Ridder, Maaike De

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Belgium’s Accordion Response toCOVID-19Maaike De Ridder 2021-03-10T09:00:46A Year in ReviewAs Covid-19 started to make its way onto Belgian territory, the Belgian federalgovernment found itself in the midst of political disorder and negotiations to forma government after the May 2019 elections. Up until March 2020, the competentauthority to decide on Covid measures was a caretaker minority government(Regering Wilmès I). But, after the first big outburst of cases in Belgium, thegovernment formation accelerated. Nine political parties made a deal to give theresigning minority government full authority to combat the virus and its economic andsocial ramifications by a motion of confidence (Regering Wilmès II).On 12 March 2020, the Belgian federal government announced multiple far-reachingmeasures to flatten the curve of Covid-19 cases. The measures included mandatoryclosures of restaurants, bars and nightclubs as well as all non-essential shops duringthe weekend until the end of the month. Schools at all levels had to close as well. On17 March, Belgium went into its first lockdown. This meant that non-essential shopshad to close completely, working from home became the default mode of workingand all non-essential movement or travel became prohibited. On 20 March, nationalborders were largely closed and most frontier-traffic was prevented. Although thegovernment decided on an exit-strategy, i.e. to loosen the restrictive measures indifferent stages, in early April, the measures were in force until the beginning of May.By July, most of the measures were loosened and some to an extreme extent (ex.:one’s social bubble could now consist of 15 people per week, a measure refuted bymany experts). Expectedly, infection rates rose again and by the end of July, theproclamation of new measures became urgent.What followed was an accordion-motion of tightening and relaxing Covid measuresup until October, when, after 652 days of minority governments, a new governmentwas formed (Regering De Croo). Immediately after this change of government,measures were tightened again. From 16 October onwards, each individual wasallowed to have one social contact, bars and restaurants closed again and a generalnight-time curfew from midnight to 5 a.m. was put in place for the entire country. Theinfection rate did not drop and more restrictions, like the closing of all non-essentialshops, soon followed. A second full-fledged lockdown was in place until the end ofNovember. In December, non-essential shops re-opened but shopping was limitedto one person per family and had to be done within a half-hour time frame. Themeasures were not loosened during the holidays and are set to be re-evaluated mid-January.- 1 -Containing the Pandemic by Ministerial DecreeUnlike many other countries, Belgium did not proclaim a general state of emergency:the Belgian Constitution forbids the declaration of a formal state of emergency(Article 187). Instead, the federal Belgian government relied on the pre-existinglegal process of Special Powers Laws and Decrees. As foreseen by Article 105 ofthe Belgian Constitution, the legislator can authorize the government to abrogate,complete, modify or replace legislative acts through royal decrees. These SpecialPowers Decrees must comply with strict conditions for their proper application: theycan only be adopted under extraordinary circumstances, their material scope mustbe predetermined by the legislator, they need always be limited in time and theyhave to, eventually, be confirmed by a legislative act within a one-year time frame. InMarch, two of these Special Powers Laws granted the federal government (formally,the King) special powers for three months, allowing the minority government tocombat the consequences and transmission of the virus through Special PowerResolutions. This resulted in an interesting balancing act for the minority governmentat the time, which had mere caretaker powers for matters unrelated to the pandemic,but was allotted broad powers to deal with pandemic related affairs. Special powerswere also granted to the regional governments.However, most of the restrictive measures taken in response to Covid-19 were takenby Ministerial Decrees. These decrees are signed by one minister, authorized bythe government, and are usually meant to cover secondary and complementarymeasures. The Ministerial Decrees used to contain the spread of the virussupposedly find their legal basis in a Law on Civil Security of 2007, assigningcompetence to the Minister of Home Affairs in case of imminent circumstances.However, both the nature of Ministerial Decrees and the Law of 2007 do not allowfor this type of decision-making to implement longstanding measures that drasticallylimit citizens’ freedoms. The legal basis has therefore been found inadequate bynumerous legal scholars, who have already called upon the government to create aproper legal framework for the restrictive measures taken in light of the pandemic.Without the presence of such a law that is adopted by Parliament and imposes limitson what type of restrictions the government can take, the measures taken by theBelgian federal government are currently unlawful and present a significant threat tothe principles of the rule of law. It should be noted that, so far, the Council of State(composed of both an advisory body and jurisdictional body) has not seen any harmin the law that currently serves as a legal basis.Judicial and Legislative ScrutinyParliamentary involvement has been remarkably low since the federal governmenthas initiated its response to Covid-19. In dealing with the crisis, governmentaldecision-making has been the emphasis from the start. As already stated above,drastic restrictions on constitutional rights of Belgian citizens relied on decisionsformally taken by one minister. Constitutional experts affirm that it is up to thelegislator to decide on far-reaching constraints on constitutional rights in a publicand open parliamentary debate, in order to ensure broad support for the measures- 2 -and transparency as to why certain measures are necessary. The Parliament can,however, still ask parliamentary questions to increase transparency and oversightwas indeed increased in July with the creation of a special commission (Covid-19Commission) mandated with the monitoring of the Belgian Covid-19 approach.The Council of State usually has an advisory authority (legislation section) wheneverthe government proposes a law or a regulatory decision that falls within thecompetence of the Council. However, this advice can be set aside for certaindecisions, including public order and healthcare measures. The Council of Statealso has the competence to suspend or abolish administrative acts that are atodds with applicable legal provisions (administrative litigation section) and thusprovides judicial oversight for the Special Powers Decrees taken in application ofthe legislation. So far, the Council of State has been rather cautious in their rulingson Covid-19 measures. The Council of State did not take issue with the contestedlegal basis when it decided on the closure of restaurants and bars as well as thecurfew and thus accepted the Law of 2007 as a sufficient legal basis for thesemeasures. It did, however, recently reject the general prohibition of all religiousservices for being a disproportionate restriction of the freedom of religion. Thespecial powers legislation (not the Royal or Ministerial Decrees) can also be takento the Constitutional Court to be assessed in light of the Belgian Constitution. Somelower magistrates have already deemed some of the Belgian Covid-19 measuresunconstitutional andFederal, Regional and Local Response andCoordinationBelgium is a federal state, composed of three communities and three regions,amounting to six distinct governments with an intricate division of competences,adding an extra challenge to the establishment of clear and unequivocal measures.The fragmented and complicated condition of Belgium’s division of competencesbecomes unusually apparent when all focus is shifted to public health. Belgiumcounts no less than nine ministers of Public Health, divided over the federaland federated governments, all with different, although overlapping, areas ofcompetence, notably complicating the crisis management of this pandemic.Since 12 March 2020, Belgium has been in a phase of national crisis management,meaning that the crisis is managed at national level. But, over the course of theyear, the approach in response to the pandemic and the coordination between thevarious levels of government has shifted. At the start of the pandemic, the minoritygovernment implemented an almost unitary approach in setting up the BelgianCovid-19 response and took multiple measures for the entire country. However, thischanged significantly when the latest government took over. Regional governmentshave since taken more liberty to tread on the terrain of federal competences and viceversa. This should not necessarily be considered a bad evolution. Crises of this kindneed proper coordination between the different levels of government and responsesshould be fine-tuned to fit local and regional circumstances. This evidently requiresflexibility from all sides. For instance, security and law enforcement is normally- 3 -an exclusive competence of the federal government. However, a large part of thecoordination and communication regarding measures such as the curfew has nowbeen left to the regional governments.The coordination between the governments takes place in a Consultative Committee(composed of representatives of all governments), acting as the central point forcoordination and collaboration between the federal government, the community-governments and the regional governments. Here, the federal Corona guidelines arediscussed and afterwards refined by the regions and communities respectively. Theguidelines themselves are developed in the National Security Council assisted byvarious experts.At local level, provincial governors and mayors are also allowed to introduce specificand more severe measures for their province or municipality. Especially provincialgovernors, not elected by citizens but appointed by the government, have played animportant role in introducing severe measures, such as area-specific curfews.Human Rights and Civil LibertiesCovid-19 measures are often at odds with various human rights and civil liberties,measures implemented by the Belgian Government are no exception. Thegovernment struggles to adequately balance the state’s obligation to protect theright to life with other fundamental rights obligations. Introducing limitations to onefundamental right often has a negative effect on other rights, too. The imposedlockdown measures and the extreme limits on freedom of movement also hinderrights such as freedom of assembly, freedom of religion, the right to private life andthe right to education, etc. In particular, the curfew received resentment for beinga severe and unconstitutional measure that disproportionally hindered citizens’freedoms. In November, the municipality of Willebroek imposed a 10pm curfew forsecurity reasons linked to troublemaking teenagers, proving that these measures,however well-intended in the context of Covid-19, can easily be misused.The first and second lockdown have notably limited the right to free movementand other fundamental rights with multiple facilities being closed down and astrict limit on the number of people that can meet up (inside or outside the house)being introduced. Disrespecting any of the Covid measures can be fined with anadministrative fine – a tool of Belgian law enforcement at the level of municipalitiesthat has already been criticized for disregarding the separation of powers andlegal certainty in the past. Widening the scope of this type of fine to include theenforcement of Covid measures caused some commotion, as this decision wastaken by the minority government without involvement of the Parliament or theCouncil of State.Besides the extraordinary impact on fundamental rights in general, the pandemicwas especially hard on the rights of vulnerable groups. The Belgian Covid-19measures took a high toll on, among others, the rights of elderly people in homes,children with difficult home situations, handicapped persons, migrants and victims ofdomestic violence. UNIA, the Belgian Centre for Equal Opportunities, issued a report- 4 -in which it expressed criticism on how the Belgian government failed to anticipateand monitor the effect of the measures on these groups. The report discusses theimpact of Covid-19 and Covid measures on Belgian citizens, it discusses whichgroups were impacted most and it makes recommendations to all responsibleparliaments and governments to minimize this impact.2021 RecommendationsOne of the most significant issues of the Belgian Covid-19 response is the lackof a sufficient legal basis and parliamentary involvement. In January 2020, tenmonths after the start of the first lockdown, the government finally introduced a‘Pandemiewet’ (Pandemic law). However, this is still a preliminary proposal andwill not take effect before it is passed by Parliament. The exact content of the lawis still unclear but the Minister of Home Affairs already clarified that the proposalcontains a non-exhaustive list of measures that can be taken in case of publichealth emergencies. The law would serve as a legal basis for this and all followingpandemics. Nevertheless, the law will still need to be accompanied by decrees andordinances of the regional parliaments to also cover the measures that fall within thescope of their competences.In terms of recommendations, the law should foresee a transparent, unequivocalframework for current and future public health emergencies, to ensure thatsevere restrictions to human-and civil rights, incited by the government in timesof emergency, will always have an explicit legal basis. Moreover, the law shouldintroduce procedural safeguards for any extension made to the, currently, non-exhaustive list of measures.Besides foreseeing a proper legal basis, the Belgian government should increasetransparency and motivate to the general public why certain measures are beingtaken, what scientific advice they are based on and how the measures canbe justified in light of factual circumstances. The government should discloseall necessary evidence on which it establishes its Covid-19 response and theproportionality of the measures should repeatedly be reassessed. It would alsobe helpful if the government remained decisive in its future communication andpromulgation of new measures. Furthermore, a clear exit strategy should bedeveloped and disclosed for all measures to ensure that none of them transform intopersistent threats to the rule of law after this pandemic.- 5 -

Belgium’s Accordion Response to COVID-19

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Belgium’s Accordion Response to COVID-19

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