Research Cedric Jenart

Abstract

'[We] need an independent legal service to make it clear that the Constitution or international laws are not a rag of paper', we learned from a 2022 Tweet by a former chairwoman of a foundational political party in response to the Constitutional Court's annulment of the Flemish legislative educational targets. But do we not already have an institution that checks through ex ante advisory opinions whether proposed rules are in compliance with higher norms, the division of competences or conditions of form: the Legislative Section of the Council of State? Increasingly in scholarly debate, but even in the news media, the Legislative Section of the Belgian Council of State is either criticized or embraced without any doctrinal or empirical knowledge of the role and functioning of this body, leading to misunderstandings, misjudgments or even misues of its opinions. The overarching research objective is to find an added value that the Belgian Council of State, Legislative Section, constitutes as opposed to possible alternatives. This research objective is met by deciphering the foundational constitutional principles underlying the Belgian Constitution and verifying how the Legislative Section helps to improve these principles or concepts or – on the contrary – disturbs one of them. The main research question is therefore: What is the added value of the Belgian Council of State, Legislative Section, for Belgian constitutional law, taking into account (a) the advisory competence in light of the rule of law and human rights, (b) the advisory competence in light of democracy, (c) the separation of powers as an institution pressed between the three powers, (d) the federal nature of the institution and (e) the supranational multi-layeredness of the legal order ? The stratified research question continuously has three legs: (i) descriptive, (ii) normative, and (iii) prescriptive, meaning that (i) the role of the Legislative Section is theoretically and empirically described, (ii) an abstract evaluation is made on the use and functioning of such an advisory body, and (iii) concrete and pragmatic suggestions are formulated on how the Legislative Section could be practically reformed or streamlined in order to improve its core function. In the end, the research aims to examine the Legislative Section as a black box of constitutional law in both of its meanings: (1) unveiling and evaluating this largely unknown or underestimated institution and (2) not unlike the black boxes used to track and investigate airplane crashes, analyze how the Legislative Section contributes to avoiding issues in the aforementioned constitutional principles and concepts.

Researcher(s)

• Promoter: Jenart Cedric

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

As part of a comparative legal study by the European Union Fundamental Rights Agency, the report examines how the rule of law is guaranteed in Belgium through the protection of fundamental rights. After consulting three experts, seven decisions (four from judicial bodies and three from non-judicial bodies, all dating from after the entry into force of the Charter of Fundamental Rights of the European Union) were selected, explained and analysed in this area. These decisions show that in Belgium, the rule of law is prominently guaranteed through the protection of fundamental rights. For example, the judicial backlog is addressed almost exclusively from the perspective of the right to a fair trial. This dynamic can be explained by the absence of an explicit anchoring of the rule of law in the Belgian Constitution and the presence of strong protection of fundamental rights. Based on the analysis of the decisions, the report puts forward five observations. Firstly, Belgian constitutional law facilitates the protection of the rule of law through fundamental rights by providing various mechanisms to respect those fundamental rights. Secondly, the emphasis here is mainly on the fundamental rights enshrined in the Belgian Constitution and the European Convention on Human Rights. Thirdly, the decisions cover all kinds of areas of law and policy. The (non-)judicial bodies regularly take decisions in politically and socially sensitive and controversial cases, where the line between law and politics is thin. Fourthly, it is noted that the intensity of the fundamental rights review varies. The bodies involved, and in particular the judicial bodies, take into account considerations other than the mere protection of fundamental rights or the rule of law in their decisions, and regularly grant – explicitly or implicitly – a margin of discretion to other public bodies. The latter observation points to a larger problem with regard to the state of the rule of law in Belgium: decisions regularly remain without effective implementation. The other public bodies point to the far-reaching consequences of those decisions, which they cannot and/or do not want to meet. This is highly criticisable on the grounds of respect for the rule of law. However, it leads to the conclusion that, paradoxically, the protection of the rule of law through the protection of fundamental rights in Belgium seems in some cases to undermine that very rule of law.

Researcher(s)

• Promoter: Jenart Cedric
• Co-promoter: Fonteyn Floris

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

The provided research discusses the constitutional feasibility of further autonomizing the management of the judicial system while maintaining a balance between constitutional principles. It explores both traditional and modern perspectives on the separation of powers, emphasizing the need for cooperation between branches of government. The delegation theory is introduced as a means to transfer administrative powers to non-politically accountable actors with specific conditions, including judicial and political oversight. It serves as a general guideline for adhering to constitutional principles when outsourcing managerial powers while considering the extent of autonomy in budget and personnel.

Researcher(s)

• Promoter: Jenart Cedric

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

Who should make statutory laws? The legislature! The answer to this question seems self-evident. Still, all legislatures in Europe pass on some of their power to make statutes to other actors. Traditionally, legislative power has been conferred to the executive. More recently, independent agencies and private actors are receiving legislative powers. Whereas the executive was still controlled by voters or by parliamentary representatives of the voters, these 'non-democratically legitimized actors' are not or to a lesser extent. When may the legislature outsource to these non-democratically legitimized actors? Which guarantees must be met in the norms of these actors? Constitutions are mostly silent on these fundamental questions. Therefore, policy makers, politicians and legal practitioners remain in the dark on the legal sustainability and outer limits of legislative outsourcing to non-democratically legitimized actors. This research first aims to derive, from existing treaties, constitutions and statutes, the constitutional principles that determine the limits for legislatures to confer their legislative powers. Second, the research establishes minimum legal safeguards that the norms, made by nondemocratically legitimized actors pursuant to legislative outsourcing, must meet. Ultimately the comparative conclusions for Belgium, France, Germany and the UK will enable us to understand a crucial practice in modern European law-making.

Researcher(s)

• Promoter: Velaers Jan
• Co-promoter: Velaers Jan
• Fellow: Jenart Cedric

Research team(s)

• Government and Law

Project type(s)

• Research Project

Abstract

Who should make statutory laws? The legislature! The answer to this question seems self-evident. Still, all legislatures in Europe pass on some of their power to make statutes to other actors. Traditionally, legislative power has been conferred to the executive. More recently, independent agencies and private actors are receiving legislative powers. Whereas the executive was still controlled by voters or by parliamentary representatives of the voters, these 'non-democratically legitimized actors' are not or to a lesser extent. When may the legislature outsource to these non-democratically legitimized actors? Which guarantees must be met in the norms of these actors? Constitutions are mostly silent on these fundamental questions. Therefore, policy makers, politicians and legal practitioners remain in the dark on the legal sustainability and outer limits of legislative outsourcing to non-democratically legitimized actors. This research first aims to derive, from existing treaties, constitutions and statutes, the constitutional principles that determine the limits for legislatures to confer their legislative powers. Second, the research establishes minimum legal safeguards that the norms, made by nondemocratically legitimized actors pursuant to legislative outsourcing, must meet. Ultimately the comparative conclusions for Belgium, France, Germany and the UK will enable us to understand a crucial practice in modern European law-making.

Researcher(s)

• Promoter: Velaers Jan
• Fellow: Jenart Cedric

Research team(s)

• Government and Law

Project type(s)

• Research Project