Abstract :
[en] This paper is submitted in my capacity of scientific co-editor of a voluminous book that has been published in French in February 2022 and which describes and analyses the Belgian State's response to the covid-19 pandemic: F. Bouhon, E. Slautsky and S. Wattier, Le droit public belge face à la crise de covid-19 – Quelles leçons pour l’avenir ? [Belgian public law and the covid-19 pandemic – What lessons for future?], Brussels, Larcier, 2022, 1084 pages.
Thanks to the expert work of more than 50 legal scholars specialised in public law, this book covers all aspects of this subject and is expected to become a reference for legal research and practice on the pandemic. It is offered to present the main findings of this book in order to open to a comparative discussion with panel members who have observed the management of the pandemic in other states.
The main issues that will be addressed are the following ones:
1) Reinforcement of the governments: a centralisation movement has also been observed concerning the distribution of tasks between the government and the parliament. This is especially true for the most important and intrusive public health measures, which have been adopted by the government or even particular ministers, i.e. the minister for Home Affairs.
2) Challenge for the distribution of powers within the federal state: the pandemic has upset the distribution of powers between the federal authority and the federated entities, involving a centralisation movement that is not clearly provided for by the applicable law.
3) Conformity to fundamental rights: in some respects, the Belgian State has adopted very strict measures, whose legality and proportionality is questionable (e. g. ban on contact with more than one person, curfew for months, etc.), while it has been more liberal in other areas compared to other States (e.g. no compulsory vaccination, few restrictions on movement within the country, etc.). Regarding the principle of legality, it can be observed that most of the measures adopted by the state to deal with the virus were enacted on the basis of very broad legislation, leading to the expression of serious doubts concerning their adequacy by the courts and legal scholars. This led to the adoption of a ‘Pandemic Act’ in August 2021, which is itself currently being challenged in the Constitutional Court by one of the largest Belgian political parties. Another dimension of the problem is the absence of the notion of a state of emergency in the Belgian Constitution: unlike many countries, Belgium had to manage the crisis without being able to declare a state of emergency, as the Constitution prohibits such a mechanism. In practice, this led to the establishment of a de facto state of emergency.
