How to give Parliament its rightful place?
A carte blanche from Francis Delpérée. Constitutionalist (UCLouvain) and honorary senator.
The waltz is danced in three steps. Including in political salons.
At the beginning of the waltz, the Parliament occupies a privileged place. We are in the 19th century and the first half of the 20th century. The golden age of unitary Belgium. The dream moment of parliamentarism, matched from 1921 onwards with a perfect bicameralism. The harness of “the law” and “freedom”, as La Brabançonne sings. A legitimacy that has its roots in universal (male) suffrage, since the end of the First War.
“All power emanates from the nation,” says the Constitution. Who better than Parliament to voice their concerns? We deduce, at the cost of a hazardous shortcut, that Parliament has all the attributes of power. Even if it means delegating plots to acolytes.
The executive takes over
Second step. From the middle of the twentieth century, the supremacy of Parliament was undermined. In law as in fact. Europe asserts the primacy of Union law over national law. The Constitutional Court reminds Parliament that it is sovereign only in respect of the Constitution. Communities and Regions cheerfully invest the areas reserved for the law.
More fundamentally, the executive is gradually taking over. In Belgium as elsewhere. It is the engine of political action. Structurally speaking, it is part of the “legislative power”. With the support of a majority both governmental and parliamentary, he imposed a program. It establishes guidelines. He has the upper hand in international relations.
At the same time, a part of civil society is not sparing its critics. She speaks out “against the elections”. She criticizes the slowness of the legislative process. It offers alternative forms of deliberation. She asks unelected experts to accompany novices drawn by lot.
A parliament confined but challenged
At the third beat of the waltz comes the pandemic. With its share of paradoxes.
On the one hand, Parliament applies barrier gestures to itself. Confidence in the De Croo government is brought to the hemicycle of the European Parliament. In gurgite vasto. The weekly votes are done remotely – for most elected officials, at home. Parliamentary activity is not inexistent, especially in committee. But it is restricted.
On the other hand, Parliament is the receptacle for all requests. Everyone speaks to him. Constitutionalists, lawyers and political scientists. Doctors, epidemiologists or statisticians. Without forgetting journalists, trade unionists and cultural actors. Or, quite simply, the citizens, isolated or in groups.
The point is straightforward. “Wake up! Exercise the deliberative function! Be our interpreters! Defend our freedoms! Exercise your critical mind towards omniscient, omnipresent and omnipotent ministers! You do not have the right to quarantine yourself!” Needless to add that this message conveys its bundle of exaggerations: “dictatorship”, “tyranny”, “liberticidal measures”; at the very least, “blurring of democratic rules”.
Additional paradox. The current worshipers of Parliament are recruited from the ranks of those who, yesterday, never ceased to celebrate the merits of citizens’ panels. Here is representative democracy put on the spotlight by those who yesterday swore by participatory democracy!
The three-step solution
How to get out of the current impasse? I have no lesson to teach anyone. But I tell myself that it might be time to find the rhythm of the waltz. In three stages, of course.
First comes a reminder. “The Constitution cannot be suspended in whole or in part.” Let us imagine that, for imperative health reasons, attacks must be brought, not only to exercise but to the heart of a freedom, such as the freedom to come and go. Impossible to operate without removing the lock of article 187. However, the provision does not appear in the declaration of revision of May 20, 2019 …
In two, another reminder. We know, since Montesquieu, that freedoms are exercised under the shelter of the law. And no ministerial decrees. Little doubt in this regard. We must legislate. An alternative arises here. Should we draft a Corona law, to meet the difficulties caused by Covid-19? One way to regularize the past. Should we rather consider the future and design a lasting law to deal with attacks of all kinds that could one day affect the country?
Should we, as in Luxembourg, consider the occurrence of crisis situations? In the event of “real threats to the vital interests of all or part of the population”, the government takes regulatory measures within ten days; the assembly can extend the “state of crisis” for a maximum of three months (art. 32, para. 4).
If we do not want to be caught off guard at the next epidemic, we must undoubtedly go beyond the mere prospect of corona.
Three. However far-sighted it may be, the legislator cannot envisage everything. It is good practice to leave the government a margin of appreciation as to the concrete measures to be taken now. It is up to him to explain, at regular intervals, to Parliament and to public opinion the merits of these measures. It is also up to Parliament to approve or reject them.
Let’s not play matamores
I do not rank among those who, after having buried Parliament, today attribute to it miraculous virtues. I have frequented the assemblies enough to know their strengths and weaknesses. I consider that the frontal opposition that some want to establish between the branches of the legislative power is dangerous. Only their collaboration can prove useful.
Under these conditions, I appeal to modesty and realism. Do not play matamores. Let us leave the anathemas and the ukases in the cloakroom. Let’s do our best under difficult circumstances. Let us provide the sick with the best care to which they are entitled every day. Protect the healthy.
Let’s build, with the means at hand, the solutions that are within our reach. Let’s draft a law without hesitation. It will serve as the score for tomorrow’s waltz. The one that each of the actors of the political system will interpret. In time, please.
Government and Parliament today have only one duty. It is essential. Give hope to citizens.