They don’t do — all the same — everything they want

On the illegality of imposing the wearing of masks everywhere

On January 12, 2021, the French-speaking Police Court of Brussels tried a defendant accused of  » not having respected the obligation, as a person aged 12 years or more, to cover his or her mouth and nose with a mask or any other fabric alternative in one of the places referred to in the aforementioned article « .

The legal basis retained by the Ministry to enforce this obligation to wear a mask is constituted by articles 182 and 187 of the law of May 15, 2007 on civil security. Article 182 states in broad terms that in the event of dangerous circumstances, in order to ensure the protection of the population, the Minister (as well as the Burgomaster) may force people to leave exposed areas, assign a place to stay or prohibit any movement of the population.

The Tribunal responds to the Minister, and it is fair to say that it does not mince its words:  » It would be futile to look for any discussion in the parliamentary proceedings of the Act of 15 May 2007 as to the possible general and unlimited scope that the Minister could give to this empowerment. On the contrary, it appears from the parliamentary proceedings that the purpose of this provision was to allow the Minister to make ad hoc decisions for disasters that are localized in time and space, such as, for example, accidents in nuclear power plants « .

 » According to the Public Prosecutor’s Office, the fact that the Minister would be empowered to prohibit any travel implies the empowerment to impose conditions on them, according to the common adage « who can do more, can do less ».  »

And the court is ironic:  » Such an argument cannot fail to surprise, given that criminal law is restrictive in its application. Following the argument of the Public Prosecutor’s Office, it would therefore be permissible for the trial judge, who in certain types of cases may impose a sentence of imprisonment, to order imprisonment only on weekdays or only on weekends, or to limit imprisonment to a certain prison. Such a decision would absolutely constitute an excess of power « .

The Court specifies that this abusive extension of the scope of the penal law is done at the cost of the safety of citizens and that it is up to the legislator himself to fill the gap in the text:  » It should be remembered that derogations from fundamental rights and freedoms, if they are authorized in exceptional cases by higher norms, both international and constitutional, must find their source in norms of a legal nature, and must be interpreted in the most restrictive way possible. In this case, if the sanitary situation that the world is facing since December 2019, and in particular in Belgium since February and March 2020, is serious, it should be noted that the Legislator has refrained from legislating to authorize the restrictive measures enacted by the successive Ministers of the Interior  » (…)

 » Moreover, the case law of other Courts and Tribunals invoked by the Public Prosecutor’s Office does not concern the wearing of masks, but prohibitions on movement  » (…) ». Article 12.3 reads: « The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or safety, or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.  »

 » It follows that a restriction on freedom of movement must meet three cumulative conditions, namely, it must be based on a law, it must be necessary, and it must be compatible with other rights  » (…) » However, it is clear that the majority of the measures contained in the ministerial order have only a very limited relationship with freedom of movement, a relationship that only a sophist could consider as established  » (…) It is also clear that the measures taken by the Minister, on the grounds of restricting movement, prejudice other rights and freedoms, for example the freedom of assembly, without having been specifically authorized to do so by article 182 of the law of May 15, 2007 .

 » More specifically, with regard to the wearing of masks, it is also clear that the Minister regulates in an identical manner different situations, namely cases in which people are alone in the street or, on the contrary, are in a street with many citizens. Resolving different situations in the same way is a violation of the principles of equality and non-discrimination .

 » Thus, while the wearing of a mask remains a moral duty, and may be imposed in certain cases, for example by virtue of the judge’s power to police the hearing, such a provision could not be made by the Minister in the context of the implementation of the Act of 15 May 2007 « .

 » The prevention charged to [du prévenu] is therefore not established . « For these reasons the Court acquits [le prévenu] of the charge of prevention.

When the executive power suffers from totalitarian prurits, the judiciary can still block it…