Constitutional law at the service of legal expertise

Christian Behrendt

Whoever considers constitutional law as a law disconnected from practical concerns is mistaken. Christian Behrendt, professor at the Faculty of Law of the University of Liège, takes us to the heart of parliamentary work and even on the roads of Wallonia to share a part of the activities of his department: legal expertise in constitutional law. He shows us that, sometimes, constitutional law hides where we do not expect it.

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In which cases do we call upon your services for expert missions?

The expertise could come from public institutions that are considering a particular normative action. For example, at the beginning of a legislature, a government is considering reforming a law. It contacts us: "Everyone is complaining. Couldn't we do this differently? You have nine months."

Second, it could be part of a litigation where an authority is before a court. The litigation is underway but this authority wants an opinion that can be useful in this procedure: "The constitutional law department of the University of Liege agrees with our analysis because it too thinks that our thesis is well-founded and we ask the court to rule in our favor.

Thirdly, and this is rarer, but it happens: we are contacted by the court itself. In view of the special nature of the question, the court itself prefers to launch an amicus curiae consultation.

Are they one-time requests? Or do these requests occur on a regular basis?

They can occur on a one-off or repeated basis, since we have framework contracts with bodies for which we regularly provide advice.

There are institutions that trust us. In the framework consultation contracts, it is agreed in advance that if an institutional question of a constitutional public law type arises, we will take care of it. There are even emergency procedures. This obviously assumes availability. What we do here is similar to the role of the lawyer, except that we never give advice in one direction.

You talk about public institutions, can you be more specific?

When I say public institution, it is very broad. Depending on the case, it can be a municipality, a province or a government for example. But also: a political group in a parliament or even an individual minister. We have also advised the European Commission on specific points of Belgian law.

The matters on which you are consulted are extremely varied and do not only concern constitutional law. How do you proceed in this case?

Indeed, and that is the difficulty! As constitutionalists, we must always be careful not to encroach on the territory of our colleagues who are in a much better position to answer certain questions, and limit ourselves to answering constitutional questions.

Let us take the example of the debate during the last legislature on the establishment of an English-speaking court for commercial matters in Brussels, the famous "Brussel's International Business Court", which in the end did not materialize. These are questions of constitutional law in the sense that we want to create a new court, the first to practice in English and over the entire territory. But we are quickly getting into the realm of judicial law. At that point, you have to know how to step aside and let those who are much more knowledgeable in this area express themselves.

How much time do you have to give an opinion?

Here again, it is very variable. It can happen that we are consulted on an urgent problem, with an answer expected within 48 hours. These are often improbable cases that fall completely outside the boxes provided for by the legislation. Other times, we have several months or even a year.

And then there are the questions from the media that require an immediate response..

So it's important to be able to respond quickly?

When a major media outlet asks you about the interpretation of a rule of constitutional law, which is going to apply the next morning, you cannot refer the general public to the article that will appear in the Belgian constitutional law journal nine months later.

Remember the departure of the NVA from the government last December. The question then was: should we vote confidence? You can't take 9 months to answer it. I believe that the public is entitled to an answer to this question in December.

In this case, can the constitutionalist take sides?

It is not a question of claiming who is right or wrong: what is important in a democracy, in order to allow for a healthy debate, is that the next day public opinion can realize that it is a question of interpretation, that there may be different opinions and that this problem has never arisen before.

In other cases, it is also the role of the constitutionalist to react when a fundamental violation of a rule on which everyone agrees occurs and which constitutes a major problem in a state of rights. If a minister comes up with a completely crazy idea, ignores the most elementary rules of public law, it is still very useful for a certain number of constitutionalists to say: "Listen, you cannot do that, the red line has been crossed"

Has this ever happened before?

Yes, when the Secretary of State for Asylum and Migration declared, after the decision of the Council for Foreigners' Affairs, that he took note of it but that he would continue doing what he had decided to do. Here, we are not in the register of interpretation but of the respect due to a court decision.

If you do not agree with it, you decide in the Council of Ministers to appeal the decision to the Council of State, but you cannot ignore it. I was able to say at the time to Le Soir who called me: "The question is not whether or not we want a firm migration policy. The question is to comply with a court decision".

We are paid by public money. We can't complain about the rise of populism and certain extremisms if we don't help inform the debate. That is the role of universities.

Do you remember a case that particularly affected you?

We had a very nice file, it is the motorway toll of the Walloon region. We created a toll system for heavy goods vehicles. The question that arose was: how to legally qualify this sum? Is it a fee or a tax? If it is a tax, the money goes into the general pot, into the ways and means budget of the collecting entity.

Constitutional law actually prohibits the pre-assignment of tax revenues. This is the principle of budget universality. Parliament must be able to decide what it wants to allocate its budget to, that is Article 174.

However, if it is a fee, it does not fall into the general revenue budget. The government has decided to transfer the entire network to SOFICO. It's a fee, so it goes to SOFICO.

By opting for a fee, rather than a tax, we ensure a constant and certain financial flow to SOFICO. It therefore has a financial cushion that allows it to put an end to a failing road network. The Flemings and the inhabitants of Brussels did not do this. You see that constitutional law sometimes leads to very practical things..

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