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  • Print publication year: 2019
  • Online publication date: June 2019

Chapter 2 - The Institutional Framework of the Belgian Constitutional Court




Institutional devices function as accelerators or brakes for the deliberative project. Although a set of favourable procedural routes does not guarantee the quality of the deliberative performance, they do constitute the minimal conditions for such an aim. A relatively recent book by Mendes listed the procedural choices that legislators must make if they want to design a deliberative constitutional court. Other authors have equally enumerated procedural factors furthering the deliberative potential of constitutional courts. In addition, the framework may leave room to the court for self-regulation. This, in turn, may lead to a constant refinement of the procedures themselves.

In this chapter, the institutional setting of the Belgian Constitutional Court – and how this developed over time – will be explored as a case study. The institutional devices of the BeCC are legally determined, in article 142 of the Constitution and the Special Law of 6 January 1989 on the Constitutional Court (from here on The Special Act). The Special Act has been updated several times. Also, many legal provisions leave room for interpretation. Therefore, the parliamentary preparatory documents are scrutinised in order to evaluate how the political actors meant the provisions – at the time of their inception – to be understood.

Special attention is paid to how the consociational nature of the Belgian polity has impacted upon the Court's establishment and development. Views on the compatibility between judicial review and consociationalism differ from a theoretical and practical perspective. On the one hand, constitutional review is considered a useful instrument in a consociational polity. It gives minority groups additional protection against the violation of their (group) rights and gives them an additional possibility of participating in public debate. On the other hand, in practice this might not be as obvious as Lijphart argued. A (partial) annulment of legislation might threaten consociational peace. Also, the transparent nature of constitutional review might conflict with the opaque nature of such policy-making. One might argue that the constraining power of judicial review could incentivise the political elite to limit the court's discretionary powers in order to protect their own political autonomy.

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