Proposition 52K1283

Projet de loi spéciale modifiant l'article 26 de la loi spéciale du 6 janvier 1989 sur la Cour d'arbitrage.

General information ¶

Submitted by

The Senate

Submission date

July 12, 2007

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

fundamental rights higher court international law - national law control of constitutionality

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA LDD MR FN VB

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Discussion ¶

May 14, 2009 | Plenary session (Chamber of representatives)

Full source

Mr Terwingen, rapporteur, refers to his written report. Mr Willem-Frederik Schiltz has the floor.

Mr. Speaker, colleagues, we have a draft special law, which aims to amend the law on the Arbitration Court. This concern was inspired to resolve an existing conflict between our two highest courts. The conflict is that both the Constitutional Court and the Court of Cassation in certain circumstances threatened to be able to judge on the same matters. These are cases where a fundamental right is protected in an international provision and is also protected in our own Constitution.

The committee worked extensively and hard on an amendment, as the committee believed that the text, as submitted by the Senate, was rather overwhelming and threatened to overlook the intentions aimed at the draft. The amendments were approved almost unanimously.

Colleagues, however, it is appropriate for you to explain some things in this speech in the opinion of the State Council. There has been a certain vagueness about a very specific wording. I have already mentioned that this matter is about the analogue protection of a fundamental right, both in the Constitution and in an international provision. In its opinion, the Council of State gives a strange interpretation of the concept of “analogue fundamental right”. Furthermore, the State Council suggests that the concept should be explained preferably in the parliamentary preparations. That’s what I do today for you, to make sure that the draft cannot be post factum outholded by resorting back to whether or not vague parliamentary preparations.

Let me be very clear, my colleagues. I think I can speak in front of the committee. Those who do not agree with me must contradict me. The committee, like the Senate, intends to mean “analogue” as follows. “A partially analogue fundamental right is a fundamental right of equal scope, but with different scope or with equal scope, but with different conditions of limitation.” It is therefore not, as the Council of State erroneously states, a special provision and a general provision in which the special provision must then have priority over the general provision. The purpose of this draft must be that a preliminary question should be asked to the Constitutional Court as soon as a court determines that the fundamental right in question is protected both in Title II of our Constitution and in the international provision. Furthermore, there are a few small exceptions that we have included in it. You could read them all.

Colleagues, if the State Council calls on us to give a clear interpretation of the text available in the parliamentary preparation, I find it important to do so still.