Thursday, 01 April 2021
On Wednesday afternoon, a Brussels court ruled that Belgium’s current coronavirus measures do not have a sufficient legal basis, and gave the State 30 days to provide that basis.
But what does that actually mean?
At the end of February, the Human Rights League took the Belgian State to court as it believed that the coronavirus measures were not taken in a democratic manner. On Wednesday, the court ruled in the League’s favour, stating that the measures are insufficiently justified by law.
Despite the eye-catching result, the ruling does not comment on the content of the measures and whether or not they are effective, it only states that the legal basis is not sufficient.
For now, this means that the pressure on the federal government to quickly adopt its “pandemic law” – which will provide a permanent legal basis, for taking this kind of restrictive measures during a pandemic – has only increased.
Here’s what you need to know.
No, the measures cannot be lifted so easily. The judge gave the federal government 30 days to clear up the matter.
“The judge ruled that it was not enough for the Interior Minister (Annelies Verlinden) to announce the measures by Ministerial Decree,” constitutional specialist Stefan Sottiaux (KU Leuven), who read the ruling, said on Flemish radio. “The judge is actually deciding what my colleagues and I have been complaining about for months: it is unacceptable that Parliament is being sidelined.”
In theory, this leaves the government two options: lift all measures (which is considered the unlikely option due to the current coronavirus situation), or provide a legal basis for the measures before the 30 days are up.
If the “illegal situation” continues after this period, the government has to pay a penalty of €5,000 for each day the measures remain in force.
In short, yes.
According to the Human Rights League, the measures will no longer be valid if there is no legal justification after 30 days, but the government could, in theory, decide to keep the measures in place and pay the corresponding penalties, Sottiaux explained, adding that it is unlikely that it will come to that.
On Wednesday evening, Interior Minister Verlinden announced that she would appeal against the verdict to the Brussels Court of Appeal, but that the measures would remain in place for the time being.
“From previous rulings by the Court of Appeal in Brussels, however, I do not think it will rule differently than it did in the first instance,” Sottiaux said.
This is not entirely clear. While it is possible with the parts at hand, it depends on a lot of variables fitting together.
To Sottiaux, it seems logical that the authorities “will do everything they can” to create a legal framework now, which should be possible in principle, especially because the preliminary draft for the so-called pandemic law already exists.
However, a lot will depend on politics. “Drafts and texts about [the law], both from the majority and the opposition, already exist, and they have already been discussed in parliament,” he said. “The question is whether there will be an agreement.”
The draft has already been criticised several times, but Sottiaux said that there seems to be nothing to stop the parliament from voting the law quickly. “Although it will indeed require some fine-tuning.”
According to Kati Verstrepen of the Human Rights League, 30 days should certainly be sufficient to create the necessary basis. “The government has already been given enough time,” she told VRT.
Belgium’s current coronavirus measures are based on the law of 15 May 2007 on civil security, which the Council of State has repeatedly established as a sufficient legal basis.
“In the beginning, it was understandable that this law was used, with the argument that nobody had experienced such a crisis before,” Sottiaux said. “The judge now clearly states that this argument no longer counts after a year.”
The fact that Belgium was led by a so-called “government of current affairs” (under Sophie Wilmès) for a large part of the crisis is also a factor for the law not existing yet, as it was limited to taking purely administrative decisions and only settling urgent or routine matters, with special powers to deal with the crisis.
Additionally, a possible “lack of constitutional and democratic reflex” in Belgium – which was sharply criticised by the opposition in the Chamber – is to blame as well, according to Sottiaux. “It is apparently only normal that these measures are taken outside of parliament.”
“Belgian constitutional experts have predicted that this was going to go wrong,” he added. “And it is not often that we all agree on something.”
The Brussels Times