The Leuven University (KU Leuven) professor of constitutional law Koen Lemmens says that a recent ruling by a judge banning publication of an article about the Flemish socialist leader Conner Rousseau is unconstitutional. The article that was to have appeared in the daily ‘Het Laatste Nieuws’ and form the basis for a report on the commercial broadcaster VTM’s television news contained extracts from witness statements in an investigation into alleged misdemeanors by Mr Rousseau while he was out with friends at a bar in his home town of Sint-Niklaas.
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Banning publication of article about socialist party leader is unconstitutional says professor of constitutional law
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Professor Lemmens says that a judge is not empowered to prevent publication of anything. The judge can only sanction the publisher of an article if once published it is found to contravene the law. In this case the judge banned publication of the article as he accepted Connor Rousseau’s lawyer’s argument that publishing it would breach of the rules regarding keeping an ongoing investigation secret.
The judge's ruling divides opinion: should the secrecy of the investigation be respected or is this an attack on press freedom? According to Professor of Constitutional Law Koen Lemmens (KU Leuven), it is clear: Article 25 of the Belgian Constitution blocks any form of censorship.
In concrete terms, this means that the judge cannot prevent publication. Professor Lemmens told VRT Radio 1’s morning news and current affairs programme ‘De ochtend’ that "Conner Rousseau's request is a valid one, the secrecy of the investigation must be considered. However, according to the Belgian Constitution this can only be a consideration once an article has been published. This applies to both the written press and to radio and television."
Mr Rousseau filed a unilateral petition to prevent publication. This means that the judge was able to rule at very short notice, without the other party being informed until after the ruling had been made.
Professor Lemmens suspects that this is why what he describes as a "surprising decision" came about. "I cannot see into the mind of the judge, but I can imagine that if you only hear one party, and that party comes up with arguments that are valid and serious, there is a great temptation to go along with them."
The editors-in-chief of HLN and VTM Nieuws have already said that they will use all legal options open to them to challenge the publication ban. According to Professor Lemmens, the judge’s ruling will be overturned. "To put it bluntly our constitution, in this respect at least, gives everyone the opportunity to break the law and then be called to book afterwards."
Too late?
But isn't it too late once an article has been published? "If you were able to stop publication in advance, this might be abused by for example using all kinds of legal action to ensure that correct and justified information is held for so long that its social relevance passes", Professor Lemmens said.