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The Legality-Legitimacy Bifurcation in the Analysis of Constitutional Amendments: A Case Study of Belgium's State Reforms

Published online by Cambridge University Press:  19 May 2025

Toon Moonen
Toon Moonen*
Affiliation:
ConstitUGent, Ghent University, Belgium
*
Email: toon.moonen@ugent.be
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Abstract

Many legal rules and principles may govern constitutional amendment. Observance of these rules and principles is an elementary focus point for the study of constitutional change. But constitutions do not exist solely in a legal reality. They are a cornerstone of the body politic in which they are adopted. Studying constitutional amendments through the lens of their legitimacy requires more than merely assessing their legality. However, distinguishing legitimacy from legality raises the question of whether an illegal amendment can still be considered legitimate, and conversely, whether a legal amendment can still be deemed illegitimate. Through a case study of constitutional overhauls in Belgium in the post-war period, I explore how these two possibilities manifest in practice, demonstrating that at crucial occasions in a state's history, amendments deemed illegal may be legitimised, and technically legal amendments may face criticism regarding their legitimacy.

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Article
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Asian Journal of Comparative Law , Volume 19 , Special Issue 3: Constitutional Legitimacy and Amendments , December 2024 , pp. 457 - 472
Copyright
Copyright © The Author(s), 2025. Published by Cambridge University Press on behalf of Law Faculty, National University of Singapore

Introduction: the Legality-Legitimacy Bifurcation

Both in a descriptive and a normative sense, by and large, constitutions are expected to evolve with the societies they serve. In the case of written constitutions, this evolution occurs not only through interpretation and practice but also through formal amendments to their text. Such amendments typically require compliance with specific, demanding procedures. These may include supermajorities, popular consent, or, in multi-layered contexts, ratification by sub-national entities.Footnote 1 Indeed, a wide variety of rules and principles governing constitutional amendment are conceivable, and adherence to them is naturally a key consideration in the evaluation of constitutional amendment.

However, constitutions do not solely exist in a legal reality. They are a cornerstone of the body politic in which they are adopted. Studying constitutional amendments through the lens of their legitimacy, as is the focus of this special issue, requires more than merely assessing their legality, understood as compliance with applicable legal norms.Footnote 2 Reminiscent of more general process- or outcome-related theories of legitimacy, it has been argued that the legitimacy of a constitutional arrangement can be derived, first, from its representational, and second, from its reason-based nature. Under the first approach, a legitimate constitutional arrangement properly reflects the people's preferences and values. From this point of view, legitimacy is a matter of autonomy of the people who constitute the political community that the constitution serves. If the constitution enshrines their preferences or values, then it is justified for that constitution to form the basis of government authority. The second approach focuses on the constitution's content. An arrangement is considered legitimate if it is good and fair. This implies a moral determination, based on a set of values, that is able to provide the reasons why a constitution is worth abiding. Usually, legitimacy is claimed from both angles, even if not necessarily in equal measure.Footnote 3

To be sure, the concepts of legality and legitimacy cannot be fully separated. Indeed, observing legal amendment requirements may serve legitimacy both in a representational and a reason-based way. Representationalists can argue that the legal rules for constitutional amendment, if these rules are themselves considered legitimate, provide a presumption that amendments adopted in accordance with them do indeed represent the people's preferences or values. Those more inclined to a reason-based approach can defend compliance with formal amendment rules by arguing that, if the amendment procedure is good law, it is likely to produce better substantive constitutional law than deviating from it would. According to the Council of Europe's Venice Commission,Footnote 4 it is a general principle

that any major constitutional change should preferably be done according to the prescribed formal amendment procedures. Indeed, one of the central objectives of strict procedures is to guarantee the legitimacy of constitutional change.Footnote 5

There is a certain ambiguity to this statement, though. Intuitively, most would agree that legitimacy is a broader concept than legality, and that following legal rules and principles is a precondition for the legitimacy of a constitutional amendment. But if it is merely preferable that major constitutional change be channelled through those procedures, does this mean that observing formal procedures is not always necessary for an amendment to be legitimate?

Distinguishing legitimacy from legality raises the question of whether an illegal amendment can still be considered legitimate, and conversely, whether a legal amendment can still be deemed illegitimate. That is my focus here. Through a case study of constitutional overhauls in Belgium in the post-war period, I examine how these two possibilities play out in practice. To this end, I reflect on the issue of the legitimacy of constitutional amendments primarily from the perspective of the political protagonists involved in adopting them, but also considering how recent developments have been perceived and interpreted in academic discourse.Footnote 6

While the case study is Belgian, I would be surprised if the underlying tension were unique. By illustrating how the legality-legitimacy bifurcation plays out in a specific institutional set-up, it becomes clear how, at crucial occasions in a state's history, amendments deemed illegal may be legitimised, and how technically legal amendments may still be criticised regarding their legitimacy. These observations may be of service to those who take an interest in Belgian constitutional politics, but also to readers more broadly engaged with change in constitutionalist democracies. At the same time, the case study shows that the assessment of constitutional amendments (even in a comparative setting) can never follow a one-size-fits-all approach, nor can it be divorced from its specific historical and political circumstances.

In the following section, I will explain how Belgium's socio-political evolution has necessitated a series of state reforms, which have been accompanied by complex amendment programmes. These amendments were not always compatible with the formal amendment procedure. The next two sections will focus on two phenomena of particular interest: first, the era of ‘implicit constitutional amendments’ since 1970, then the ‘temporary amendment procedure’ adopted in 2012. I will then situate both in the context of the legality-legitimacy bifurcation, with particular emphasis on the consociational nature of the Belgian socio-political system. In the penultimate section, I will argue that distinguishing legitimacy from legality adds a useful dimension to our understanding of constitutional change.

State Reform and the Need for Complex Amendment Programmes

The Belgian Constitution dates back to 1831 and is one of the oldest constitutional documents still in force today. It is characterised by a rigid amendment procedure. Article 195 of the Constitution, which itself has never been structurally amended, sets up a three-stage procedure. First, the federal legislative branch (consisting of both chambers of Parliament and the King)Footnote 7 declares that there are reasons to revise such constitutional provisions as it determines. In doing so, it is said to exercise ‘pre-constituent powers’. Second, following such a declaration, a new Parliament is convened through general elections. Third, the new Parliament decides, by common accord with the King, on the points submitted for revision. This is done on condition that at least two thirds of the members in each chamber are present, and no change is adopted unless it is supported by at least two thirds of the votes cast.Footnote 8 At this stage, the members of Parliament are said to be exercising ‘constituent powers’.Footnote 9 Most consider the constituent assembly not to be bound by the intentions of the pre-constituent assembly with regard to the content of an article open for amendment, provided that it respects its subject matter.Footnote 10

Amending the Constitution is a difficult undertaking. Not only is a supermajority required; there is also an election between the consideration of an amendment and the vote to secure it. This strict procedure was installed in the aftermath of the Belgian Revolution in part in an effort to impose stability. The requirement to plan and secure support over multiple sessions of Parliament, as a safeguard against hasty constitutional changes, is central to its rigidity. Although it has not prevented amendments in modern political life, it does make constitutional change more cumbersome, even when there is broad support for it.Footnote 11

For a very long time, the original Constitution had remained unchanged. The only formal amendments during its first century of existence – in 1893 and 1921 – related to voting rights. Over the course of the next decades, however, socio-political pressure mounted to change the constitutional architecture. This resulted in a series of ‘state reforms’ from 1970 onwards. The evolution from a centrally governed system to a federal institutional set-up is the core result of these reforms.Footnote 12 In the next few paragraphs, I will briefly explain why and how this happened.

Belgium qualifies as a so-called ‘divided’ society.Footnote 13 The origin of this divide lies in the different languages that have historically been spoken in the country: Dutch in the North, French in the South and among social elites. Throughout the 19th century, the Belgian political scene was dominantly French-speaking. Concessions towards recognising Dutch as a language of government, for example by drafting official versions of laws in both languages, were long resisted. Over time, the French-language political monopoly proved increasingly untenable and led to conflict. In addition to Dutch-speaking cultural and language revendications, a movement for economic regional autonomy developed in French-speaking milieus. The solutions to these conflicts are relevant here, as some of them have been entrenched in the ConstitutionFootnote 14 and continue to shape political dynamics in Belgium today.

Scholarship has identified roughly two (descriptive or normative) ways in which democratic societies handle conflicts between groups with distinct identities in one constitutional sphere. Following a ‘consociationalist’ approach, conflicts are controlled through the proportional engagement of all groups in government and the introduction of various types of group autonomy and veto-power. Politics is organised along group lines and based on consensus. Essentially, ‘the centrifugal tendencies inherent in a plural society are counteracted by the cooperative attitudes and behavior of the leaders of the different segments of the population’.Footnote 15 Following an ‘integrationist’ approach means the opposite: from this perspective, institutional or electoral design is not aligned with group identity (nor, for example, are political parties) because this exacerbates or perpetuates tensions between groups. In this case, politics can be majoritarian. Both approaches testify to a different view of group and individual identity in a political context where at least some features of government are shared for historical, territorial, or other reasons.Footnote 16

In Belgium, the approach eventually chosen to deal with the political tensions resulting from the language divide has been distinctly consociationalist, in a corporate (assuming a fixed and homogenous identity) and territorial (implying regional segmentation) variety.Footnote 17 With regard to language, full government bilingualism on the entire territory was considered during the interbellum period, but ultimately rejected. In the 1960s, a system based on linguistic regions was agreed upon, subjecting all levels of government to complicated language regimes.Footnote 18 At the same time demands for political autonomy grew from mostly Dutch-speaking elites that were growing in numbers and economical power.

From 1970 onwards, many of the properties attributed to consociationalism in the literature (grand coalitions, group autonomy, veto rights, and proportional representation at various levels)Footnote 19 were introduced into the country's constitutional arrangements. They represent a carefully brokered balance between the interests of Dutch and French speakers.Footnote 20 Importantly, the Belgian state turned from a unitary into a federal project.Footnote 21 As the Constitution provides, Belgium is a federal state with federated entities based on linguistic regions.Footnote 22 These entities have wide-ranging autonomous powers. In addition to group autonomy, federal politics are largely determined by the need for consensus between the Dutch- and French-speaking communities. The federal Parliament is divided into two linguistic groups. Amendments to the laws governing relations between the linguistic communities, including many of the powers of the federated entities, require not only a supermajority overall, but also a majority in each linguistic group.Footnote 23 Moreover, a supermajority within each linguistic group can suspend the adoption of any federal legislation.Footnote 24 The federal Cabinet is composed of an equal number of Dutch and French speakers,Footnote 25 and according to practice, it decides by consensus. These measures provide French-speakers (who are demographically outnumbered) with a federal veto.Footnote 26 Representation of both groups in other institutions, such as the judiciary, is also carefully balanced.

Adding to the consociational nature of the institutions is the fact that since the 1960s, most major political parties have split along language lines, operating (including electorally) exclusively on the territory of their language group.Footnote 27 A split in the media, alongside the defederalisation of powers over cultural policy, has meant that there are no national (bilingual) newspapers, television or radio stations. Recently, there has been an emergence of more distinct political identities in Brussels and the (small) German-speaking territory, where federated entities are based that exercise proper competences. Despite this, Belgium has so far remained an essentially bipolar political construction. Within these broad boundaries, the most recent state reforms (of which there have been six in total in the course of five decades) have focused on shifting powers from the federal government to the regional entities. It is from the entrenchment of these new socio-political equilibria that the constitutional set-up of the country received a renewed legitimacy. Crucially, across the political spectrum, the resulting state structure and power balance is seen by many as unfinished and further state reform as inevitable.

Here, however, the constitutional amendment procedure interferes with the consociational logic. State reforms have been the result of increasingly lengthy political negotiations. They have involved a multitude of connected and disconnected changes to the institutional architecture. Solutions were based on the idea that all negotiating parties must be able to emerge as winners. Grand coalition agreements, combined with a certain opacity about the deals, made this possible. The content of such state reforms had never been fully clear in the pre-negotiation stage. These negotiations are conducted by political leaders who deploy their electoral weight as a bargaining tool in the effort to reach supermajority thresholds.

As a result, implementing state reforms has required complex amendment programmes, which appeared a bad fit for the formal amendment procedure in Article 195 of the Constitution.Footnote 28 This procedure was designed in unitary times and was aimed at more limited constitutional change. Not all complexities of a state reform can be foreseen at the stage of declaring a constitutional amendment, if only because the mandatory intervening elections can shake the political landscape and lead to negotiations of a different nature and outcome than expected.

One could argue that this simply means that state reforms must be developed within the limits allowed by the constitutional amendment procedure. The legislative branch, acting in its pre-constituent capacity, would then determine the possible scope of any state reform enacted after the elections, regardless of the positions of the political parties that emerge as winners. Negotiations on a state reform would have to be conducted in terms of what is constitutionally feasible, not in terms of what is politically preferable. In reality, this has not always been the case. Where necessary, strong political forces for change have caused the constitutional order to evolve in alternative ways. In 1970, for example, the constituent assembly chose to remove a series of matters from the text of the 1831 Constitution and provided for their elaboration in so-called ‘special laws’, adopted by a supermajority different from the constitutional one and amendable in a single parliamentary term.Footnote 29 As such, they have often proved a more attractive mechanism for change.

For the purposes of this article, it is important to note that the rigidity of the Constitution has also given way to more murky evasion strategies. Two distinct but related phenomena are of interest here. The first is the emergence of ‘implicit’ constitutional amendments since 1970. The second is the adoption of a ‘temporary’ amendment procedure in 2012.Footnote 30

Ghosts from the Past: Implicit Constitutional Amendments

The limits set by Article 195 have not prevented the political branches from pushing through state reforms that would have been impossible to enact from a purely procedural point of view. Early on, this was evidenced by the emergence of so-called ‘implicit’ constitutional amendments. An implicit constitutional amendment occurs when the text of a constitutional provision remains formally unchanged, but its normative meaning is changed by the introduction or amendment of another constitutional provision.Footnote 31 When a constitutional provision is amended implicitly, its normative meaning can no longer be understood by reading the provision in isolation. Instead, the provision must be interpreted in conjunction with the provision that implicitly amended it. Implicit constitutional amendments have been a familiar feature of the amendment landscape since the adoption of the First State Reform in 1970.

Implicit constitutional amendments are procedurally problematic, although they do not all deserve the same level of criticism.Footnote 32 If the provision being implicitly amended has been formally opened for amendment by the pre-constituent assembly, then the implicit character of the amendment does not make it illegal – it might merely be inelegant in terms of legislative technique and potentially confusing. For example, ever since Belgium's independence in 1831, Article 30 of the Constitution has affirmed that the use of languages is free and can only be regulated by law in matters of government and justice. Yet, in 1970, upon the creation of the first kind of federated entities in the country (the ‘Communities’), a new Article 129 of the Constitution was added, granting the newly established Flemish and French Communities the power to regulate the use of languages not only in government, but also in education and employment relations. Although Article 30 had been opened for amendment by the pre-constituent assembly, it eventually remained unchanged.Footnote 33 Instead, the constituent assembly was now signalling elsewhere in the Constitution that language regulation could also extend to education and employment relations.

In contrast, there are also implicit amendments that clearly circumvent the first two stages of the procedure laid out in Article 195 of the Constitution, namely if the provision being implicitly amended has not been formally opened for amendment.Footnote 34 In a first phase, political actors played down the significance of such illegality. For example, still in 1970, the Constitution was amended to create ‘communities’, a particular form of autonomous institutions, which were supposed to have proper legislative powers. Critics argued that this came down to changing Article 36 of the Constitution, which determined how legislative powers were exercised in the (hitherto centrally organised) state.Footnote 35 The Cabinet thwarted this criticism by invoking the ‘popular will’, as expressed in the 1968 elections. In its view, the expression of more deeply reform-oriented electoral preferences rendered the limited ambitions of the pre-constituent assembly – which had ruled out tinkering with the legislative functionFootnote 36 – obsolete.Footnote 37 Members of Parliament added that rejecting the reform on the basis of ‘legal arguments’ would be interpreted as contradicting the need to grant federate autonomy and that ‘realistic and political arguments’ had to be given precedence.Footnote 38 Such implicit constitutional amendments would not be exceptions in subsequent state reforms.

In between the two kinds of implicit amendments, there is a grey zone. This is where amendments can be found of provisions that have not been formally opened for amendment, but where the pre-constituent assembly has made its intentions for change (somewhat) clear by contemplating the introduction or amendment of another provision. According to Article 39 of the Constitution, for example, the democratic institutions of the second kind of federated entities (called ‘regions’) are created by federal law. Nevertheless, since the Fourth State Reform of 1993, Articles 118(2) and 123(2) of the Constitution stipulate that the regional institutions may self-regulate certain aspects of their composition and functioning.Footnote 39 Notably, Article 39 and other related Articles had not been declared open for amendment. During the pre-constituent phase, the Cabinet had explained that it did not intend to affect the status of the federated entities ‘directly or indirectly’, but that it was nevertheless better to allow the constituent assembly a wide margin of manoeuvre.Footnote 40 The Council of State, a judicial advisory body, noted that these new powers ‘were not in harmony’Footnote 41 with the principles laid down in Article 39 of the Constitution. The political majority argued that while ‘technically’ these provisions did indeed change provisions implicitly that were not open for amendment, when Article 195 was drafted in 1831, it

had a very clear, limited scope: to be able to very accurately determine in a small, unitary state which constitutional provisions would be reviewed exactly. Since then, this position has been abandoned in many declarations for revision … Given that a constitutional revision is never an easy affair and that a revision for every Article taken individually is no longer possible, this somewhat unorthodox interpretation of Article [195] is definitely justified.Footnote 42

The prevalence of implicit constitutional amendments has waned since the Fourth State Reform,Footnote 43 and political attitudes towards their existence remain ambivalent. On the one hand, the Cabinet had admitted that implicit constitutional amendments were not legally permissible.Footnote 44 Also, some amendment bills that would result in an implicit constitutional amendment had been deemed procedurally inadmissible.Footnote 45 On the other hand, in defending a much-needed reform of the judiciary, the Cabinet in 1998 referred to previous practice and reiterated that implicit amendments became unavoidable as constitutional provisions were increasingly detailed.Footnote 46 This position was a defiant one, as only a few weeks earlier the Council of State had explicitly taken the position that implicit constitutional amendments were

absolutely in violation of Belgian constitutional law … Allowing implicit amendments, the danger is created that those who have agreed with the possibility of amending one provision but not another are deceived; the fact that they have agreed that a certain regulation is amended does not mean that they have agreed that another regulation is amended, whose meaning can depend on the former.Footnote 47

In 2003, for the first time in decades, Article 195 of the Constitution was itself included in the list of provisions open for amendment. The idea was to modernise the procedure. As a Cabinet member declared, one of the reasons was that ‘implicit amendments no longer can be tolerated’.Footnote 48 In 2007, the Prime Minister repeated that implicit amendments, ‘to put it mildly, have not benefitted the clarity and comprehensibility of our Constitution’.Footnote 49 Despite those well-intended resolutions, Article 195 of the Constitution was not amended.

From the above, it appears that at times of high pressure, political protagonists implicitly adopted a mix of representational and reason-based arguments to legitimise their decisions not to follow the amendment procedure to the letter. Not only did these protagonists assert to represent the popular will more accurately, they also framed the outcomes of their political negotiations as fair and appropriate for stabilising Belgian politics at the time. Outside of such periods of high pressure, there was less willingness to defend bypassing the amendment procedure.

Resurrection: the Temporary Amendment Procedure

As said, in the 1990s, the controversy over implicit amendments withered. On the occasion of the Sixth State Reform in 2012, Article 195 of the Constitution returned to centre stage with a vengeance. The problem was the same as it had been before. However, the solution took a different form, and it caused at least as much political and scholarly consternation as the implicit amendments had.

Ending a political crisis which had left the country without a fully-functioning federal Cabinet for a record-breaking 541 days, by the end of 2011, political parties managed to broker a new institutional deal. Legally, this agreement took shape as the Sixth State Reform. As had happened before, the agenda of Parliament and the Cabinet, acting in their constituent roles, could not be squared with the list of constitutional Articles that had been opened for amendment before the 2010 federal elections. This time, however, neither implicit amendments nor the transfer of matters to ‘special laws’ were suggested as a workaround,Footnote 50 as the direct impact of the projected reforms on existing Articles, in light of the political necessity to solidify the planned changes in the text of the Constitution itself, seemed too drastic.

Interestingly, the constituent assembly had an advantage that none of its predecessors had in preparing for state reform: Article 195 of the Constitution had been added to the 2010 list of Articles open for amendment. Seizing the opportunity, the constituent assembly chose to complement the amendment procedure itself with a temporary provision.Footnote 51 This provision allowed for the amendment of Articles that would otherwise not have been open for amendment, but only during the parliamentary term beginning after the 2010 federal elections.Footnote 52 As a result, the temporary provision served as a surrogate declaration for the revision of a series of constitutional provisions that were key to the political agreement on the Sixth State Reform, including the fate of the federal Senate and the powers of the Brussels-Capital Region. The explanation accompanying the proposal was clear on this point:

Indeed, certain constitutional provisions are at this time not or not fully open for amendment, whereas their amendment is necessary for the execution of the institutional agreement for the Sixth State Reform.Footnote 53

The other rules governing constitutional amendments (such as the supermajority requirement) remained in place.Footnote 54

Amending Article 195 of the Constitution in this way effectively replaced the first phase and disabled the second phase of the amendment procedure,Footnote 55 triggering immediate and fierce criticism. In Parliament, opponents argued that this way of proceeding reduced the Constitution to ‘a shred of paper’.Footnote 56 Supporters, however, contended that the alternatives were even less desirable: either disregarding the Constitution entirely, resorting once again to implicit amendments (which had been deemed ‘reprehensible’), or restricting changes to the list of Articles opened for amendment in 2010, which was ‘not really an option’.Footnote 57 Postponing the amendment, so that Article 195 of the Constitution could be applied in its original form later, was deemed impossible, as ‘all communities want[ed] a reform’.Footnote 58 The manoeuvre was defended as pragmatic, temporary, and punctual, leaving the core of Article 195 of the Constitution intact. Moreover, defenders argued that it did not infringe on fundamental rights and was adopted only with a view to the proposed state reform.Footnote 59 Pacification between the federated entities could only be achieved if the Sixth State Reform was implemented ‘swiftly, integrally, and adequately’.Footnote 60

Of course, this amendment of Article 195 was in itself only possible because it had been opened for amendment in 2010. However, whether an amendment in this specific fashion had been foreseen by the pre-constituent assembly is doubtful. In the Chamber of Representatives in 2010, the Prime Minister had simply stated that the intention was to make it easier to amend the Constitution. During the subsequent parliamentary debate, arguments focused on the general need for simplification of the procedure and the flexibility it would provide for a state reform. Some members had specifically objected to a scenario in which Article 195 of the Constitution would be opened for amendment to allow amendments to Articles that were not included in the original list.Footnote 61 However, there was no legal challenge to the fact that amending Article 195 of the Constitution could create the possibility of adopting amendments in a single parliamentary term, and the relevance of such a possibility for the Sixth State Reform was clear to all.Footnote 62 But did members of Parliament – even though their ideas would not bind the constituent assembly – at that time envision a permanent amendment to Article 195 of the Constitution that would also make future state reforms feasible within a single term? Or did they only foresee the temporary, one-off solution that was eventually enacted to enable only the Sixth State Reform? One might speculate that, by that time, the latter scenario was considered among negotiators.Footnote 63 However, it was not until 2012 that this scenario was thoroughly discussed.Footnote 64

As with the implicit amendments in previous state reforms, the arguments put forward in defence of the temporary amendment procedure were arguably both representational (reflecting the desires of the communities) and reason-based (offering what was perceived as a fair solution).

Initial reactions to these justifications by academic observers, many of whom were questioned by the media, were very mixed. Across the country, there was considerable scepticism among lawyers and political scientists. On the one hand, the approach was described as ‘delegitimising the very notion of constitution’,Footnote 65 as ‘an expression of a political culture that unfortunately does not bother much about the constitution’,Footnote 66 as a ‘clear violation, orchestrated only by fear of the voters’,Footnote 67 and as ‘a manifest violation of the spirit of Article 195 of the Constitution’.Footnote 68 Even stronger criticism described the move as ‘beyond scandalous’,Footnote 69 as ‘constitutional fraud’,Footnote 70 and as ‘constitutional arrogance under the guise of democratically covered pragmatism’.Footnote 71 One scholar remarked that ‘only a few constitutionalists seem to care’.Footnote 72 On the other hand, a number of academics – some of them close to the political parties involved, or even members of Parliament themselves – were unwilling to defend Article 195 of the Constitution as they considered it antiquatedFootnote 73 and propagated the temporary solution even before its adoptionFootnote 74 or derided its critics.Footnote 75 A deputy Prime Minister, also a professor of constitutional law, alluded to the bad experience with implicit amendments when he claimed that ‘during state reforms, the Constitution has never been respected as much as this time’.Footnote 76 A judge of the Constitutional Court, also a professor of constitutional law, declared that he had no problem with the solution if it remained a one-off operation.Footnote 77

Undoubtedly fuelled by some of these comments, the parliamentary opposition promptly brought the matter to the attention of the Parliamentary Assembly of the Council of Europe, which tasked the Venice Commission to advise on the matter. The Belgian government maintained that all formal procedures had been followed and that no rule of law principles were compromised.Footnote 78 The Commission, too, found that the move violated neither the letter nor the spirit of the Constitution, nor any international standard, even if more transparency up front would have been welcome.Footnote 79 In fact, the Venice Commission emphasised that the approach taken would ‘allow the Government and the large majority in Parliament to realise the urgent sixth state reform’.Footnote 80 Eventually, a comprehensive list of constitutional amendments was adopted in 2012 and 2014, many of which were only possible because of the temporary amendment provision.

Interestingly, the general sense among commentators engaged in more fine-grained analysis was that the process was ‘technically correct’,Footnote 81 as it was formally carried out in accordance with the existing Article 195 of the Constitution. A Belgian member of the Venice Commission, also a professor of constitutional law, concluded that the episode was unusual but understandable, and not unconstitutional.Footnote 82 One scholar criticised this view as overly formalistic, arguing that it effectively turned the amendment into a ‘blank cheque’, undermining the legitimacy of the Constitution.Footnote 83

Legitimate but Illegal, or Legal but Illegitimate?

Let us return to the conundrum we are investigating: can an illegal amendment be legitimate, and can a legal amendment be illegitimate? In the context of Belgium's state reforms, the answer lies in the socio-political equilibria shaped by the consociational design of the state and the balances of power therein.

First, the deeply felt need for new equilibria explains the emergence of implicit constitutional amendments and why they were considered legitimate, even if illegal, by the institutional forces in power. The implementation of state reforms despite the limits of Article 195 of the Constitution has prioritised socio-political expediency over formal legality.Footnote 84 Legal textbooks today mostly limit themselves to acknowledging the doubts that have been raised in the past about the legality of implicit amendments, or simply observe that the rule against implicit amendments has not always been observed.Footnote 85 The need for political pacification offered an explanation for the repeated application of this technique and arguably generated sufficient legitimacy for the amendments within society. Ultimately, the Constitution adapted to political realities, not the other way around.

Second, however, when the 2012 temporary amendment procedure was enacted, the desire to accommodate a newly established socio-political equilibrium did not result in a solution perceived as illegal but legitimate. Given the experiences of earlier times, it comes as no surprise that, for its architects, the success of the Sixth State Reform took precedence over strict adherence to an amendment procedure widely considered as obsolete. As mentioned above, the justification for the 2012 amendments rested on reason-based and representational arguments, according to which this was a reform that Belgium's fractured body politic badly needed, and it had the backing of a supermajority of the people's representatives. However, despite the technical legality of the operation, this attempt at legitimisation was rejected by opposition parties and a number of commentators. As noted, the Constitution does not carry much political authority – it has been described as a complicated and rational, rather than inspirational, instrument.Footnote 86 This raises the question of why the chosen solution has been so widely criticised, at least in academic circles.

Although legitimacy is conceptually distinct from legality, we should remember that there are both representational and reason-based arguments for adhering to formal amendment rules to achieve legitimacy. Yaniv Roznai argues that temporary or ad hoc constitutional amendments run the risk of being procedurally illegitimate, even if they are technically legal:

to temporarily change the constitutional rules only for momentary political convenience is dangerous to the constitutional-democratic regime and undermines the raison d’être of constitutional democracy: establishing permanent rules limiting the power of government.Footnote 87

As such, the effort to implement the Sixth State Reform through a deviation from the normal amendment procedure was, from the outset, fraught with challenges. Perhaps more than politicians, a considerable number of commentators were unwilling to accept as legitimate, at least to a sufficient degree, the openly opportunistic application of the constitutional amendment power granted by the pre-constituent assembly – again, even though this use of amendment power was legal. So the question remains why the argument put forward by its political proponents has not convinced them otherwise. In this context, it seems possible that the criticism of the chosen solution may have been, in fact, a proxy for something larger – namely, a critique of how the consociational method itself had been applied in the months and years leading up to the reform.

Both domestically and abroad, the Belgian consensus approach to conflict resolution has long been praised as successful and non-violent. However, the long and exhausting road toward the Sixth State Reform has brought a number of limitations to light more clearly than before. As political scientists have emphasised, consociationalism comes with risks. It may not be able to guarantee stable politics because it threatens to immobilise politics.Footnote 88 Moreover, it has been argued that consociationalism creates tensions in a dual democracy where one group holds a majority, and that it can only work if there is loyalty beyond individual groups and a willingness to accommodate adversaries.Footnote 89

While the supposed preconditions for an effective management of consociationalism have been subject to debate,Footnote 90 a paradox has emerged. The state reforms have, at each time, resolved political tensions temporarily, but increasing segmental autonomy has fuelled demand for further reform and reduced the need for national compromise. At the same time, the depletion of bargaining tools and entrenchment make future developments increasingly difficult.Footnote 91 As a result, some political scientists have painted a bleak picture of current Belgian consociationalism.Footnote 92 Historically, Belgian state reforms were framed as mutually beneficial to both linguistic communities. The Sixth State Reform was different. Because of the asymmetric preferences between the groups, the room for negotiation was smaller than ever, and some within the traditional political elites openly expressed their concern that the federal consensus model had reached its limits.

Notably, political leadership within each linguistic group is not fixed. There is a full ideological variety of parties competing for voter support. Until the turn of the century, centrist parties that supported the consensus model dominated the political arena. This has changed with the success in Dutch-speaking Flanders of political projects that reject this model and advocate different solutions to conflicts, including secessionism. Even within traditional parties, it appears that today's leaders – who grew up with a divided media landscape and are mostly too young to have consciously witnessed earlier reforms – have few incentives, including electoral ones, to systematically accommodate their ideological counterparts across the language border.Footnote 93

This brings me to my point. It is unlikely that the objections raised against the temporary amendment procedure, both political and academic, were driven by reverence for the virtues of the existing Article 195 of the Constitution. Rather, in a changed political climate, the protracted and unglamorous cycle of negotiations that preceded the procedure may have been unable to instil enough enthusiasm, either for its process or its outcome, to forgive the additional tampering with the Constitution it eventually required – even if this time, the solution was found within the technical margins of legality.

Exploring Change Beyond Legality

In this article, I have demonstrated that certain constitutional amendments to Belgium's state structure, although considered illegal, have nevertheless gained legitimacy through sufficient acceptance among key actors. This phenomenon can be explained by reference to the consociational methods that political elites have used for institutional reform, which have led to the Constitution in this context being viewed not as a framework that governs how political realities are shaped; rather, constitutional amendments are seen as a means of ratifying a new political reality already established through elite consensus. More recently, however, an amendment manoeuvre aimed at a similar outcome was deemed technically legal, but has nevertheless faced particular challenges to its legitimacy. This can be attributed to two factors: the increasingly burdensome application of traditional conflict resolution methods, and the observation that circumventing formal amendment procedures also undermines legitimacy in a narrower sense.

As far as Belgium is concerned, the elephant in the room now is the existing constitutional amendment procedure itself. Its origins are idealistic, but it appears ill-suited to the politics of the 21st century. If anything, both the implicit amendments and the temporary amendment procedure have heightened the need to update it. Reform has been advocated time and again, and various scenarios have been put forward, such as distinguishing between institutional amendments typical of state reforms and amendments that concern rule of law principles and fundamental rights.Footnote 94 There is no consensus, though, neither academically nor politically, on the best alternative to the current system. Meanwhile, the development of the ‘special laws’, to which certain constitutional topics have been transferred, has reduced the need for speedy reform and the need to fundamentally reconsider the rigidity enshrined in Article 195 of the Constitution. The introduction of a temporary amendment procedure has also raised fears that the urgency for a permanent updating of the amendment procedure has waned.Footnote 95

The latter assumes that the Sixth State Reform set a precedent. Did it? Article 195 of the Constitution was not included in the declaration of the pre-constituent assembly ahead of the 2019 elections, precisely because too many feared that it would open a Pandora's box of institutional claims. However, for the 2024 elections, it was included – and the Cabinet did not hide the reasons why.Footnote 96 While in principle ‘a revision of Article 195 of the Constitution makes it possible, inter alia, to change the constitutional amendment procedure, which for a number of years Belgian constitutional scholars have been advocating for a diversity of reasons’, the goal of this amendment of Article 195 ‘in particular’ would be ‘a new state structure, as from 2024’.Footnote 97 Notably, the leadership of the largest Flemish political party (at that time) had declared its concern that existing legal mechanisms were insufficient to achieve a new institutional equilibrium, yet maintained that ‘the Constitution cannot stand in the way of necessary change’.Footnote 98 These developments suggest that Article 195 of the Belgian Constitution may be up for more rough times.

Belgium's institutional history demonstrates that distinguishing legality from legitimacy helps to understand constitutional change in a more nuanced way than by merely taking stock of compliance with positive law. It is an approach that introduces more complexity and ambiguity. What we get in return is a more interesting, and ultimately more realistic, picture of how constitutional democracy works.

Footnotes

*

Councillor at the Council of State of Belgium; Associate Professor at ConstitUGent, the constitutional law research centre at Ghent University. I would like to thank Jaclyn L Neo, Kevin YL Tan, Richard Albert, and the participants of the 2021 symposium ‘When is a Constitutional Amendment Illegitimate?’ at the National University of Singapore for creating the occasion for this paper and for their feedback. My thanks also go to the organisers and participants of the 2023 European Constitutional Law Review symposium at the University of Amsterdam, and to the anonymous reviewers for their useful suggestions. Some English translations from Belgian sources are my own. Nothing in this article reflects positions of the institutions of which I am a member.

References

1 For an introduction to different typologies, see, eg, Doyle, Oran, ‘Order From Chaos? Typologies and models of constitutional change’, in Contiades, Xenophon & Fotiadou, Alkmene (eds), Routledge Handbook of Comparative Constitutional Change (Routledge 2020)Google Scholar.

2 I understand legitimacy here in a non-normative sense. According to Fallon,

measured in sociological terms, a constitutional regime, governmental institution, or official decision possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropriate, or otherwise deserving of support for reasons beyond fear of sanctions or mere hope for personal reward.

Richard H Fallon Jr, ‘Legitimacy and the Constitution’ (2005) 118 Harvard Law Review 1787, 1795. More recently, see also Richard Albert, Constitutional Amendments. Making, Breaking, and Changing Constitutions (Oxford University Press 2019) 270–271.

3 Alon Harel & Adam Shinar, ‘Two concepts of constitutional legitimacy’ (2022) 12 Global Constitutionalism 80, 80–87.

4 Officially known as the European Commission for Democracy through Law, an independent consultative body tasked with, inter alia, promoting the rule of law and democracy.

5 European Commission for Democracy through Law (Venice Commission), ‘Report 469/2008 on Constitutional Amendment’ (CDL-AD(2010)001, adopted 11–12 Dec 2009) 6.

6 Neither of these sources, it will be seen, refers to a specific conception of legitimacy. Some considerations lean more towards one than towards the other, although it would require an amount of interpretation and qualification to categorise them distinctly. As the focus of this paper is on the legality-legitimacy bifurcation, this ambiguity does not seem problematic and will not be further examined.

7 The lower chamber is the Chamber of Representatives, the upper chamber the Senate. The latter's political significance has considerably dwindled over the past decades, with the exception of, among a limited number of other issues, the constitutional amendment procedure. Whereas the Constitution still refers to the King on many occasions, and while the Head of State's signature is still formally required for a number of legal decisions, today this formula is for all practical purposes understood as the Federal Cabinet of Ministers. The Cabinet is politically responsible to the Chamber of Representatives. See Constitution of the Kingdom of Belgium (ratified 7 Feb 1831, last amended 2024), art 101.

8 For more background on the amendment procedure in English, see, eg, Behrendt, Christian, ‘The process of constitutional amendment in Belgium’, in Contiades, Xenophon (ed), Engineering Constitutional Change. A Comparative Perspective on Europe, Canada and the USA (Routledge 2013)Google Scholar; Popelier, Patricia & Lemmens, Koen, The Constitution of Belgium: A Contextual Analysis (Bloomsbury 2015) 37–45CrossRefGoogle Scholar.

9 The vocabulary traditionally used here may give cause to some confusion. As it was created by the Constitution, the legislative branch is a constituted power that can only exercise derivative constituent (amendment) powers. In this context, it is not equated with the constituent power understood as the original creator of the Constitution. On the origins of these concepts, see, eg, Yaniv Roznai, ‘Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea’ (2013) 61 American Journal of Comparative Law 657, 661–665.

10 The pre-constituent assembly can indicate its intention to introduce a new subject matter. In that case, the subject matter binds the constituent assembly (ChR 1964–65, n° 993/6, 4–5; see also ChR 1967–68, n° 561/4, 3–4). Note that there is no possibility for judicial review of constitutional amendments. Both the Constitutional Court (see, eg, CC 27 Apr 2017, n° 45/2017, B.9.1; CC 28 May 2015, n° 81/2015, B.12) and the Council of State in its advisory capacity (see, eg, CS 14 Nov 1979, n° 13.482/VR; more recently CS 2 May 2012, n° 51.214/AG-AV) lack this competence.

11 Changing the amendment procedure has repeatedly been discussed, so far without effect. See, eg, Francis Delpérée et al (eds), ‘La procédure de révision de la constitution’ (Bruylant 2003); Alexander De Becker & Emmanuel Vandenbossche (eds), Scharnier- of sleutelelementen in het grondwettelijk recht (Die Keure 2011); see also Jeroen Van Nieuwenhove, ‘De grondwetsherzieningsprocedure: naar een omzeiling of naar een herziening’ [2011] Tijdschrift voor Bestuurswetenschappen en Publiekrecht 531; more recently, eg, Ronald Van Crombrugge, ‘Een democratisch grondwetgevingsproces in België? Voorbij artikel 195 GW’ [2019] Publiekrechtelijke Kronieken 269; Hugues Dumont, ‘Ouvrir à révision l'article 195 et réveiller le pouvoir constituant originaire : possibilité, risques et opportunités’ [2019] Publiekrechtelijke Kronieken 448.

12 Arguably, with the perceived socio-political need to change the institutional architecture, the so-called ‘amendment culture’ has shifted as well. See Tom Ginsburg & James Melton, ‘Does the constitutional amendment rule matter at all? Amendment cultures and the challenges of measuring amendment difficulty’ (2015) 13 International Journal of Constitutional Law 686, 699–701.

13 There are different definitions of this concept. A common denominator is the proposition that linguistic, ethnic, religious, or other forms of diversity are not only present in society but are also politically salient. See, eg, Ian Lustick, ‘Stability in deeply divided societies: Consociationalism versus control’ (1979) 31 World Politics 325, 325; more recently Reilly, Benjamin, Democracy in Divided Societies: Electoral Engineering for Conflict Management (Cambridge University Press 2001) 4CrossRefGoogle Scholar. Some also refer to ‘deeply’ divided societies when the division has led to (a risk of) violence; see Adrian Guelke, Politics in Deeply Divided Societies (Polity 2012) 9–10.

14 There have been other important divides, including religion and social class. These also affected aspects of the legal architecture, but not to the same extent. See Maurice Adams, ‘Disabling constitutionalism. Can the politics of the Belgian Constitution be explained?’ (2014) 12 International Journal of Constitutional Law 279, 290–293; Dave Sinardet, ‘Le fédéralisme consociatif belge: vecteur d'instabilité?’ (2011) 136 Pouvoirs 21, 26. On Belgian consociationalism before the state reforms, see, eg, Kris Deschouwer, ‘From consociation to federation. How the Belgian parties won’, in Kurt Richard Luther & Kris Deschouwer (eds), Party Elites in Divided Societies: Political Parties in Consociational Democracy (Routledge 1999); earlier, Lijphart, Arend (ed), Conflict and Coexistence in Belgium. The Dynamics of a Culturally Divided Society (University of California Press 1981)Google Scholar.

15 Lijphart, Arend, Democracy in Plural Societies: A Comparative Exploration (Yale University Press 1977) 1Google Scholar.

16 For a more elaborate overview, see John McGarry, Brendan O'Leary & Richard Simeon, ‘Integration or accommodation? The enduring debate in conflict regulation’, in Sujit Choudhry (ed), Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press 2008); Brendan O'Leary, ‘Debating Consociational Politics: Normative and Explanatory Arguments’, in Sid Noel (ed), From Power Sharing to Democracy: Post-Conflict Institutions in Ethnically Divided Societies (McGill-Queen's University Press 2005) 3–12. For an electoral perspective, see Reilly (n 13) 1–26.

17 On these concepts, see McGarry, O'Leary & Simeon (n 16) 57–61.

18 The capital of Brussels is a bilingual area in terms of government. Originally Dutch-speaking, the city later became majority French-speaking. Given its international functions, today many more languages are spoken in Brussels.

19 Lijphart, Democracy in Plural Societies (n 15) 25–44. Compare with the ‘conflict-regulating practices’ identified by Nordlinger: stable coalitions, proportionality, mutual vetoes, purposive depoliticisation, compromise, and concessions. See Nordlinger, Eric A, Conflict Regulation in Divided Societies (Harvard University Press 1972) 20–33Google Scholar.

20 On the intricacies of these institutional arrangements, see also, eg, Adams (n 14) 281–288.

21 For a detailed account of this evolution, see, eg, Witte, Els, ‘Increasing Tension Between the Communities and the Creation of a Federalised Belgium’, in Witte, Els, Craeybeckx, Jan & Meynen, Alain (eds), Political History of Belgium (Academic & Scientific Publishers 2009)Google Scholar.

22 Constitution of the Kingdom of Belgium, arts 1–4.

23 ibid arts 4, final section, and 43.

24 ibid art 54.

25 ibid art 99.

26 The government of the capital-region of Brussels reflects these balances on its own scale. There, the Dutch-speakers are the politically protected minority.

27 Today, there is only one (far-left) politically relevant national party. No politicians are elected nationwide.

28 In that sense, the amendments adopted on the occasion of state reforms (taken together) would certainly qualify as what Albert defines as a matter of constitutional ‘dismemberment’: a thorough transformation of the constitution ‘while seeking to retain legal continuity, whether by altering a fundamental right, a central structure, or a core feature of constitutional identity’. See Albert (n 2) 91.

29 Constitution of the Kingdom of Belgium, art 4, final section. ‘Special laws’ are of particular importance because, unlike constitutional revisions under Article 195 of the Constitution, they require a majority in each linguistic group in order to be adopted. See Moonen, Toon & Meeusen, Benjamin, ‘De functies van de bijzondere wet in het communautaire België’, in Moonen, Toon, Cannoot, Pieter & Riemslagh, Jonas (eds), 50 Jaar Bijzondere Wetten (Intersentia 2021)Google Scholar.

30 See also Popelier & Lemmens (n 8) 43–45.

31 Implicit constitutional amendments in this sense are not to be confused with instances of informal constitutional change, which may also occur without any change to the text. See, eg, several contributions in Contiades & Fotiadou (n 2).

32 For more details, see Jan Velaers, De Grondwet: Een artikelsgewijze commentaar (Part III) (Die Keure 2019) 692–695; Jeroen Van Nieuwenhove, ‘De herziening en de coördinatie van de Grondwet’, in Marc Van der Hulst & Ludo Veny (eds), Parlementair Recht: Commentaar en Teksten (Mys & Breesch 1998) 61–64; André Alen & Frank Meersschaut, ‘De “impliciete” herziening van de Grondwet’, in Walter Jean Ganshof van der Meersch (ed), Présence du droit public et des droits de l'homme: mélanges offerts à Jacques Velu (Bruylant 1992) 263–269.

33 Compare the text of Article 30 of the Constitution (‘The use of languages spoken in Belgium is optional; only the law can rule on this matter, and only for acts of the public authorities and for judicial affairs’) with the text of Article 129(1):

The Parliaments of the Flemish and French Communities, to the exclusion of the federal legislator, regulate by federate law, each one as far as it is concerned, the use of languages for: 1° administrative matters; 2° education in the establishments created, subsidised or recognised by the public authorities; 3° social relations between employers and their personnel, as well as company acts and documents required by the law and by regulations.

34 For an early account, see, eg, André Mast, ‘De recente grondwetsherziening en de door artikel 131 van de Grondwet opgelegde procedure’ (1972) 31 Rechtskundig Weekblad 1473, 1482–1484. Of course, whether or not an implicit amendment actually amounts to an illegal amendment may be open to debate, either on the basis of whether there is in fact an incompatibility between the provision read in isolation and the same provision read together with the provision by which it is allegedly amended, or on the basis of interpretations of the intentions of the pre-constituent assembly. See also Alen & Meersschaut (n 32) 270.

35 Compare the text of what was then Article 26, first sub-paragraph (now Article 36) of the Constitution (‘The legislative power is exercised jointly by the King, the House of Representatives and the Senate’) with the text introduced at that time as Article 59bis(2), first sub-paragraph (now Article 127(1), first sub-paragraph) of the Constitution: ‘The Councils of the communities, each one in so far as it is concerned, regulate by federate law …’.

36 ChR 1964–65, n° 993/6, 7–8; Sen 1964–65, n° 278, 9–10.

37 Sen 1969–70, n° 391, 14. See also the commentary by the competent minister's deputy chief of staff: Walter Van Assche, ‘De grondwetgever van 24 december 1970 en het dilemma preconstituante–volkswil’ (1971) 26 Tijdschrift voor Bestuurswetenschappen en Publiekrecht 363, 378.

38 Sen 1969–70, n° 391, 32–35. In legal doctrine, some also confirmed that as far as the First State Reform was concerned, the majority's interpretation of Article 195 of the Constitution was not unreasonable, as ‘interference with Articles that were not open for amendment was hard to avoid’ (Karel Rimanque, ‘Kanttekeningen bij een herziene Grondwet’ [1971] Rechtskundig Weekblad 689, 696–697); approvingly, Jean-Claude Scholsem, ‘Advies over het voorstel tot herziening van artikel 151, § 5 van de Grondwet en van de overgangsbepalingen met betrekking tot zijn inwerkingtreding’ (Sen 1998–99, n° 1121/3) 34–36.

39 Compare the text of Article 39 of the Constitution,

The law assigns to the regional bodies that it creates and that are composed of elected representatives the power to manage the matters that it determines … within the scope and according to the manner laid down by a law. This law must be passed by a [supermajority] …,

with the text of Article 118(2), first sub-paragraph, first sentence of the Constitution:

A law adopted by a [supermajority] designates those matters relating to the election, composition and functioning of the [community and regional parliaments] which these Parliaments regulate, each for itself.

40 Sen 1991–92, n° 1449/2, 19; see also ChR 1991–92, n° 1791/3, 29–36.

41 CS 18 Dec 1992, n° 21.990/VR, 92 (advisory opinion).

42 ChR 1992–93, n° 725/6, 56; see also Johan Vande Lanotte et al, Belgisch Publiekrecht (Die Keure 2015) 81–82.

43 Note that more punctual constitutional reforms have also raised concerns about the implicit amendments they entailed, see, eg, a debate on the introduction of gender equality norms in the Constitution in Sen 2000–01, n° 465/4, 76–83 and 101–118.

44 ChR 1990–91, n° 10/60-1531/2, 5–6.

45 ChR 1989–90, n° 961/3, 20–28. See also Marc Van Der Hulst & Anne Vander Stichele, ‘Is de herzieningsbevoegdheid van de grondwetgever beperkt?’ (1991) 46 Tijdschrift voor Bestuurswetenschappen en Publiekrecht 514, 521–523.

46 ChR 1997–98, n° 1591/2, 169–170.

47 CS 2 Apr 1998, n° 27.415/2, 32–33 (advisory opinion). The Constitutional Court declined to adjudicate the amendment process, including criticism of implicit amendments, see CC 9 Feb 1994, n° 16/94.

48 ChR 2002–03, n° 2389/3, 31. The Cabinet member later called them hypocritical (Senate, plenary session 6 May 2010, n° 122, 79).

49 ChR 2006–07, n° 3056/5, 10.

50 However, on certain specific issues, implicit amendments were not completely absent, see Sen 2013–14, n° 2232/5, 284.

51 In the Constitution itself, the temporary provision was wrongly identified as a ‘transitional’ provision.

52 The temporary provision added the following to the existing text:

The Houses, as they were constituted following their full renewal on 13 June 2010, may however, in common consent with the King, pronounce on the revision of the following provisions, articles and groups of articles, but only to the effect as indicated hereafter …

53 ChR 2011–12, n° 2064/1, 3. See also Sen 2011–12, n° 1532/3.

54 This implied that the constitutional provisions that had been opened for amendment prior to the 2010 elections in accordance with the normal procedure of Article 195 of the Constitution could also be amended during this term (eg, ChR 2011–12, n° 2064/1, 4).

55 Contrary to what is usually the case, the constituent assembly that would make use of these peculiar and temporary powers could only do so ‘to the effect as indicated’. In other words, the intentions expressed in the new provision were binding. In the normal setting of a declaration for revision, this is in principle not the case.

56 ChR 2011–12, n° 2064/3, 8.

57 ibid 14–15.

58 ibid 19.

59 ibid 19–21.

60 ibid 22.

61 ChR 2009–10, n° 2593/3, 7 et seq; see also Sen 2009–10, n° 1777/3.

62 The question of the applicability of a constitutional amendment ratione temporis had been a point of debate in earlier times (Sen 2002–03, n° 1549/3, 27–28 and 81–82). See also Jan Velaers, ‘Artikel 195, overgangsbepaling: een tijdelijke versoepeling van de procedure voor de herziening van de Grondwet’, in Jan Velaers et al (eds), De zesde staatshervorming: instellingen, bevoegdheden en middelen (Intersentia 2014) 12–13.

63 Some suggest that this was not the case, see, eg, Pierre Vandernoot, ‘La revision de l'article 195 de la Constitution du 29 mars 2012: “Ceci (n’)est (pas) une revision”’, in Joëlle Sautois & Marc Uyttendaele (eds), La sixième réforme de l'État (2012–2013) : Tournant historique ou soubresaut ordinaire? (Anthemis 2013) 32.

64 Notwithstanding earlier hints, see in particular the intervention of one Senator during the plenary session of 6 May 2010, n° 122, 20.

65 Marc Verdussen, ‘Réviser la Constitution à n'importe quel prix?’ (La Libre Belgique, 11 Feb 2012) 32.

66 Dave Sinardet, ‘De truc met artikel 195’ (De Morgen, 29 Feb 2012) 20.

67 Robert Senelle, quoted in Pierre Havaux, ‘La « vieille Dame » toute malmenée’ (Le Vif/L'Express, 9 Mar 2012) 18.

68 Vincent de Coorebyter, quoted in ibid.

69 Filip Reyntjens, ‘Zappen met een vodje papier’ (De Standaard, 10 Jan 2012) 23.

70 Hendrik Vuye, ‘De grondwetsfraude van de regering-Di Rupo’ (De Morgen, 14 Feb 2012) 20.

71 Carl Devos, ‘De truc met de grondwet’ (Het Nieuwsblad, 20 Feb 2012) 8.

72 Bart Maddens, ‘Hoe Di Rupo de N-VA achter slot en grendel zet’ (De Morgen, 27 Feb 2012) 16.

73 Marc Uyttendaele, quoted in Havaux, ‘La « vieille Dame » toute malmenée’ (n 67).

74 Christian Behrendt, quoted in Paul Piret, ‘Il faudra réviser la Constitution selon une procédure dérogatoire’ (La Libre Belgique, 5 Nov 2011) 4.

75 Francis Delpérée, ‘Je jure de l'observer et de la modifier si nécessaire’ (La Libre Belgique, 15 Mar 2012) 31.

76 Johan Vande Lanotte, quoted in Pierre Havaux, ‘Pour une fois, une réforme de l'Etat respecte la Constitution!’ (Le Vif/L'Express, 9 Mar 2012) 21; see also Vandernoot (n 63) 79.

77 André Alen, quoted in Ruth Boone, ‘Een handleiding voor het Belgische institutionele labyrint’ (De Juristenkrant, 8 Feb 2012) 7.

78 Belgian Government, ‘Memorandum for the Attention of the Venice Commission’ (CDL-REF(2012)019, 16 May 2012) 10–18.

79 European Commission for Democracy through Law (Venice Commission), ‘Opinion n° 679/2012 on the revision of the Constitution of Belgium’ (CDL-AD(2012)010, 20 Jun 2012) 7–14.

80 ibid 14. The Commission's opinion was subsequently criticised, see Patricia Popelier, ‘De truc met artikel 195: een lapje voor het bloeden met de zegen van Venetië’ [2012] Publiekrechtelijke Kronieken 421, 442. There is, in any case, tension with the Commission's position in its general report on constitutional amendment, in which it stresses, for example, that popular consent to amendments should not be used to circumvent existing amendment procedures; see European Commission for Democracy through Law (Venice Commission), ‘Report n° 469/2008 on Constitutional Amendment’ (CDL-AD(2010)001, 11–12 Dec 2009) 35–38.

81 Jeroen Van Nieuwenhove, ‘De nieuwe “overgangsbepaling” bij artikel 195 van de Grondwet. Een herbruikbare tijdelijke afwijking van de herzieningsprocedure?’ [2012] Tijdschrift voor Wetgeving 156, 164; see also Bernard Bléro, ‘La refonte de l'article 195 de la Constitution: No future?’ [2012] Administration Publique 587, 594–595; Werner Vandenbruwaene, ‘Grondwetwijziging via overgangsbepaling’ [2012] Tijdschrift voor Constitutioneel Recht 409, 417–418; Patrick Peeters, ‘De “overgangsbepaling” van artikel 195 van de Grondwet: een noodzakelijke voorwaarde voor de uitvoering van de zesde staatshervorming’ [2013] Tijdschrift voor Bestuurswetenschappen en Publiekrecht 379; Vandernoot (n 63) 61.

82 Velaers, ‘Artikel 195, overgangsbepaling’ (n 62) 14.

83 Popelier (n 80) 430–431 and 434.

84 Velaers, De Grondwet (n 32) 694; Alen & Meersschaut (n 32) 271–273.

85 See, eg, André Alen & Koen Muylle, Handboek van het Belgisch Staatsrecht (Kluwer 2011) 228–229; Vande Lanotte et al (n 42) 81; Behrendt, Christian & Vrancken, Martin, Principes de Droit constitutionnel belge (Die Keure 2019) 371Google Scholar; Lejeune, Yves, Droit constitutionnel belge: fondements et institutions (Larcier 2017) 86Google Scholar. As one author remarked, during the final decades of the twentieth century, implicit amendments have been so present that they were eventually trivialised; see Van Nieuwenhove, ‘De herziening en de coördinatie van de Grondwet’ (n 32) 77–78.

86 Adams (n 14) 299–301.

87 Yaniv Roznai, ‘Clownstitutionalism: Making a Joke of the Constitution by Abuse of Constituent Power’ (2024) 8 Jurídica Ibero 51, 83.

88 Lijphart, Democracy in Plural Societies (n 15) 50.

89 ibid 55–61, 81–83, 99–103. Compare with the thesis that bipolar federal systems are more fragile (eg, Ronald L Watts, Comparing Federal Systems (3rd edn, McGill-Queen's University Press 2008) 71–72). Linked to this, it has been suggested that resilience is enhanced when constituent groups possess relatively equal size and socio-economic power, see Arend Lijphart, ‘Consociational Democracy’, in Joel Krieger (ed), The Oxford Companion to Politics of the World (2nd edn, Oxford University Press 2001).

90 For an overview of scholarship that both builds on and critiques Lijphart's approach, see, eg, Matthijs Bogaards, ‘Comparative Political Regimes: Consensus and Majoritarian Democracy’, in William R Thompson et al (eds), Oxford Research Encyclopedia of Politics (Oxford University Press 2014); also nuancing O'Leary, ‘Debating Consociational Politics’ (n 16) 19–36.

91 See, eg, Didier Caluwaerts & Min Reuchamps, ‘Combining Federalism with Consociationalism: Is Belgian Consociational Federalism Digging its Own Grave?’ (2015) 14 Ethnopolitics 277; also Patrick Peeters, ‘Reflections on the Belgian federal state’, in Michael Burgess & John Pinder (eds), Multinational Federations (Routledge 2007) 31, 37–38; cf, Kris Deschouwer, ‘And the Peace Goes On? Consociational Democracy and Belgian Politics in the Twenty-First Century’ (2006) 29 West European Politics 895, 909, who hypothesises that the unattractiveness of federal gridlock diminishes as the federated entities become more powerful.

92 See, eg, Caluwaerts & Reuchamps (n 91); Sinardet, ‘Le fédéralisme consociatif belge’ (n 14); Caroline Van Wynsberghe, ‘The End of Belgium As We Know It: From Consociational Democracy to Partitocratic Deadlock?’, in Alberto López-Basaguren & Leire Escajedo San-Epifanio (eds), Claims for Secession and Federalism: A Comparative Study with a Special Focus on Spain (Springer 2019) 203–219.

93 See also Adams (n 14) 293–299.

94 There may also be pragmatic solutions. Some propose abandoning the need to list all articles that are considered for amendment in the declaration of the pre-constituent assembly, and limiting the declaration to indicating which titles of the Constitution are to be considered, or the general sense of a reform. See Van Assche (n 37) 379; more recently Velaers, De Grondwet (n 32) 695.

95 Van Nieuwenhove, ‘De nieuwe “overgangsbepaling”’ (n 81) 168–170; Peeters, ‘De “overgangsbepaling” van artikel 195’ (n 81) 387; Bléro (n 81) 598.

96 The Cabinet's coalition agreement of 30 Sep 2020 already mentioned this intention.

97 S 2023–24, n° 550/1, 5–6. As the Minister for Institutional Affairs confirmed, this addition stemmed from the comment made by the Venice Commission regarding transparency (ChR 2023–24, n° 4018/3, 10). Some academic reactions again characterised the 2012 episode as an ‘unprecedented trick’ (Niels Klein, ‘Artikel 195 Gw. voor herziening vatbaar verklaard: diepgaande evaluatie dringt zich op’ (De Juristenkrant, 29 May 2024) 10), others called for renewed efforts to fundamentally reform the amendment procedure (Jan-Baptist Lemaire, ‘De truc met artikel 195’ (De Tijd, 10 May 2024) 11).

98 See, eg, Christof Vanschoubroek, ‘Kan De Wever de grondwet passeren voor zijn staatshervorming?’ (De Standaard, 30 Jan 2023) 4.