Patricia Popelier (responsible) and Werner Vandenbruwaene (collaborator) - University of Antwerp, Law Faculty, Research group on Government and Law

Name of the Act

Niveau V. Verandering voor veiligheid (Level V. Change for safety)

Date of entry into force of original text

September, 2016

Date of Text (Adopted)

September, 2016

Type of text

Political party policy plan

 

Federal level

Enacted by

Political party (in the federal coalition government)

Reference to the Constitution

Art. 167 of the Belgian Constitution: The Constitution cannot be wholly or partially suspended.  

Subject area

Anti-terrorism – Patriot Act

Comment 

Since the terrorist attacks on Brussels Airport and the underground tube Maalbeek on 22 March 2016, politicians bid up safety measures. The most far-reaching was the safety plans of the governing political party N-VA, presented as ‘Level V – Change for safety’, which invokes the IS threat on European soil to proclaim a state of emergency. The state of emergency would justify measures that seriously infringe upon fundamental rights, enabling a National Security Council, amongst others, to prohibit public meetings, to keep someone under house arrest or to conduct house searches without prior judicial interference. 

The European Convention on human rights offers a legal ground to derogate from (some) convention rights in a state of emergency. Several countries made uses of this. In Belgium, however, it is generally accepted that the Constitution does not allow for such practice. Article 187 of the Constitution states that ‘The Constitution cannot be wholly or partially suspended‘.

According to the N-VA, the plan nonetheless remains within the limits oft he law, refering to the Supreme Court’s case law on martial laws. This was 1940, and the Supreme Court upheld the laws that enabled drastic limitations to fundamental rights during the war. But the Supreme Court did not actually review the content oft he law against the constitution. It merely stated that due to force majeure, Parliament was not able to assemble, and therefor the government could exercise legislative powers on its own. The government’s decree was therefore equal to an Act of Parliament, and the Supreme Court did not have the power to review the content of an Act of Parliament.

This revived the discussion of whether there is a constitutional ground for the state of emergency. Advocate general Hayoit de Termicourt’s reasoning was brought up, arguing that the dercee of 18 November 1830 that proclaimed the independence oft he Kingdom of Belgium, has supra-constitutional value, allowing for unconstitutional measures to defend the country’s independence. Other authors stated that no argument can override the necessity to safeguard national sovereignty and the continuity of government power. The Council of State, in an advisory opinion of 1952, agreed.

Other scholars point out the weak legal ground for such reasoning.

But even if the reasoning is accepted, this in itself does not justify the Patriot Act proposed in the N-VA’s safety plan. The arguments based on the decree of independence as well as the ones based on the inherent value of national sovereignty, require that certain conditions are met: the continuity or independence oft he nation must be at risk, the measures must be temporary and enacted by Parliament. It is doubtful whether the first condition is fulfilled.

According to the European Court of human rights, Art. 15 of the Convention can be invoked if there is the threat of terrorist attacks puts at risk fysical integrity and human lifes, but it does not necessarily imply that the State’s institutions or the country’s existence as a civil community are imperilled (Grand Chamber, A v the United Kingdom, 19 February 2009). However, should the continuity or independence oft he state be accepted as a legal ground fort he state of emergency according to Belgian law, higher demands are made. The threat of terrorist attacks justifies increased vigilance, but fort he time being, the state institutions kept functioning and the independence oft he Belgian State was never at risk.

Meanwhile, it is noteworthy that the N-VA, whose main point in its political charter is Flander’s secession from Belgium, now invokes the necessity to safeguard the continuity of the Belgian state…

Available Text

https://www.n-va.be/sites/default/files/generated/files/news-attachment/niveau_v_-_10092016.pdf

Osservatorio sulle fonti

Rivista telematica registrata presso il Tribunale di Firenze (decreto n. 5626 del 24 dicembre 2007). ISSN 2038-5633.

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