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Carte blanche published in the belgian newspaper "Le Soir" on August 29th 2007
by Christian Behrendt Professor of comparative constitutional law at the University of Liège


A certain number of politicians in the North of the country make frequent use of comparative law to base their demands that some powers be transferred to federated institutions. If one follows the arguments of these elected representatives, the wish for newly formulated transfers, and it is well to think carefully about them, would be nothing less than the logical consequence – and thus the consecration par excellence – of a consistent application of the theory of federalism.

It is thus that, to justify the demand for a regionalising of social security (or at least family allowance), the example of Switzerland is cited time and again, given that this state does not use a national social security system but allocates this power to the 26 cantons that make up the Confederation, with the result that a multitude of different social security systems exist. In the same way, to support the demand to create sub-nationalities, it is pointed out that such forms of sub-nationality exist in the Federal Republic of Germany and the United States of America, without them posing inextricable problems in these countries. Finally, to give extra weight to the claim for a de-federalisation, even if partial, of the Justice system - thus the Courts, tribunals and the magistrates that constitute it - it is flagged that federated jurisdictions exist in the United States, Germany, Switzerland and Canada (the case of Austria, which does not use federated jurisdictions, is generally not mentioned).

The reasoning underpinning all these examples is the same: a new reform of the state would make the kingdom finally a ‘real’ federal state, bringing it into line with the common practice found in states with a federal structure. It is precisely this assertion (which one could summarise under the slogan: ‘What we are asking for has already been done by other states and poses no problems’) that I want to challenge here.

To my mind, in effect, the examples that have just been cited are charged with a nullifying indictment: their extraordinary selectivity. Thus, to take the last example, the de-federalisation of the Justice system - it is noted that Germany has made available federated jurisdictions. That is true, but what the adherents of de-federalisation very happily pass over in silence is that the federal constitution surrounds, with federal law disposals, the juridical autonomy of the federated institutions with guarantees so strict that it can be considered, to be blunt, to be as good as non existent. And it is not such a system, it seems to me, that the adherents of justice system de-federalisation in Belgium wish to install. It is moreover piquant to point out that in the Federal Republic, a country in which the justice system has been de-federalised, a lawyer supplied with a degree from the University of Munich can still apply for a post as a magistrate before a federated court of the state of Hamburg (a possibility that the federal constitution has expressly made concrete in Article 33, line 2), whilst in Belgium, a country where the Justice system remains, at least for now, an exclusively federal power, the holder of a law degree issued by Louvain-la-Neuve can not attempt to be a magistrate in Leuven, even if he or she has passed the legally required bilingualism test.

The second example is that of sub-nationalities. Here, it is above all the United States that are cited. Certainly, it is perfectly true that there are New York, Texan, Californian and Hawaiian citizens. But it is also apropriate to point out that the American federal constitution has stated, since its creation in 1787, that ‘the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States’ (art. 4, section 2). And the same idea can be discovered in Germany: the federal constitution grants federated entities the right to create sub-nationalities (Art.74, 8°), but also anticipates the risk of discrimination by stipulating that ‘every German has the same rights and obligations in every federalised entity’. There is thus no question of, for example, reserving access to council houses in Bavaria solely for Bavarians. And, here as well, we are within our rights to ask if it is indeed this conception of sub-nationality - neutral, in some way non-discriminatory - that certain politicians in the North of the low country wish to pursue.

Finally, taking into consideration social security, which it would also be appropriate to de-federalise according to these same politicians, it is interesting to observe that if the case of Switzerland is frequently cited, those of the United States and the Federal Republic – two countries where Social Security remains very firmly federal – are not. Honni soit qui mal y pense? And what to say also of the fact that nobody amongst the ‘autonomists’ in the North points out that if the motorways and navigable rights of way belong to federated institutes in Belgium, they are under federal authority in Germany?

As useful as comparative constitutional law can be, in placing in relief the experiences of other states (in the event that they have a federal structure), as dangerous is comparativism in the form of cherry-picking. And it is dangerous because through playing this innocent little game, one will always find a state which could, in terms of the point being considered, serve the arguments of those who want to grant more autonomy to federated organisms. In the debate concerning Belgium’s federal structure, and on observing the discourse of politicians with a ‘regionalist’ hue in the North, it is interesting to note not only their great loquaciousness in the light of some subjects, but also their silence, pregnant with meaning, in the light of others: thus it seems that there exists not a single political party in the North that has not demanded the installation of a federal restraining mechanism (Bundeszwang, federal injunction power), a mechanism that would allow, when necessary, the Federal Authority to force a failing federated entity to fulfil its internal constitutional obligations. Such a mechanism exists notably in the Federal Republic (Article 37 of the Constitution) and it could turn out to be very precious in Belgium on the day when a regional Minister of the Interior, the regulatory authority with powers over the provinces or communes in its region, refused to sanction a mayor (for example for not having distributed electoral summonses – but this is pure fiction, isn’t it?). What is in any case certain is that, in such a hypothetical situation, Belgian substantive law leaves the Federal Authority with no power of injunction.

In the Federalist Paper n° 51, written in 1788, the celebrated American constitutionalist James Madison brilliantly demonstrated that a state with a federal structure is only viable if the federal and federated levels counterbalance and mutually put the breaks on each other (‘when they check and balance each other’). If it is up to each state to determine this point of balance, it is above all certain that a dogmatic and selective approach, which aims at unscrewing the bolts on one side of the scales only, runs the risk, if it is really put into practice, of leading to an untenable situation in the medium term: Madison knew that already – but who ever said that he must be read?