Proposition 52K1113

Projet de loi adaptant diverses lois réglant une matière visée à l'article 78 de la Constitution à la dénomination "Cour constitutionnelle".

General information ¶

Submitted by

The Senate

Submission date

Jan. 17, 2008

Official page

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Status

Adopted

Requirement

Simple

Subjects

constitutional court terminology legislation

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld MR

Abstained from voting

N-VA LDD FN VB

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

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Discussion ¶

Dec. 22, 2009 | Plenary session (Chamber of representatives)

Full source

I give the floor to Mr Renaat Landuyt for his supplementary report.

Mr. Speaker, I believe that the supplementary report gives a good reflection of the work in the committee, which allows me not to read it in its entirety, but yet to summarize its general lines.

What is going on? On 19 November 2009, Mr Patrick Dewael, Chairman of the Chamber, returned to the committee the draft law containing the provisions of Article 77 — and not Article 67 as stated in the announcement — because Article 77 contains a restrictive list of legislation to be dealt with through the traditional two-chamber system.

Now, in the current text and also in the then text on 19 November 2009, it was established that, contrary to the opinion of the Council of State in, three laws are treated according to the procedure in Article 77, while they actually have to be treated according to Article 78. In particular, this includes the law on parliamentary inquiry, the law on incompatibilities of ministers, members and former members of the House, and the law establishing a parliamentary committee on law assessment. Those three laws you will not find in the list of Article 77 of the Constitution.

Therefore, this point on my question was discussed at a time in the Committee for the Revision of the Constitution and the Reform of the Institutions. It is, as you know, the commission that is responsible for the changes to and the protection of the Constitution.

In that committee, the majority, spoken by Mr Schiltz, welcomed the position that it is strictly legal correct that Article 77 should not be applied here, but that one wishes to take a pragmatic stance for the following reasons.

First, the State Council itself has not always made that observation in the past, and the State Council itself, according to a certain interpretation, has, however, taken a broad step in the interpretation of Article 77, in particular as regards the Comités P.

Secondly, it also referred to the non-binding case-law of the Parliamentary Consultation Committee. It was made clear that here we do not comply with Article 77 of the Constitution because of the allegation of conflicts between the Chamber and the Senate, especially since the years 1995-2000.

In other words, there was a clear majority to take a pragmatic stance and in that sense not comply with the Constitution.

The reporter himself and Mr. Weyts of the N-VA pointed out that there is no argument for non-compliance with the Constitution. In this regard, we did not understand the reasoning of the majority. The Chairman sealed the debate by referring to the fact that in the Senate the bills were unanimously approved.

After this discussion, we went on to the vote, which showed that the majority re-approved the texts.

Does anyone ask the word in the general discussion?

The word is yielded to Mr Landuyt in his capacity as a member of the Chamber.

Mr. Speaker, dear colleagues, as you could formulate from the report, it is intended to replace the term ‘Arbitragehof’ in various legislative texts with ‘Grondwettelijk Hof’. I think it is very good to be fully in it. Thus, we demonstrate that we are a country with a Constitutional Court, a country that considers it important that there is a guard dog for the Constitution.

I think that the debates surrounding this text, and specifically the debates surrounding compliance with Article 77 of the Constitution, illustrate the importance of a Constitutional Court. It is a little regrettable or cynical, but precisely with the introduction of the term ‘Grondwettelijk Hof’, we illustrate the need for a guard dog for the Constitution. After all, the majority and the entire Senate even have the courage to flagrantly disobey the Constitution when installing and introducing a Constitutional Court. This must be Belgium. Let me emphasize once again that we here in this house are not competent to comply with the Constitution on our own. It reminds me of the judiciary that is incapable of monitoring its own behavior through internal control. Today we demonstrate that we, as a legislative power, are incapable of monitoring our own behavior in relation to the Constitution. Again, I hope that members of the Constitutional Court...

The United States of America has the practice of a Constitutional Court. The legislator there can be compared to ours and the Constitutional Court can break a number of important laws there, which is much more frequent than has happened with us. There was no deminutio capitis of Parliament. I do not understand the reasoning.

I will repeat my reasoning.

Sorry, it is my own fault. I was not clear enough.

What we do here, Mr. De Croo, is in a few laws the term "Arbitrage Court" replaced by "Constitutional Court". You know that the Constitution stipulates that most legislation is regulated through article 78, which states that the Senate is effectively a kind of reflection room that attracts the text to itself if there is a specific reason for it. In only a limited number of cases, listed in Article 77 of the Constitution, we still follow the classic two-room system.

In the present texts three legislative texts are amended by Article 77, but they are not in the application of Article 77! In other words, we flagrantly oppose the letter of the Constitution when we introduce the name Constitutional Court into the legislative texts. In my opinion, this must be Belgium. We are unconstitutionally entering the Constitutional Court. That is my point. That is my pain.

The positive translation of all that is that there is really a need for a Constitutional Court with such a Parliament. Why do we violate the Constitution openly and openly? Because we don’t like to argue and argue with the Senate where there are personalities we devote to. Well, a Constitution is just the guarantee, or should be, that we, despite strong personalities, despite other majorities in the future, continue to guarantee our Constitution. What we do here à la légère should touch every Democrat in the depths of his democratic heart.

There is a tendency that we blame people who are not so affectionate about our democracy. Those people will later refer to the installation of the Constitutional Court with the argumentation of Mr. Schiltz, in the name of the majority. “For pragmatic reasons, we will violate the Constitution,” it is now written in parliamentary documents. Anyone who refers to the dangerous years, when democracy was democratically undermined, should re-read this report. Anyone involved in this no longer has any argument to point out our democracy and the observance of our rules.

I say this with the President in my back. Subordinating your Chamber to the Senate in this way is one thing, but ignoring the letter of the Constitution in this way is another. It can only be interpreted in a positive way. It is time for a Constitutional Court to come, because this Parliament is unable to protect its own Constitution. This is regrettable.

Mr. Speaker, colleagues, Mr. Landuyt, you continue to persist in the anger. You have mentioned the same arguments here at previous meetings and in the committee. I then took the effort to explain you and the other colleagues of majority and opposition carefully the discourse with all the legal and practical arguments that exist to handle the procedure of the bicameral system. I will repeat this briefly.

Collega Landuyt goes a little too fast to overlook the fact that we in Belgium not only attach a very great importance to the Constitution, but also to the consultation practice with the aim of avoiding a clash between the chambers, which would paralyze both our legislative bodies. To avoid this, there is a consultation committee. The consultation committee has developed for years a type of jurisprudence in which, if a legislation is submitted to a chamber which also affects the other chamber, because it is about its organization, about the statute of the senators, about the parliamentary investigation, in which the Senate is also involved, the bicameral procedure would automatically be used.

Mr. Landuyt, that is a practice you have used here and in the government or anywhere as a member of the majority for years. So don’t come to me now from the speech table of the lesson games that I’m working here to treat the constitutional principles and the Constitution itself as a vodje paper, because that’s not the case. De minimis non curat praetor: the judge does not judge in petty matters, and I do not wish to make any more words of dirt. The committee’s report is very clear: it offers you not only practical, but also legal grounds for why we can today without problems, without objections of conscience, confirm the Constitutional Court, which already exists and that will be able to protect us in the future from any flagrant crimes.

Mr. Speaker, I just want to inform you that we will vote in the same way as Professor of Constitutional Law Johan Vande Lanotte did.

Everyone is responsible for their own arguments. My only point here is that one is very slightly dealing with compliance with the letter of the Constitution. That lightness is hallucinating and a democracy unworthy. You miss a historical moment: in the installation of the Constitutional Court, one violates the Constitution with a conscious reason. There is no practice that should be stronger than the Constitution. I repeat it, for history: there is no single personality, he was a professor anywhere, enough to ignore the Constitution. It starts with the small and I’m not sure, Mr. Schiltz, that the Constitutional Court will find it a small mistake.

Then I will replicate to you, Mr. Landuyt, for history, that I attach much more importance to the content of the Constitution than to the letter. It is much more important to respect the ratio legis of the Constitution, than the pure letter, which in this nothing, but therefore nothing, has substantially around the body.

Ladies and gentlemen, since Mr Landuyt also mentioned in his report that I would have sealed the debate in the committee with the reference to the unanimity with which the Senate approved the text, I would like to note the following. For me, that is not the most important argument. Mr Vande Lannotte is not the main argument for me. Mr Delpérée is not the most important argument for me. Mr Vandenberghe is not the main argument for me. There has been the translation of an excellent argument, which colleague Schiltz brought. Indeed, I think, referring to the jurisprudence of our Parliamentary Consultative Committee, that we actually have good reasons to put a point behind the discussion, which we have completely exhausted, both in the committee and in the plenary session.

Nov. 19, 2009 | Plenary session (Chamber of representatives)

Full source

I am referring to my written report. The purpose of these texts is to transform the name "Arbitration Court" into "Constitutional Court" to be in perfect harmony. After many discussions within the Constitution Revision Committee, among other things, it adopted the principle of a complete listing of the legal texts in which the name should be modified, thus returning to what the Senate, in its great wisdom, had, it seems, already suggested.

I am very pleased that my amendments have succeeded. I thank you all, members of the majority and others, for supporting them.

Mr. Speaker, I could not be present in the Constitutional Committee and I have a question. This is about an aspect of the Constitutional Court and I wonder whether it is wise to amend in the draft law on the basis of Article 77 legislative texts that are not included in Article 77 of the Constitution, in particular the law on parliamentary examination, the law on the incompatibilities of ministers and another one. These laws are not listed in Article 77 and yet we treat them in accordance with the procedure of Article 77. This is very annoying given that there is just legislation about the Constitutional Court that apparently treats unconstitutional.

Mr. Landuyt, it is not the case that we change the meaning of that legislation on the subject. It is a purely legal intervention in which a word is changed.

Actually, this should be a historical moment. Our country recognizes the fact that we have a Constitutional Court. The introduction of the Constitutional Court is unconstitutional. Read Article 77 of the Constitution. Flagrantly against the text of Article 77, we arrange something that we could have actually arranged in the other draft. I do not understand that at all. How can one make such a beauty mistake? It is not actually a beauty defect; it testifies to the flexibility with which we apparently want to jump over with our Constitution. I think this is really the wrong time to do this. I am sorry that I was not present in the Constitutional Committee: I would have much rather addressed it there. This cannot be an argument to violate the Constitution.

Myheer Landuyt, u mag van een mug geen elephant maken. The historical moment was there op the ogenblik dat of nameswijziging doorgevoerd wurde. Dit is louter de opvolging ervan, een louter technical matter. Bovendien heb ik van de Raad van State ook geen verpletterende bezwaren gehoord tegen de amendementen zoals ze thans in de text gegoten zijn. Zoals u al zei, the absent are always wrong.

As you said, your last argument is your weakest argument. That would actually mean that you would be unfair in the absence of auditors. However, I assume that is not the purpose of your judgment.

The [...]

Waarde collega, aangezien u aanwezig was in de commission veronderstel ik dat u het advies van de Raad van State over het document hebt gelezen. It is of the Council of State itself that observes that it actually does not can. Nogmaals, i begrijp niet hoe de meerderheid op een moment waarop het gaat over het Grondwettelijk Hof, de letterlijke text van de Grondwet kan negeren. It must be done!

I would like to note two things. First, it is not about the majority. There was unanimity in the Constitutional Committee.

Secondly, we considered two hypotheses in the Chamber committee. We first sent it to the plenary session on the basis of an amendment submitted at the time by colleague Vandeurzen and that actually resulted from a single legal intervention in which a single article would in fact automatically change the name Arbitragehof into Constitutional Court in all possible legislation.

The Senate has proposed a different approach, namely a kind of enumeration. The State Council has shone its light on this and after wise deliberation we have said in the Constitution Committee that it might be better to follow the Senate’s procedure on this matter.

After so many weeks or months, Parliament should be able to put a point behind the debate. We’ve all been talking about the Constitutional Court rather than the Arbitration Court. It is now time that we, through the present draft and proposal, add the act to the word and ensure that we can legally bring the operation to a good end. After participation, in a parliamentary democracy, a decision must be made at some point.

Mr. Speaker, both amendments, both possibilities, were examined by the State Council and I did not actually read Mr. Landuyt’s comment. In its final opinion, the State Council had no comments on both possible amendment options.

That is right.

Mr. Speaker, the reason for my intervention today is, of course, to distance me from this way of working. It is not a general rule or the listing of legislation. You could and can still correctly adjust the two documents. The State Council literally mentions what is stated in Article 77 and what is not. Look at the state of the country. It is thought that one has a Constitutional Court, while the name is introduced in an unconstitutional way. In the report, it is even literally stated that unconstitutional is done out of habit. I think that is quite extensive for an institution and this does not show respect for the Constitution, nor for the Constitutional Court and for the Parliament. One ignores its own Constitution when one speaks of the Constitutional Court.

You have expressed your position. You have no amendment.