority—sparked immediate controversy among the opposition and certain legal scholars.
Green MP Jeremie Vaneeckhout countered the proposal, tweeting that this constituted an “assault on the rule of law,” arguing that the separation of powers is “foundational to a liberal democracy.”
The uproar prompted N-VA MP Sander Loones to further clarify the proposal on Tuesday, February 28th, on his party’s website. He argues a bringing to heel of “overeager” judges is necessary, as they make socio-economic reform “impossible.”
Many times, the party has pressed for such reforms to take place for Belgium to ward off bankruptcy. This year alone, its budget deficit—already among the highest in the EU—has been expected to reach €33.5 billion.
Many initiatives taken by the democratically elected parliament in this area, Loones argues, find themselves thwarted by judges.
Yet, Loones observes such “judicial activism” taking place in rulings on migration and climate in particular, “where sometimes judges rather than politicians determine policy.” Lawmakers, he argues, however, deserve a share of the blame:
When cowardly legislators do a shoddy job, voting on vague and incoherent legislation, judges increasingly decide in which direction policy moves. Legislators lose impact, democracy is eroded, citizens are alienated. Such is the tyranny of bad laws. Responsibility for it must be sought primarily in parliament, their reversal [of bad laws] equally so.
To counteract this trend, N-VA seeks to introduce a “people’s appeal,” along the lines of Canada’s ‘notwithstanding clause’ enshrined in its Charter of Rights and Freedoms: the legal mechanism allows a provincial parliament to override a Constitutional Court ruling.
Most recently, it was invoked by Quebec to protect its language law reforms and to keep its ban on the wearing of religious symbols by public sector workers.
In the Belgian context, Loones emphasizes that specific preconditions would be attached to such an appeal: first, a two-thirds majority in parliament would be required while, in addition, so-called ‘passive’ fundamental rights—i.e. freedom of speech and the right to vote—cannot fall under its domain. It, then, is only possible with the so-called ‘active’ rights, where “correct government action is expected,” in, for example, its duty to provide “social security, family benefits, a healthy living environment, cultural and social development, and decent housing.”
The popular appeal’s introduction, Loones hopes, would guarantee the
space to conduct policy, protect absolute constitutional rights and respect the will of the voter. After all, in the rule of law, democracy must prevail. So that judges do not take the place of politicians, and representatives of the people regain confidence in the policy makers of tomorrow.
Belgium’s own judiciary is not Loones’ sole concern, as he equally takes aim at the European Court of Human Rights (ECHR) in Strasbourg. “Decades-old treaties are suddenly interpreted differently, especially on asylum and migration. That was never the original intention,” he explains.
As an alternative, he proposes adding a passage in Belgium’s constitution detailing to what degree international law can influence the Belgian legal system. As a model worthy of emulation, Loones mentions the Netherlands, which, he argues, determines for itself which provisions of ratified (non-EU) treaties it does (or does not) accept the direct effects of.
As inspiration for some of its ideas, the N-VA party has been known to consult Belgian Professor of Sociology Mark Elchardus. In his 2022 book Reset, Elchardus rails against activist judges who prove too creative in their interpretations of legislation.
In an interview with Knack that year, Elchardus voiced his support for a “special majority” of representatives to either “accept or reject” certain court rulings. Judges, he argued, “will then be careful not to be as politically activist as they are now. A parliamentary review removes judges from the political arena. This restores the credibility and authority of the court.”