TOWARDS CONSTITUTIONAL AUTONOMY OF THE COMMUNITIES AND THE REGIONS?

In the Belgian federal state, the communities and the regions do not have any constitutional autonomy. They are based on the federal Constitution, which either directly or through federal (special-majority) legislation establishes rules governing their election, composition, and functioning.

The recent negotiations to form the federal government show that there is once again a strong political will, especially in Flanders, to extend the powers of the communities and the regions. Therefore, additional powers could, as in previous reforms, be devolved from the centre to the communities and the regions. It would also be possible, more fundamentally, to reverse the current trend and to transfer residual powers to the communities and/or the regions, leaving only expressly enumerated powers at the central level. In fact, such a scheme is already enshrined in the federal Constitution, albeit only in principle. According to Article 35 of the Constitution, the federal government has only enumerated powers, while the communities and regions are competent for all other matters in the way and under the conditions prescribed by special-majority legislation. Article 35 has yet to enter into force and can only do so once a list of federal powers is inserted in the Constitution. However, the recent declaration to amend the Constitution does not provide for such an amendment.

In order to provide constitutional autonomy for the communities and the regions, the federal Constitution will need to “make room” for them. This means that all sections in the Constitution and in federal special-majority legislation pertaining to the election, composition, and functioning of the community and regional institutions will need to be abolished.

Major problems will arise nevertheless in implementing Article 35. First, and for the first time in Belgian history, politicians (all political parties in Belgium are regional, even at the federal level!) will have to agree on an exhaustive list of policy matters that they would like to remain at the federal level. This agreement promises to be extremely difficult, since these politicians are typically more accustomed to negotiating policy matters they would like to devolve to the communities and the regions.

The implementation of Article 35 will also entail a decision about residual powers, i.e., whether they should be exercised by the communities or the regions or if a compromise solution is possible, according to the nature of the powers concerned.

Finally, the transfer of residual powers will entail a fundamental review of the financing of the communities and the regions. The current system of financing was conceived taking into account only the enumerated powers of the communities and the regions.

Article 35 is highly symbolic, since it is situated at a crossroads between those who defend the continuing existence of Belgium as a federal state and those who advocate a confederal model or even the dissolution of Belgium.

1 L. Tribe, American Constitutional Law, 2d ed. (Mineola, NY: The Foundation Press 1988): 379.

2 “United States Sub-national Constitutional Law,” in A. Alen, G. A. Tarr, and R. F. Williams, eds., Subnational Constitutional Law (Kluwer Law International 1999), 15.

3 Art. 20 of the German Constitution: “Die Bundesrepublik Deutschland ist ein demokratischer und socialer Bundesstaat.” (The Federal Republic of Germany is a democratic and social federal state.)

4 Art.

5 Art. 28 (1) GG: “Die verfassungsmäβige Ordnung in den Ländern muβ den Grundsätzen des republikanischen, demokratischen und sozialen Rechtstaates im Sinne dieses Grundgesetzes entsprechen” (The constitutional order in the Länder must conform to the principles of a republican, democratic, and social state governed by the rule of law, within the meaning of this Basic Law.)

6 H. Dreier, ed., Grundgesetz Kommentar (Tübingen: J. C. B. Mohr, 1998), Bd 2, Art. 20–82, 505.

7 Art. 3 of the Swiss (federal) Constitution: “Les cantons sont souverains en tant que leur souverainete n’est pas limitee par la Constitution federale, et exercent tous les droits qui ne sont pas delegues à la Confederation” (The cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution. They shall exercise all rights that are not vested in the Confederation).

8 See also, e.g., Article 1 of the Geneva Constitution: “La Republique de Genève forme un des cantons souverains de la Confederation Suisse” (The republic of Geneva is one of the sovereign cantons of the Swiss Confederation). And see Article 1 of the Wallis Constitution: “Le Valais est une republique democratique, souveraine dans les limites de la Constitution federale et incorporee comme Canton à la Confederation Suisse” (Wallis is a democratic republic, sovereign within the limits set by the Federal Constitution and incorporated as Canton of the Swiss Confederation).

9 U. Häfelin and W. Haller, Schweizerisches Bundesstaatsrecht; Die neue Bundesverfassung, 5 Aufl. (Zürich: 2001), 270.

10 Arts. 3 (52) (1) and (53) (1) of the federal Constitution.

11 “Chaque canton se dote d’une constitution democratique”. (Each canton provides itself with a democratic constitution).

12 For more details concerning matters in this section, see P. Peeters, “Multinational Federations: Reflections on the Belgian Federal State,” in M. Burgess and J. Pinder, eds., Multinational Federations (Routledge 2007), 31 ff.

13 See the decrees published in the Belgian State Gazette (Belgisch Staatsblad/Moniteur belge) on 10 September 1993. The transfer concerned powers relating to physical education, sports, tourism, social promotion, professional recycling, student transportation, and certain aspects of health policy and social aid.