THE ABSENCE OF CONSTITUTIONAL AUTONOMY FOR THE COMMUNITIES; “CONSTITUTIVE AUTONOMY” FOR THE MOST IMPORTANT COMMUNITIES AND REGIONS

Although the communities and regions have only those powers that are expressly attributed to them by the Constitution itself or by (special majority) legislation and even though they do not have any general power to regulate their own institutions, the three major communities and regions, i.e., the Flemish Community (which also exercises Flemish regional powers), the French Community, and the Walloon Region, have enjoyed so-called constitutive autonomy since the 1993 constitutional reform.

These “constitutive” powers refer to certain aspects of the electoral system, that is, to the division of the regional territory into electoral districts and the determination of electoral capitals, as well as the number of members of parliament and the maximum number of members of the government. The parliaments can also impose additional incompatibilities for their members and for members of government. The term “constitutive autonomy” also covers several aspects of the functioning of the community and regional parliaments and governments, such as the opening and closing of ordinary and extraordinary parliamentary sessions, the publication of the minutes of parliamentary meetings, the status of members of the government, delegations of authority to individual ministers, and so forth.

The Constitution (and the special-majority legislation) determines matters pertaining not only to constitutive autonomy but also to how the communities and regions must exercise this autonomy. Powers relating to constitutive autonomy must be exercised through decrees passed by a two-thirds majority in the relevant parliament.

Constitutive autonomy in Belgium is rather limited compared to other federal states and certainly does not provide a sufficient legal basis for the communities and regions to adopt their own constitutions. Neither the Brussels-Capital Region nor the German-speaking Community has the power to regulate matters relating to the election of its parliament and to the composition and functioning of its parliament and government. The 1993 Constituent Assembly did not discuss extensively why constitutive autonomy should not be afforded to the Brussels-Capital Region and the German-speaking Community. This could have been because of the status of Brussels as the country’s capital and the delicate institutional balance that has been achieved within the Brussels-Capital Region, although it may have been possible to grant constitutive autonomy in theory to the Brussels-Capital Region, leaving it to the Dutch- and French-speaking groups within the Brussels regional parliament to decide whether these powers should be exercised. On the other hand, there was no justification for withholding constitutive autonomy from the German-speaking Community. The most recent declaration to amend the Constitution would render it possible to extend constitutive autonomy to the Brussels-Capital Region and the German-speaking Community.