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Mask obligation ‘unconstitutional,’ says Brussels court

Home affairs minister Annelies Verlinden. © Belga

A police court magistrate in Brussels has acquitted a man charged with failing to wear a face mask, arguing that the obligation to do so is unconstitutional.

Cases before the police court are restricted to minor charges, including traffic offences, and in this case the obligation throughout the Brussels region to wear a face mask at all times in public.

But the magistrate in question declared the blanket obligation to be a breach of the constitutional right to freedom of movement. According to the judgement, that right can only be curtailed on the basis of a law passed by parliament, and not on the basis of a ministerial decree, as is the case with the regulations on Covid-19.

In fact, that has been the case since the beginning of the pandemic. The government passes a set of rules on the authority of the King, but without going through the steps to obtain the approval of parliament.

The executive, according to that pattern, legislates without the authority – or with only the tacit authority – of the legislature.

This is not the first time the constitutional basis for Covid-19 rules has been questioned in court. A court in Charleroi in October struck down corona fines as unlawful, pointing out that the justification for the measure – the protection of public health – does not excuse the means used to achieve it.

The Brussels court of appeal has also found fault with the procedure. However the Council of State, the last word on such matters, has given a guarded approval to the procedure for the time being.

On the question of a proper legislative instrument by which to bring in laws for the protection against Covid-19, the government’s reply is that a so-called ‘pandemic law’ is in preparation.

That law, which is being guided through the procedure by federal home affairs minister Annelies Verlinden (CD&V), is intended to be a compendium of all the areas where legislation would be needed in a pandemic, as well as provisions for those matters which cannot yet be predicted. So it is no surprise that the task is monumental.

Last week Verlinden said she had a draft of the law ready, but that only signifies the bill is still in its very early stages. And already, cracks are beginning to appear.

In a parliamentary response to a question from N-VA member Sophie De Wit, justice minister Vincent Van Quickenborne said the new law was not intended for application to the current crisis.

Just this week, Verlinden said the opposite. “The intention is still to apply this law to the current pandemic,” she said.

UPDATE: This lunchtime, the Brussels prosecutor’s office said it would appeal the ruling of the police court.

“The prosecution would also like to point out that prosecutions for non-compliance with the wearing of face masks will continue to occur as long as no settled and definitive case law would jeopardise the validity of the prosecutions,” the statement said.

Alan Hope
The Brussels Times