Belgian authorities’ move to impose a curfew in efforts to rein in soaring rates of new coronavirus infections is unconstitutional, according to two scholars at the Vrije Universiteit Brussel (VUB).
Through an initiative dubbed ‘Geen vodje papier,‘ (Dutch for ‘Not a mere scrap of paper’), in reference to the constitution, Karin Verelst, a doctor in philosophy, and Jan De Groote, a legal expert, said the curfews “raise eyebrows” as they are in direct and explicit conflict with the country’s constitution.
On their website, they note that the Belgian constitution explicitly forbids the declaration of a state of emergency, which allows for the suspension of all or parts of the constitution in order to limit the fundamental rights guarded by it, such as freedom of movement.
“Article 187 of the Constitution opposes such a recourse,” they wrote, referring to the curfews imposed by the federal government, and adopted and reinforced by the Walloon and Brussels regional governments, as “unprecedented.”
“An all-out ban on free movement is unprecedented in Belgium,” they wrote, noting that curfews had only been imposed by German forces occupying Belgium who “saw themselves as above the Belgian law and the constitution, which explicitly forbids the declaration of a state of emergency.”
Besides their unconstitutional nature, Verelst and De Groote said the imposition of curfews also disproportionately impacted the most vulnerable sectors of society and gave “enormous power” to the police, as it was up to officers to decide whether a passers-by “‘excuse’ for being outside was satisfactory.”
“Even the CELEVAL committee of [coronavirus] experts did not recommend this measure in their latest report [to the government]. They are aware of the serious judicial obstacles and rightly stress that the most vulnerable and precarious groups will be the ones who will be hit the hardest by such a measure.”
Antwerp Governor Cathy Berx, who imposed a coronavirus curfew on the province of Antwerp in the summer, was the first public authority in the country to break out the measure in the context of the current coronavirus crisis.
‘Repeal the curfews’
The duo are therefore seeking to get Belgium’s highest court, the Council of State, to repeal the curfews, and are calling for it to be replaced by other measures such as a ban on gathering.
“A ban on gathering limits your freedom, a curfew strips you of it,” they wrote. “A curfew goes much further than a ban on gathering, which allows people to go outside, but only in limited numbers and on the condition that certain precautions are followed.”
The legal challenge to the curfews, set to remain in place until at least mid-November, comes as sectors of the population take to the streets to express their discontent over the new round of restrictions, which they have also described as “liberticide” and say constitute an attack on their fundamental freedoms.
“Nobody in their right mind would dispute the need for an effective and decisive coronavirus policy,” the scholars wrote, adding that, for the second time, Belgium was being hit hard by the pandemic.
But the perceive flouting of the country’s constitutional framework by the federal and by three regional governments is cause for concern. “That is why we have decided to file an appeal seeking the annulment of the curfew to the Council of State.”