Table of Contents

Rights-Based Constitutional Review

Rights-Based Constitutional Review

Constitutional Courts in a Changing Landscape

Studies in Comparative Law and Legal Culture series

Edited by John Bell and Marie-Luce Paris

Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review. Providing structured analyses the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.

Chapter 9: Belgium

Marc Verdussen

Subjects: law - academic, comparative law, constitutional and administrative law

Abstract

In Chapter 9 on Belgium (‘The Belgian experience of rights-based review: has the Constitutional Court become a body subordinated to the European Court of Human Rights’), Verdussen explains that, having established a fully-fledged Constitutional Court on the Kelsenian model, Belgium has witnessed a progressive extension of the jurisdiction of its court. The jurisdiction of the Constitutional Court now includes fundamental rights as enshrined in the Constitution, though not comprising those rights guaranteed under international treaties and conventions. Verdussen analyzes the ways in which the court has adapted to the influence of international and European norms by elaborating on two specific interpretative judicial methods in rights-based litigation, namely the ‘combination method’ and the ‘reconciliation method’. The other focus of the analysis is on the articulation in the Belgian legal system of the different review mechanisms, featuring a dichotomy between a centralized constitutional review operated by the Constitutional Court against rights protected under the Constitution, and a decentralized form of review operated by ordinary courts against mainly rights guaranteed under the European Convention on Human Rights. The Belgian example vividly illustrates the adaptability of the Constitutional Court and the responsiveness of its review system to external standards. However, it also illustrates the difficulties that the court faces in determining its primary role—whether the protection of rights or the protection of the operation of the federation—as it has arguably become involved in a relationship of quasi-subordination with the ECtHR.

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