–Frédéric Bouhon, Andy Jousten, Xavier Miny, and Emmanuel Slautsky. Corresponding Author: Emmanuel Slautsky (Emmanuel.Slautsky@ulb.be)
For the past weeks, national and international news has been dominated by a single subject: a large part of the world is affected by the pandemic of the infectious disease called Covid-19, which is due to the spread of a coronavirus. In this context, extraordinary measures have been taken by states to contain the outbreak and reduce the risk of hospital overcrowding. This is notably the case of Belgium, which seems to be one of the most affected countries in proportion to its population so far.
As Belgian public law scholars, we have followed the political and legal developments in Belgium since the outbreak of the crisis with great attention. In a recently authored 50-pages publication, we have described the constitutional law dimension of the Belgian response to the Covid-19 crisis as it has developed so far. We provide hereafter a summary of our main findings in English. The full text (in French) of our publication is freely accessible here.
Three main findings from our study can be highlighted here. Firstly, because of the existing division of competences between the different levels of government existing in Belgium, it has been difficult for the Belgian state to provide a fully centralised response to the crisis. Secondly, the response to the Covid-19 crisis has led to considerable (temporary) changes in the relationships between the Belgian parliaments and the Belgian executives at the different levels of government. Thirdly, the Covid-19 crisis has led Belgian public authorities to enact and enforce measures which have drastically limited citizens’ fundamental rights. These three findings are discussed below and show how some specific features of the Belgian state (in particular its federal structure) have shaped its response to the global crisis that we are currently facing.
Covid-19 Crisis and Belgian Federalism
Belgium is a federal state in which powers are divided between a Federal Authority, Regions and Communities.
Instinctively, one might think that a crisis such as the Covid-19 crisis is best handled centrally, with decisions being made for the entire national territory. However, in Belgium, no single level of power is competent to provide a full response to the outbreak and its health and socio-economic consequences. For example, public health is a shared competence between the federal government and the Belgian Communities, public order is a competence of the federal government, schools and education are the responsibility of the Belgian Communities, public transport is in the hands of the Belgian Regions, etc.
The Belgian Communities and Regions have been active, within the scope of their competences, to respond to the Covid-19 crisis and have e.g. adopted measures aimed at mitigating its negative effects on the economy. However, up to now, the core of the Belgian response to the crisis and, notably, the measures which limit fundamental rights most drastically by imposing an almost complete lockdown (which affects schools, many shops, restaurants, bars, etc.) have been adopted at the federal level, through decrees of the Minister of Security and Home Affairs (ministerial decrees of 13, 18 and 23 March 2020, as modified on 24 March and on 3 April 2020). These decrees are based on a 1963 Act concerning Civilian Protection, on a 1992 Act on the Police force and on a 2007 Act concerning Civilian Safety. Admittedly, these decrees were adopted taking into account the views of the Belgian Regions and Communities: the Belgian regional entities are represented in the National Security Council, a body at the heart of the definition of the Belgian response to the Covid-19 crisis. Furthermore, the Belgian Prime Minister, Sophie Wilmès, announced the measures adopted to fight the spread of the virus together with several ministers from the different Belgian regional entities. The decrees remain, however, decisions adopted formally by the federal government. This is perhaps surprising given the constitutional division of powers applicable in Belgium.
Covid-19 Crisis and Belgian Parliamentarism
Belgium is a parliamentary system: executives at the different levels of government are responsible before their respective parliaments and are accountable to them. The Covid-19 crisis has changed the relationships between the Belgian parliaments and their executives in two main respects. First, the pandemic has had the indirect effect of putting an end to the political deadlock and the situation of take-care government that had prevailed at the federal level since December 2018. On March 16, 2020, i.e. a few days after the start of the health crisis in Belgium, nine political parties (MR, Open Vld, CD&V, cdH, PS, sp.a, Écolo, Groen and Défi) announced that they were going to vote in favour of a motion of confidence in the federal take-care government, some of them through a confidence and supply arrangement. Confidence was officially granted by the Belgian House of Representatives to the federal government led by Belgian PM Sophie Wilmès on 19 March. Although Belgium had already (but rarely) known cases of minority governments, the current situation is extraordinary: almost two thirds of the 150 members of the House of Representatives have voted in favour of a motion of confidence in a coalition-government that represents only approximately one fourth of the members of the House (38 seats, as only MR, Open Vld and CD&V are represented in the government). The Covid-19 crisis has therefore led to a situation where the Belgian federal government relies on external support in the House to an extent never seen in Belgian politics.
Secondly, the Belgian state response to the Covid-19 crisis has been characterised by the conferral of wide powers to the executives. These powers allow the executives at the different levels of Belgian government to adopt all measures necessary to react to the crisis through statutory instruments. These delegations of powers have happened both at the federal and state levels, although the Flemish and German-speaking communities have been exceptions so far. These powers go as far as to allow the executives to amend existing statutes through delegated acts (“pouvoirs spéciaux”). This transfers of powers from legislative assemblies to the executives can be explained, among other things, by the need for public authorities to react quickly to the pandemic, without going through the ordinary legislative process. It is also explained by the fact that members of parliaments are not able to meet physically anymore. When these powers were granted, there was the fear, therefore, that the activities of the Belgian parliaments would need to be suspended.
Covid-19 Crisis and Fundamental Rights
Finally, as in many other countries, the Covid-19 health crisis has led Belgian public authorities to limit many fundamental rights (freedom of assembly, freedom of movement, right to education, right to privacy, freedom of religion, and so on) to an extent unprecedented in peace time. The severity of the pandemic certainly allows the authorities to ground these exceptional decisions in legitimate aims, which are explicitly recognised, inter alia, by the European Convention on Human Rights. These aims include the protection of public health and the protection of the right to life of others. The situation nonetheless raises a number of questions from a fundamental rights perspective. The first concern relates to the legal form of the “lockdown” measures adopted in Belgium: measures drastically reducing the fundamental rights and civil liberties of the whole Belgian population have been adopted by “simple” ministerial decrees without, furthermore, any specific parliamentary scrutiny of these decisions. It is not entirely clear whether the legal basis for these ministerial decrees satisfies the Belgian constitutional law requirement that measures limiting fundamental rights should normally be made by Parliament. Another fundamental rights issue is the vague wording used in the decrees enacting the lockdown, at least initially, leading to an inconsistent application of these restrictions in practice across the country. Thirdly, the proportionality of the measures adopted will most likely be extensively debated in the coming months and years. The proportionality of these measures will have to be assessed taking notably into account the duration of the measures, their timing and the nature and the harshness of the sanctions. The current context of scientific uncertainty regarding how the crisis should be best handled will also have to be kept in mind. This will not prevent, however, other questions from arising: for example, calls for a parliamentary inquiry into why the Belgian State was not better prepared for the possibility of a crisis such as the one we are currently facing are already widespread.
Suggested Citation: Frédéric Bouhon, Andy Jousten, Xavier Miny, and Emmanuel Slautsky, States’ Reactions to COVID-19 Pandemic: An Overview of the Belgian Case, Int’l J. Const. L. Blog, Apr. 14, 2020, at: http://www.iconnectblog.com/2020/04/states’-reactions-to-covid-19-pandemic:-an-overview-of-the-belgian-case
 In a simplified summary of the situation, the Belgian political landscape is as follows: MR and Open Vld are liberal parties. CD&V and cdH belong to the Christian democracy tradition. PS and sp.a are socialist parties. Ecolo and Groen are green parties. Défi is a party from the political center, which has historically focused on the defence of the French-speaking Belgian minority. In addition to these nine parties, there are three other political parties represented in the Belgian Parliament: N-VA (Flemish nationalists), Vlaams Belang (Far-right) and PTB-PVDA (communists). The voting system in Belgium is proportional, which leads to a fragmentated political landscape.