Old source, new spring

The Belgian Constitution: the basis for cohesion?

5 min
Text Katrien Verreyken 
Image Sarah Van Looy

The upcoming elections are also reviving debates on possible state reform. The rise of the right (and particularly the extreme right) is making the communitarian issue more sensitive than ever before, thereby providing fodder for heated discussions at the negotiating table. The tangle of our Belgian state system has nevertheless been a source of endless bickering for much longer than current times. Anyone reading Article 1 of the Belgian Constitution can see how it has been moving along with the political sentiment of the times since 1831. Patricia Popelier, a professor of constitutional law at UAntwerp, takes us through the history of the country’s most important piece of legislation in a nutshell, while also looking at its interpretation today and in the future. 



  • Our first constitution was an original and pragmatic work that served as an example for other countries. 

  • The first constitution did not yet include the concept of ‘democracy’. 

  • The devolution of powers to the communities and regions ensured less conflict at the central level. 

  • During the terrorist attacks and the pandemic, our fundamental rights came to be at odds with state security and public health. 

  • As long as we have a Constitutional Court, the constitution can play a strong role.  

Belgium is divided into provinces. These provinces are as follows: Antwerp, Brabant, West-Flanders, East-Flanders, Hainaut, Liège, Limburg, Luxembourg and Namen, subject to Luxembourg’s relations with the German alliance. The law shall, if necessary, be able to divide the territory into a larger number of provinces. 

Towards consensus democracy 


The one and only Belgian Constitution. On 7 February 1831, it was approved by the National Congress, officially making our country a parliamentary monarchy, with a separation of the three powers: legislative, executive and judicial. Our first constitution was a balanced synthesis of the French constitutions, the Dutch constitution and English constitutional law. ‘It certainly did not become an agglomeration, but rather an original, pragmatic work that served as an example to other countries’, explains Popelier. Over the years, it has been constantly and extensively constantly amended, with the first addition being universal suffrage. This ensured that not only the elite were represented. The second addition was the development towards a democratic constitutional state: the law was no longer inviolable, and the Constitutional Court could test parliamentary laws against fundamental rights.’ 



Territorial pluralism 


‘The third major change was the development towards a consensus democracy, with the creation of a federal system’, according to Popelier. ‘The notion of one homogeneous nation was replaced by the emerging concept of territorial pluralism. As recently discovered by a political scientist from Ghent, this was a good evolution, as the devolution of power to the communities and regions has significantly reduced the number of conflicts at the central level. The next question nevertheless concerns when we have reached a saturation point in the division of powers. Another question concerns how to preserve sufficient cohesion at this central level? By devolving powers exclusively to the subgroups, we risk no longer reaching consensus on cross-border problems (e.g. the climate issue).’ 

quote image

By devolving powers exclusively to the subgroups, we risk no longer reaching consensus on cross-border problems (e.g. the climate issue).

Patricia Popelier

European law


‘A fourth change in our constitution was its embedding within a European legal system’, explains Popelier. ‘European Union regulations are becoming increasingly decisive, and people now also enjoy protection through the European Convention on Human Rights. Instead of eroding our constitution, this European layer provides additional protection. Just look at countries like Hungary and Poland, which are in democratic decline and becoming increasingly authoritarian. The population there is still at least protected by European human rights.’ 


Far-reaching confederalism


One theme that will come into play during the election campaigns is the possibility of state reform and—if Vlaams Belang has anything to say about it—even the dissolution of Belgium. Could it happen just like that? ‘Vlaams Belang would like for the Flemish Parliament to declare independence. The constitution does not allow this unless it is based on a clear wish of the population, as demonstrated in a referendum’, Popelier clarifies. ‘What the N-VA wants is more legitimate: the increasing devolution of powers until there is nothing left and Belgium becomes an empty shell. They refer to this as “confederalism”. I have written a book listing nine types of federal systems, based on the extent of autonomy and cohesion. For example, the cooperative federalism in Germany assigns a great deal of powers to the States, but retains substantial cohesion and consultation. Our institutional cohesion is currently less than our social cohesion, due to a lack of trust within the political system and, in my opinion, this would isolate the population. If we wish to stay together, we must strengthen our cohesion.’ 


Overruling the constitution 


Fundamental rights are deliberately defined broadly, such that they are less subject to the test of time—but doesn’t that create problems of interpretation? ‘We have a vibrant constitution that is sometimes open to interpretation, but the Constitutional Court must ensure that interpretation is contained by demanding accountability.’ 

quote image

I think that it is crucial for us to strengthen our cohesion if we decide to stay together.

Patricia Popelier

This year, however, the N-VA wanted decisions of the Constitutional Court to be overruled by a two-thirds majority of Parliament. ‘That was mostly a provocation’, Popelier thinks, ‘because you must first change the constitution to do that, but it fits in with their dangerous view that democracy and the rule of law are mutually exclusive, when they can just reinforce each other. If you use the rhetoric of such “activist judges” too often, you risk making people very suspicious of the judiciary, and that is pernicious.’ 





How does Popelier see the future of our constitution? ‘As long as we have a Constitutional Court, it will keep our constitution alive. It would be more dangerous to leave its interpretation solely to a political majority. Above all, I think that stronger cohesion is much needed in our federal model, and that the foundations on which our state system is built must continue to rest on a broad consensus.’ 

Share this article