At the time this article was
written Francis Delpérée was Dean of the Faculty of Law at the Université
Catholique de Louvain, Belgium. This article is based on the brief he presented
to the Special Joint Committee on the Process for Amending the Constitution of
Canada in May 1991.
In a Constitution no provision is
more important than any other, all contribute equally to the dignity of the
constitutional rule. There is however one provision, and perhaps only one, which
warrants closer examination: that which specifies how a Constitution may be
The insertion of an amending
formula into the Constitution is a most striking phenomenon, one whose full
import is not always appreciated. In this instance the Constitution does not
regulate the exercise of public powers, nor does it specify the rights of
members of the political establishment. In a more straightforward way, the
Constitution talks about itself and establishes its own status.
In other words, in one or several
provisions that have constitutional force, the Constitution describes its own
nature and purpose and how it can be amended. From both a political and a
technical standpoint, no government or citizen can ignore this message.
From a political standpoint, the
provision prescribing the amending formula summarizes the State's basic
principles and values. For its own transformation, the Constitution requires
the respect of what it holds most dear. Not that the Constitution intends to
dictate its laws to future generations, this would be preposterous. It simply
wishes to safeguard the interests under its care.
For instance, the amending
provision will reveal whether the Constitution is rigid or flexible. In adopting
a flexible Constitution, the State expresses its wish to adjust without delay
to economic or social changes. On the other hand, the adoption of a rigid
Constitution reflects the State's will to remain true to its initial concerns
and to avoid sudden institutional upheavals.
From a more technical standpoint,
the provision that lays down the conditions, pertaining both to form and
content, under which the political organization of a State may be altered leads
to other constitutional provisions. The Constitution's adoption procedure
foreshadows the political system's main characteristics, the amending procedure
As another example, the provision
may stipulate that one or several legislative assemblies are to be involved in
the Constitution-framing process. In such case, the State directly signifies
its adherence to a parliamentary system of government. It may, on the other
hand, opt for procedures in which the various communities have their say. In
such case, the State views itself as a composite society and its institutions
as one element.
Article 131 of the Belgian
Constitution is no exception to the rule. It is the key provision, some might
be tempted to call it the "lock and key" provision of a particularly
rigid Constitution. Adopted on February 7, 1831, it has never been amended.
Recent reforms of the Belgian
state, which are designed to gradually transform the unitary character of the
State into a federal one, have led to the introduction of indirect methods of
revising the Constitution. Since 1970 special laws have been enacted through
procedures similar to those used to amend the Constitution.
The Amending Process
Article 131 of the Belgian
Constitution reads as follows:
The legislative power has the right
to declare that it is necessary to revise such constitutional provision as it
shall designate. After this statement, both Chambers are automatically
dissolved. Two new Chambers will be convened in accordance with article 71.
These Chambers, in agreement with
the King, shall decide the points submitted for revision.
In this case, the Chambers may not
debate unless at least two-thirds of the members of each of them are present
and no change shall be adopted unless it secures at least two-thirds of the
total votes cast.
The text provides an answer to
three simple but fundamental questions: Who undertakes the revision of the
Constitution? What is amendable? What is the procedure for amending the
Initiator of amendment
The wording of the article is
clear: the constituent assemblies, in agreement with the King, decide the
points submitted for revision. In other words, the constituent power is made up
of three branches: the House of Representatives, the Senate and the King. The
concurrence of these three public authorities – a common agreement, as
specified in paragraph 4 – is required for any change.
This rule is significant, both for
what is excluded and what is prescribed.
The Belgian Constitution does not
resort to a national convention system, under which an ad hoc assembly is
elected for the sole purpose of altering the constitution. It is wary of an
institution that might challenge and even supersede the Legislative Chambers.1
For the same reason, the Belgian
Constitution does not call on the population, via a referendum, to amend the
Constitution. Since it prohibits legislative referendums,2 it has
all the more reasons to oppose referendums on the Constitution.
According to the Belgian
Constitution, only the branches which customarily exercise legislative
authority, that is under article 26 of the Constitution the House of
Representatives, the Senate and the King, may amend the Constitution. It is
understood that any one of these branches may take constitutional initiatives,
as it may take legislative initiatives.3
This rule raises a fundamental
question. In Belgian law, are the Constitution-framer and the lawmaker one and
the same authority? With the exception of the special majorities required in
order to take effective constitutional action, the constituent power appears to
be identified with the legislative power. To put it in different terms, the
legislative authority appears to be vested with a legislative function, its
customary function, and with a constituent function in exception cases.
In fact, this is only an optical
illusion. As will be shown, the bicameral parliament, which made up of elected
representatives, can only undertake the revision of the Constitution as such
after two new Chambers have been formed.
Thus amending authority is vested
in the two new Legislative Chambers, made up of "freshly elected
members" in the words of Georges Burdeau, and in the King.4
Object of Amendment
Article 131 of the Belgian
Constitution lays down two principles. In the first place, any constitutional
provision may be amended; there are no supra-constitutional texts that are
beyond the jurisdiction of the amending authority;5 no article is
taboo6. In the second place, the whole Constitution cannot be
revised at once, this is inconceivable. Only partial revisions may be carried
A secondary question should be
addressed here: can the provisions of article 131, which lay down the rules for
amending the Constitution, themselves be amended? Undoubtedly, the answer is
yes. The practice7 is indeed to that effect. Articles 84 and 1318
of the Constitution specify when a revision may not be undertaken, thereby
amending, at least indirectly, article 131 of the Constitution. However two
clarifications are essential.
The first relates to procedure,
"131 shall be amended in accordance with 131"9. To be less
cryptic, this means that the amending procedure can only be amended according
to the rules laid down in the prevailing Constitution and not according to the
rules set forth in the amendment proposal.
The second relates to content. In
my opinion, the provision which institutes the constitutional amendment
procedure cannot be repealed, nor can it be altered in such a way as to abolish
any distinction between constitutional rule and the rules established by
constituted authorities. Reforms cannot be introduced with a view to
establishing an on-going constitutional amendment process.
The Constitution-framing authority
cannot destroy the very basis of its own competence. To use an image, this
would amount to sawing off the branch on which one is sitting.
The Belgian State favours only
partial and gradual revisions of its Constitution. For this reason, it has
devised a procedure which includes three separate phases: the initiative, the
dissolution and the revision proper.
Any member of the bicameral
parliament may file a proposal to declare the need for the revision of
such-and-such an article in the Constitution; similarly, the King may submit a project
to declare the need for a revision. The proposal or project is then reviewed
according to a procedure similar to that used for legislative purposes.
The constitutional amendment
process as such cannot be undertaken unless the initiative results in the joint
formulation of declarations of the need for a revision by the two
Chambers, on the one hand, and by the King on the other10. In doing
so, the three branches express their common will to amend a particular
constitutional provision. The declarations are published in the Moniteur
We should specify that at the preconstituent
stage, the Legislative Chambers proceed according to their customary rules,
that is by absolute majority. At the constituent stage, they proceed according
to the two-thirds majority rule.
The declaration of the need for a
revision must meet a formal condition: it must designate the
constitutional provisions that will be subject to a revision. A general
reference to a heading, chapter or section is considered too vague. The
declaration should refer specifically to an article, and even to a subsection,
paragraph or sentence member.
Can the declaration go beyond the
constitutional prescription and specify not only the need for a revision but
also how the Constitution should be revised? Such an initiative would be
incorrect11. Preconstituent assemblies are not empowered to do the
work of constituent assemblies. Were the declaration to ignore this
prescription and specify the orientation of the revision, obviously the
amending authority would not be bound by the stipulation.
Upon publication of joint
declarations of the need for constitutional revision, the Legislative Chambers
are dissolved. As specified in article 131, paragraph 2, "both Chambers
are automatically dissolved". The executive branch does not set the date
of their replacement: "in accordance with article 71", there is a
convocation of the electorate within forty days, and to the new Chambers which
are now constituent within two months.
During the election campaign,
candidates and their parties have the opportunity of taking a stand on the
constitutional issues that will be debated by the newly-elected
representatives. At the polls, private citizens have the opportunity of making
political choices by voting for the candidates who will put forward their views
during the constitutional debates.
Thus the dissolution has a
particular consequence, that of involving, if only very indirectly, the
electorate in the revision of the Constitution12.
As described in paragraphs 4 and 5
of the Constitution, the amending process has three main characteristics.
First, the process is optional. The
declaration of the need for a revision does not mandatorily require the
constituent assemblies nor the government in power to take constitutional
initiatives. It is purely an enabling declaration, an authorization to revise
the Constitution. Based on the political situation and the parliamentary
majorities it enjoys, the government will decide whether or not to bring before
the constituent assemblies concrete projects. Members in either assembly
may also choose to submit concrete proposals.
Second, the process has
limitations. The newly-elected representatives have a maximum of four years –
their term of office – in which to take effective action. In addition, there
are limitations with regard to the object of the revision. The constituent
authorities may only decide "the points submitted for revision"
(paragraph 4). They cannot as a matter of course review issues which, in their
opinion, should be settled. It is absolutely prohibited to amend articles which
do not appear in the declaration of the need for a constitutional revision13.
Third, the process is exceptional.
This explains why the procedures for amending the Constitution are so complex.
Each constituent assembly may decide the points submitted for revision only if
it secures a two-thirds majority at two successive stages. At the first stage,
a quorum of attendance is required: at least two-thirds of the members
must be present at the debate. At the second stage, a quorum of votes is
required: at least two-thirds of the total votes cast (abstentions need not be
taken into consideration at this point) must be secured in order to adopt a
Finally the King decides, "in
common agreement with" the constituent assemblies, the points submitted
for revision. He sanctions resolutions amending articles in the Constitution,
promulgates the new provisions and sees to their publication in the Moniteur
belge. Revised provisions are effective from the date of revision.
Assessment of Amending Process
It goes without saying that in
assessing an amending process, as instituted by the Constitution of a given
State, the political and social context must be taken into consideration. Consequently,
the following assessment of the strengths and weaknesses of the process for
amending the Belgian Constitution will take into account the distinctive
characteristics of Belgian society.
With regard to amending
authorities, Belgium's constitutional system appears satisfactory. Involved in
the amending process are the legislative assemblies, which are made up of the
nation's representatives, the government, which defines the general directions
of the body politic, and finally even the electorate14, the primary
recipient of new constitutional standards. Thus all parties concerned are
invited to take part in an operation which is essential in the life of the
With regard to what is amendable,
Belgium's constitutional system also appears adequate. Any constitutional
provision may be amended if necessary. New articles may also be inserted so
that the Constitution may keep abreast of developments in the economic, social
or cultural field, for instance, and reflect the current concerns of the
With regard to amending procedures,
Belgium's constitutional system is discussed more extensively. During periods
of intense political discussions, it has the advantage of "calming things
down". It is impossible to "get everything and to get it now".
The staggering of the amending process over three successive phases, the
suspension of government and parliamentary activity, and the chronological
development the process supposes all contribute to funnel the evolution of ideas
and facts. Decisions are not taken abruptly, solutions are developed gradually
and passions and emotions cool down in the process.
In this sense, the Belgian
Constitution – a particularly rigid Constitution – is designed so as to
preserve the equilibrium which provided the basis for the foundation and
organization of the Belgian State. It has built-in barriers to upheavals whose
consequences would be unforeseeable.
With regard to amending
authorities, one question arises: how is it that the Constitution of a State
that has been borrowing for over twenty years certain characteristics of
federalism15 has not seen fit to give collectivities, that is the
Communities and Regions, the opportunity of voicing their concerns when the
Constitution is being amended? This despite the fact that the main purpose of a
Constitution is to lay down rules for the sharing of powers and the
distribution of means among the various political institutions.
There are two possible explanations
for this anomaly.
On the one hand, a new
constitutional provision can be adopted only if, in each legislative assembly,
there is a two-thirds majority vote in its favour. In a political context where
one community (the Flemish community) represents 58% of the population, the
66%-majority requirement provides a kind of guarantee for the minority
community (the French-speaking minority); it does not, however, provide any
guarantee whatsoever for the third community (the German-speaking community –
which numbers 65,000 people in a country with 10 million inhabitants.
On the other hand, constitutional
amendments require government input – the latter may either submit its projects
to the parliamentary assemblies or reserve the right to sanction the
assemblies' proposals. In a State where, pursuant to article 86 of the
Constitution, the two major linguistic communities must be equally represented
on the Council of Ministers16, this amounts to giving the two
communities represented in the central government the equal right of
participation in the amending process.
With regard to what is amendable,
Belgium's constitutional system does not give rise to any criticism.
With regard to amending procedures,
the system is generally considered excessively rigid, in at least three
First, because the amending process
is in three separate phases, procedures tend to be lengthy. It may prove
impossible for Belgian authorities to expedite revisions that are urgently
Second, the fact that the
legislative assemblies have to be dissolved jeopardizes the smooth running of
the government and parliament. Let us illustrate this point: say the
government, at the opening of the legislature, decides that such-and-such a
provision in the Constitution should be revised. It immediately submits a
declaration of the need for a revision and if the Chambers decide to adopt it,
then the latter are automatically dissolved and a general election is called.
Nothing guarantees that the Chambers will be returned with the same majority.
This might force the government to resign.
In other words, in declaring the
need for a revision, the government and parliamentary majority are in fact
committing "hara-kiri". Faced with such a prospect, they may well
decide not to undertake a revision even though it might be absolutely
Third, the requirement for a series
of different majorities also jeopardizes the adoption of a new amendment.
Preconstituent assemblies follow the absolute majority rule while constituent
assemblies follow the two-thirds majority rule. As a result of the elections,
the government may no longer enjoy the two-thirds majority required in order to
take effective action. In other words, these redoubled political hazards may
jeopardize the revision of the Constitution.
This series of drawbacks has
affected the political system. As early as 1831, Joseph Lebeau warned the
National Congress that "if changes to the Constitution cannot be made as
soon as the consensus turns against it, it will be infringed or scorned".
An unduly rigid Constitution may lead those in power to bypass its
Proposals for Reform
There have been numerous proposals
to amend article 131 of the Belgian Constitution. The following does not claim
to be an exhaustive list of all the proposals put forth by the various
political parties; it does, however, give a general idea of the thinking in
Some proposals are extremely
radical. According to some, article 131 of the Constitution must be revised
since "the constituent elements of the sovereign Flemish nation will
control the future implementation and revisions of the Constitution".
Others advocate the institution of
an on-going amending process. According to the Volksunie, for instance, article
131 of the Constitution must be amended so that "the Constitution may be
amended at any given time, as long as a two-thirds majority is secured".
The rule would not apply to "articles pertaining to fundamental rights and
Yet others advocate a reform based
on the principles of a more participatory democracy. In the opinion of the
ecological movement, the "procedure for amending constitution provisions
should be more flexible" and provision should be made for a revision
"based on a referendum to vote on a people's initiative".
The French Socialists favour a
different approach. They believe, in particular, that article 131 of the
Constitution should be revised so that it would be possible to amend the
Constitution without any preliminaries and by introducing a special "dual
majority procedure" (among the French elected representatives and among
the Flemish elected representatives). This rule would not apply to provisions
pertaining to fundamental rights and freedoms.
In commenting on these various
proposals in 1975, I stated the following: "The procedures described in
article 131 differentiate the Constitution from both ordinary and special laws.
To modify and simplify constitutional amendment rules would lower the value of
constitutional prescriptions. No doubt, in one way or another, the Communities
should be involved in the amending process. For instance, a majority in each
linguistic groups could be required under paragraph 5 of article 131. As to the
rest, it seems inappropriate to suggest the ongoing revision of a document
which must benefit from the stability conferred upon it by the support of the
majority. In reviewing this ill-prepared file, I do not see the need to change
one iota of article 131 of the Constitution"17.
Adjusting the Amending Process
In 1970, due to the rigidity of the
Belgian Constitution, a procedure to carry out institutional reforms was
initiated. It may be useful to describe it here. The status of public
institutions may be altered through the adoption of a special law, without
having to resort to a constitutional amendment. We may well wonder whether the
two procedures are not bound to draw nearer in the future.
Development of Special Laws
In several of its provisions, the
Belgian Constitution simply lays down a few broad rules. For their
implementation, the Constitution does not appeal to the law (that is to the
legislator who makes a ruling based on absolute majority). Rather the
Constitution relies on a special law (which can only be enacted if there is a
two-thirds majority vote in is favour).
An example will illustrate the procedure.
Article 107 quater of the Belgian Constitution lays down the following rule:
"Belgium comprises three regions: the Walloon region, the Flemish region
and the Brussels region". It makes no mention, however, of the regional
authorities that will have to be created, nor does it specify their future
duties, the administrative or financial resources that will be put at their
disposal, their territorial jurisdiction.
Paragraph 2 then goes on to specify
that a special law shall attribute "to the regional organs which it
creates and which are composed of elected representatives, the power to
regulate such matters which it determines, with the exception of those referred
to in articles 23 and 59 bis, within the scope and manner as it
This enabling provision was
implemented through the adoption of the Special Law on Institutional Reforms on
8 August, 1980. The Law contains 98 articles subdivided into numerous
subsections and paragraphs. The Law is an extension of the Constitution, it
gives the Regions their effective status18.
The procedure is used in ten or so
constitutional provisions, all dealing with major issues related to the status
of public institutions.
Every time a special law is
required, a quorum of attendance as well as a quorum of votes must be reached.
The quorum of attendance is 50% in each legislative assembly and half the
members in each of the two linguistic groups must be present.19 The
quorum of votes is set at 66% in each legislative assembly – as it is set for
constitutional matters but here again, half the members in each linguistic
group must vote in favour of the project.
Significance of Special Laws
In certain respects, such as the
manner and the political context in which it is evolved, a special law is very
similar to a constitutional standard. Not that the special law can be classed
as a constitutional standard: it does not fulfil all the formal conditions
prescribed in article 131. It does not have constitutional force and must
therefore comply with the provisions of the Constitution.20
The fact remains, however, that the
Constitution and the special law are complementary. Without the intervention of
the special law the Constitution would remain a dead letter. Conversely,
without the intervention of the Constitution, the special law would not be able
to give a matter its precise outline.
Constitution and Special Laws
In several respects, the respective
procedures used to promulgate the Constitution and special laws are similar.
The matters dealt with are also similar.
A leaning in this direction can be
detected already and the patterning of constitutional majorities on the model
of special legislative majorities is being considered. Paragraph 5 of article
131 would have to be amended as follows:
"In this case, the Chambers shall
not debate unless at least two-thirds of the members of each of them are
present and unless the majority of the members in each linguistic group are
assembled. No change shall be adopted unless it secures at least a
majority of the total votes cast in each linguistic group of each Chamber, as
long as the total affirmative votes cast in the two linguistic groups
corresponds to two-thirds of all votes cast".
The proposed formula would have the
advantage of showing, more clearly than it does now, that any revision of the
Constitution is the fruit of a solid consensus between the two major
communities that make up Belgium.
The Belgian Constitution is perhaps
one of the most rigid in the world. Yet three major revisions were undertaken in
the last twenty years: in 1970, 1980, and 1988. A few minor amendments were
also carried out in 1991. This would indicate that there is no need to
radically alter the procedures for amending the Constitution.
The Belgian Constitution is rooted
in the notion of parliamentary sovereignty. Yet by prescribing general
elections prior to the actual revision of the Constitution, it manages to
consult Belgian citizens. In a dualistic society, a referendum on the
Constitution would be much more ticklish.
The Belgian Constitution is a
Constitution which, in most of its provisions, may appear very federalist – in
the sense of autonomist – yet its amending procedure is primarily unitary in
character. Undoubtedly, there is a need to shed this appearance and to model the
majorities required for the adoption of a new Constitution on those required to
enact a special law.
1. Francis Delpérée, Droit
constitutionnel, vol. 1, Les données constitutionnelles, (Brussells:
Larcier, 1987, 2nd ed.), No. 48.
2. Referendums (under the
direction of F. Delpérée), Brussells: Ed. CRISP, 1985). See in particular the
reports on Belgium by Y. Lejeune and J. Regnier (p. 13) and on Canada by G.-A.
3. Constitution, article 27:
"The right of initiative is vested in each of the three branches of the
4. The fact remains, of course,
that when the Legislative Chambers are vested with constituent authority they
are called upon to perform two separate duties.
5. See M.-F. Rigaux, La théorie
des limites matérielles à l'exercice de la fonction constituante, with a
foreword by P. De Visscher, (Brussells: Larcier, 1985).
6. Belgium has entered upon a
series of international agreements, in the area of human rights for instance.
It goes without saying that the State would not abolish or amend in a
restrictive manner the provisions in its own Constitution that pertain to the
matters covered in such agreements.
7. Constitution, article 84:
"During a regency, no change can be made in the Constitution which
concerns the constitutional powers of the King and the articles 60 to 64 and 80
to 85 of the Constitution".
8. Constitution, article 131bis:
"No revision of the Constitution may be undertaken, nor pursued in time of
war or when the Chambers are prevented from meeting freely on the national
9. F. Delpérée, "Quelques
aspects constitutionnels d'une crise politique", Annales de droit de
Liège, 1974, p. 27.
10. The declarations remain
separate documents. Only those provisions referred to in all the declarations
are amendable. A provision mentioned in only one declaration is unamendable.
11. Unless the purpose is to insert
a new provision into the Constitution in order to settle an issue not dealt
with in any other provision.
12. F. Delpérée, "Ma
Constitution et mon juge", Le Vif-L'Express, February 9, 1990.
13. We must also condemn the
practice followed by the government and constituent assemblies which consists
in amending in an article submitted for revision the provisions of another
article itself not subject to revision. The use of such a "billiard
technique" is in flagrant violation of the rules governing the amendment
of the Constitution.
14. However is the electorate
really aware of the constitutional issues at stake? The choice of voters could
well be based on more immediate concerns, such as the government's overall
policy or even the personality of the candidates running for election.
15. F. Delpérée, "La Belgique,
État fédéral?", Revue du droit public et de la science politique,
1972, p. 607. By the same author: "L'organisation des communautés et des
régions", Revue générale de droit. Editions de l'Université d'Ottawa,
1983, No. 1, p. 213; "La voie fédérale", Journal des Tribunaux,
1989, p. 2; "Le nouvel Etat belge", Pouvoirs, 1990, No. 54, p.
16. Constitution, article 86:
"With the possible exception of the Prime Minister, the Council of
Ministers comprises an equal number of French-speaking and Dutch-speaking
17. F. Delpérée and F. Jongen, Quelle
révision constitutionnelle? (Brussels: Bruylant, 1985), p. 207.
18. F. Delpérée, Droit
constitutionnel... No. 40: "The Special Law does not only ensure the
application of a broad rule. It is an extension of the Constitution and
converts it into a reality. It is this law which concretely reorganizes public
institutions and the balance of power".
19. Constitution, article 32:
"For those cases determined in the Constitution, the elected members of
each Chamber are divided into a French-language groups and a Dutch-language
group in the manner established by the law".
20. F. Delpérée, "La
Constitution, la loi, le décret et l'ordonnance", Journal des Tribunaux,
1990, p. 107.