Malicious attack on democracy?
On 22 February, the Belgian Parliament adopted Book II of the Criminal Code, which contains a new offence as vague as it is worrying: malicious attack on the authority of the State.
After the European DSA and the French law against so-called cult abuses (adopted in a sham of democracy), this criminalisation of protest is one more nail in the coffin of freedom of expression. But sleep soundly: it is under the noble pretext of “protecting the fundamental values of our democracy” that these wonderful initiatives are presented to us…
Included in a comprehensive update of the Belgian Criminal Code, the new notion of “malicious attack on the authority of the State” sits in the same law alongside war crimes, hostage-taking, ecocide, torture, intrafamily homicide, voyeurism, rape…
In its initial wording, the article defined “malicious attack on the authority of the State” as an intentionally harmful and manifest act that directly defies lawful authority or encourages disobedience. The final version of the article, however, introduces important distinctions: it punishes not only acts harming the authority of the State, but also those threatening national security, disturbing public order or obstructing the prevention of offences. It also imposes stricter penalties, while adjusting them according to the category of law breached and the seriousness of the offence committed.
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Negative opinion of the Council of State
Yet the parliamentary debates had revealed a marked tension between the desire to strengthen the authority of the State and the need to preserve fundamental freedoms.
The Council of State highlighted the importance of a precise definition of terms such as “public order” and “attack on the authority of the State”, stressing the risk of an overly broad interpretation that could lead to disproportionate restrictions on individual freedoms. The need to align any new legislation strictly with the guidelines of the European Court of Human Rights was a recurring theme, with frequent reminders of the need to maintain a balance between State security and democratic freedoms.
Members of the federal parliament, such as Ms Rajae Maouane (Ecolo-Groen) and Mr Philippe Lamberts (Ecolo-Groen), expressed concern that the law could be used to unduly restrict demonstrations and freedom of expression, essential democratic pillars enshrined in the constitution. They argued for a measured and proportionate approach, in line with existing case law.
Debates also focused on the possible redundancy of the law, with arguments that existing offences already sufficiently covered the scope of the proposed new law. This raised questions about the practical usefulness of the article, with some speakers fearing that it would serve to introduce unnecessary additional punitive measures that could be exploited arbitrarily.
Ms Sophie Rohonyi (DéFI) recalled the crucial importance of the law in protecting press freedom and criticism of the government, pointing to the need to ensure that any legislative measure supports rather than undermines these fundamental rights.
A group of 513 signatories sounds the alarm
In an op-ed published in Le Soir on 15 February[3], a group of 513 signatories from the voluntary, academic, judicial and civil society sectors drew the attention of politicians and the public to the dangers of such a law for freedom of expression and democracy.
The anti-democratic nature of the proposal
The group considers that civil disobedience, which consists of breaking the law in a public, collective, conscious and non-violent way, is a fundamental and traditional element in the evolution of civilisations. They stress that civil disobedience does not challenge the rule of law but aims to bring about a public debate essential to democracy. The authors of the op-ed recall that civil disobedience has been an important driver of social and political change throughout history. Civil disobedience was crucial for the civil rights movement in the United States, leading to the Civil Rights Act of 1964 with Martin Luther King. It also led to India’s independence with Gandhi. Its role was decisive in winning women’s suffrage. Finally, it contributed to the end of apartheid in South Africa with Nelson Mandela. By criminalising such actions, the proposed law undermines the foundations of democracy.
Dangers linked to the application of the law
The group also considers that its overly broad scope potentially allows protest in the broad sense to be criminalised, and seriously compromises the right to freedom of expression and protest. Moreover, its application could create inequalities before the law and undermine legal certainty.
Redundancy and uselessness of the law
Like some MPs, the group considers the provision redundant, since civil disobedience is already covered by freedom of expression as protected by international, European, regional and national texts. They argue that the new offence would bring no benefit and that similar provisions, which end up being used in a context different from the one originally intended, have been seen in the past.
The group therefore insists that this bill is anti-democratic, dangerous and useless, and that it contradicts the trend within the political world itself to recognise the importance of civil disobedience for democratic debate. They urge MPs to firmly reject this provision, which they regard as a serious threat to fundamental rights.
“Never mind!”
Despite the chorus of disapproval from the Council of State, the Federal Institute for Human Rights, and voluntary, academic, judicial and civil society voices, the parliamentary majority turned a deaf ear and finally adopted the law[4].
Small consolation: the State, in its great leniency, will apply the law two years after its publication… Probably time enough to get used to our new democratic regime by learning not to be malicious towards the authority of the State… On the road to absolute democracy, where allegiance to power is written into the Criminal Code.
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Marcan for BAM!
The illustration is by BAM!
[2] Un nouveau code pénal adapté au 21e siècle - Team Justice
[3] Juristes, universitaires, syndicalistes et citoyens: ils disent « non » à « l’atteinte méchante à l’autorité de l’Etat » - Le Soir
