Poor little Belgium
JUSTICE. The time has come to talk of all too many things; of cats and constitutions
Belgium: a constitutional monarchy founded in the rule of what? Kings?
Image: King Philippe of the Belgians.
“The time has come,” the Walrus said, “to talk of many things,
Of non bis idem — and constitutions — and banks, landfills, and corruption — Of cats — and, yes, of kings —
And why the sea is boiling hot — And whether pigs have wings.”
[Apologies to Lewis Carroll]
Pigs might fly, but will a corrupt Olympic Games?
In 2020, a cat called Lee caused amusement, uproar and, very nearly, a constitutional crisis in Belgium. The cat was brought in a special evacuation flight from South America to Belgium due to the Covid outbreak, with several diplomats and their families tagging along for the ride. On arrival in Belgium, the authorities wanted to kill the cat. And sought to breach the constitution in doing so. Not bad, eh, for a cat?
On 13 May 2020, the food agency went to court in a proceeding that might be described as unusual in the extreme, under the guise of what we call an ex parte petition. The Agency argued that the matter was one of “the greatest urgency” and “unequivocal necessity”. They told the court that the affair was so needful of swift remedy that time did not allow for a hearing of the defendant in reply. Howbeit, the claims that the FASFC were making in their ex parte petition were far from negligible: they sought an order against the cat’s owner requiring her to pay a coercive fine of 5,000 euros for each hour during which she failed to deliver up the cat (so that it could then be put down) and asked the court to lend its endorsement to imposing a gagging order. It was this request for a gagging order that struck a note more than anything else. The FASFC asked the court to order the cat’s owner “forthwith to cease and desist from all and any comments relative to Lee the cat, the Federal Agency for Safety and the Food Chain and the officials thereof in any form of media whatsoever, and to subject to a coercive fine of 1,000 euros any and each infringement hereof.”
The President of Antwerp Court of First Instance, Antwerp division, was not, however, minded to agree that a “bipartisan” proceeding was outside the bounds of any possibility. Going to the nub of the matter, he said, “Though the petition is like as not one of great urgency, it is not so to the extent of ruling out a proceeding in which both sides are heard in argument.” Thereupon, the food agency were granted leave to raise defended proceedings on a short calling before the summary causes court. The matter of the gagging order remained undisposed of. That all fell far short of what the food agency had been after. The very same day, they filed an appeal, again demanding delivery of the cat and the same, wide-sweeping gagging order. And, again, the FASFC got sent packing: the appeal court, too, was unwilling to rule without the cat’s owner having an opportunity to state her case. And, once more, their gagging order went unordered.
The press paid but scant attention to these attempts by the Agency, first, to circumvent a party’s right to state their case and, worse, to gag the right to free speech.
There was concern at the somewhat superficial manner in which the press reported these blatantly unconstitutional claims by an agency of the government of Belgium, articles 19 and 25 of whose Constitution formally proscribe any act of preventive censure. The first ten words of article 25 say it: “The printed press is free; censorship shall never be imposed.” Article 19 of Belgium’s Constitution, for its part, guarantees the freedom of expression; by its effect, no court may issue a preventive gagging order in this country. Moreover, the European Court of Human Rights ruled categorically in RTBF v. Belgium (application 50084/06, decision of 29 March 2011) that a summary causes court in Belgium (the report calls it an urgent-applications judge) has no power to prospectively prohibit expressions of opinion. Paragraph 108 of the report on the RTBF case says: “Nevertheless, the Court notes that Article 19 of the Constitution provides solely for the punishment of offences committed when the freedoms set forth therein are used, including freedom of expression; this implies that only retrospective sanctions can be imposed for errors and abuses committed while exercising this freedom.”
Hence, the effect of article 19 of Belgium’s Constitution is that it would have been impossible for the court to issue a prospective order in Lee the Cat’s case. It’s something one might assume the Federal Food Agency was likewise aware of, which would perhaps explain why it launched its salvo using the heavyweight artillery of an ex parte petition, calculated to obviate any defence counter-argument. The presidents of Antwerp’s Court of First Instance and its Court of Appeal both merited their stripes that day, making as they did rightful application of the Constitution, despite the far from insignificant pressure laid upon them to do otherwise. The missile fired at this particular gnat fell wide of its mark by far.
But the government certainly had a valiant go at it, didn’t it? All under the cover of a curfew, one might opine.
I’ve always been a collector, of stamps, model locomotives, melon labels (yeah, go figure …), but I am now starting a new collection: of inroads against rights, due procedure, the rule of law and, yea, the constitution of Belgium. And I’m quickly making a vast collection, and I ain’t swapping any doubles:
- Belgium convicts students of an unwanted killing and sentences them to forced labour, but we may not know their names, because their names are their parents’ names, and their parents are influential; influential enough to put a gagging order on their names; but we want to prosecute a blogger who revealed their names — the names of convicted criminals;
- Belgium flouts the non bis idem rule of double jeopardy, to make up for its own sloppy policing, in a second bite at the cherry of prosecuting drugs barons;
- Belgium charges to dump ceramics “to the nearest 5 kilos”: I can’t remember ever in my life having trashed an entire dinner service all at one go;
- Belgium welcomes delegates from the most cruel dictatorships in the world — Iran and Russia — and pays their hotel bills into the bargain;
- one of Belgium’s water companies charges consumers twice what it charges industry for … water;
- a thousand consumer complaints were filed with and found to be justified by the Financial Ombudsman. The banks settled in 730 cases. They refused in 270 cases. We have an ombudsman with no teeth;
- a Belgian investigator looking into corruption in the European Union is accused of engaging in … corruption;
- in Paris, not Belgium this time, the office of the Olympic Games, the democratic celebration of equal opportunities in sport, is raided on grounds of possible … corruption. Citior, altior, fortior, corruptior.
I wonder when the critical mass of dirty money in the world will exceed the critical mass of clean money. I wonder when the critical mass will prevent that happening. Perhaps the masses are not so critical.