by K. Mader - March 2024
Part 3: Arrogance or ignorance? - The behaviour of German politicians
Statements or actions by some politicians can give cause for concern. In the Federal Republic of Germany, citizens who are attentive to the separation of powers and the rule of law have had to realise with disillusionment from time to time in the past that high-ranking politicians seem to have no knowledge of this or that they exercise their office with arrogance and indifference or with contempt for the people and the state.
Minister of the Chancellery publicly criticises court decision
One example is the former Minister of the Chancellery, Helge Braun, who publicly criticised court decisions on the 'CORONA protection measures' at the time in 2020. He did so in a way that had to be understood as a member of the government disregarding judicial decisions and the independence of the judiciary, if not influencing the courts through public, media pressure.
As a result, some German media outlets even addressed the matter. The German Association of Judges issued statements, albeit not unanimously. This shows how such a statement by a member of the executive can potentially exert pressure on the administration of justice through public polarisation if members of the government lack an awareness of the rule of law.
(https://www.spiegel.de/panorama/justiz/helge-braun-in-der-kritik-verfassungsrechtliche-problematik-vollkommen-verkannt-a-b76bb61b-e2a7-4927-a01a-4f7b015f1dd1; https://de.linkedin.com/pulse/wenn-die-regierung-gerichte-kritisiert-dr-florian-toncar)
Chancellor's power and government crisis in Thuringia in 2020
An outstanding case of disregard for the horizontal and vertical separation of powers, the rule of law and anti-democratic arrogance was the case of "Merkel-Thuringian Parliament-Kemmerich", from the beginning of February 2020.
On 5 February 2020, the State parliament in Erfurt In the third round of voting, the FDP candidate Thomas Kemmerich was elected Minister President, after the Left Party candidate Bodo Ramelow had previously failed in two rounds of voting in his attempt to be re-elected. It was obvious that this result for Kemmerich's election came about with votes from the AfD parliamentary group, as they did not vote for their own candidate, but surprisingly voted unanimously in favour of Kemmerich. This is an unusual tactic, but not formally objectionable; there is no obligation to vote for a particular candidate - so far, so good.
One day later, the then Federal Chancellor Angela Merkel She spoke during a visit abroad and declared in South Africa that the election was "unforgivable" and that it was "a bad day for democracy". The election had broken with the basic conviction that applies to the CDU and to her personally, namely that "no majorities should be won with the help of the AfD". The result must be "reversed". (From: Legal Tribune Online; https://www.lto.de/recht/nachrichten/n/bverfg-2bve420-angela-merkel-aeusserungen-thueringen-wahl-2020-verfassungswidrig/ , viewed on 1 August 2023)
The Chancellor, who on the one hand has to respect an election that is formally correct according to democratic conventions, explained, this election must be cancelledbecause it would contradict party-political and their own convictions.
In addition, as Federal Chancellor she must respect the principle of federalism enshrined in the Basic Law - the associated "Vertical separation of powers" - and therefore such commentary or even interference on their part in the affairs of a federal state is unacceptable. At least that is how it should be.
But that's not all: Chancellor Merkel subsequently used the opportunity to publicise her own activities on the Chancellor's website and on other government websites on the Internet. Resources of the Federal Governmentto stir up a mood of personal displeasure, party political motives and hostility towards an opposition party as well as against the election of Prime Minister Kemmerich.
As with her previous statements, she abused her office as Chancellor and the opportunities available to her to publicly fight out party issues and party strategies in a heated debate. Thus it also violated the neutrality requirement to a considerable extent.
And subsequently, various parties worked to ensure that the newly elected FDP politician Kemmerich, who had already been congratulated on his election in the state parliament, gave up his newly won office after three days, insulted and humiliated, under growing pressure from all over Germany. (As a side note, it should be remembered that a Left Party MP threw a bouquet of flowers at Kemmerich's feet, which was probably originally intended for her party colleague Ramelow. Above all, this sheds light on the understanding of democracy and the mental state in the ranks of the LINKE). Even Kemmersich's FDP party leader, Christian Lindnerrushed to Thuringia to influence him in this regard. The long arm of the head of government Merkel had a powerful effect and brought down the rule of law and many people's sense of justice.
Kemmerich was a victim of the Chancellor's arrogance, who cast aside the separation of powers, the rule of law and democracy as she saw fit. In the end, he and his family were arrested for serious Threats from the far-left camp under Police protection. The whole affair quickly attracted international attention as a result of the chancellor's intervention. It is by no means the case that Merkel was reacting to displeasure, concern or disapproval abroad because of the election process. No, the reactions abroad were a consequence of the excitement fuelled here at home. Representations in the leading German media wanted to create a different picture of cause and effect.
Chancellor Merkel thus succeeded in having an FDP politician resign as head of government in a federal state, Thuringia for a considerable period of around six weeks not in the Federal Council was represented and a Government crisis in Thuringia followed. As a result, it is less in favour of the Alternative for Germany (AfD)but also the Free Democratic Party (FDP) as well as the own party (CDU). Above all, Merkel attacked the rule of law.
Merkel declared after the election: "At the very least, the CDU is not allowed to participate in a government under the elected prime minister. It was a bad day for democracy."
The entire process was not just a bad day for the Democracy; that which Angela Merkel with this was bad for democracy and devastating for the rule of law overall. It was bad in a completely different way to what the Chancellor meant.
As a result of the resulting government crisis, a new election was almost necessary in Thuringia. Merkel called the reactions of Kramp-Karrenbauer and Söder (CSU, Bavaria) as well as the recommendation of the CDU presidium in favour of new elections in Thuringia "very important overall" for the grand coalition. (https://www.tagesspiegel.de/politik/das-ergebnis-muss-ruckgangig-gemacht-werden-4143196.html, viewed on 1 August 2023)
In Thuringia, however, this was made possible by numerous agreement talks held between the state parliamentary groups, among Exclusion of the AfD parliamentary groupand the agreed choice of the previous employer was LINKEN Prime Ministers Ramelow averted. All in all, these events were unworthy of a constitutional state and a functioning democracy.
Discrimination against the 'Alternative for Germany' - Organ dispute proceedings at the Federal Constitutional Court
What has not yet been mentioned is the question of Discrimination against the 'Alternative for Germany' and that the AfD was subsequently Federal Constitutional Court in one Organ dispute proceedings clarified whether a disadvantage in the Competition between the parties would be present. Merkel had therefore unilaterally influenced the competition between the political parties. "The associated interference with the right to equal opportunities of the parties under Article 21 (1) sentence 1 GG (Basic Law) was neither justified by the Federal Chancellor's mandate to safeguard the stability of the Federal Government and the reputation of the Federal Republic of Germany in the international community, nor was it a permissible measure of the Federal Government's public relations work. It also unlawful use of state resourcesby documenting the statement on the websites of the Chancellor and the Federal Government". (German: Legal Tribune Online, Merkel's statements on the Thuringia election 2020 unconstitutional) The BVerG has confirmed the AfD's objections on both points and the Behaviour of the Chancellor as unconstitutional categorised. Merkel, who was no longer Chancellor at the time, was reprimanded, nothing more.
It should also be mentioned that this judgement by the Second Senate of the Federal Constitutional Court was not unanimous, but was reached by five votes to three. The Constitutional judge Prof Dr Astrid Wallrabenstein cast a special vote: Wallrabenstein is of the opinion that "statements on political issues should generally not be subject to any neutrality control by the Federal Constitutional Court," and that government action should not be neutral at all, even if citizens expect it to be. In a democracy, government work is always political and in a party democracy it is characterised by party politics. "A neutral, expert government" is "not the expectation of the Basic Law, but on the contrary an expression of a crisis phenomenon." Indeed, she posits the thesis that an expectation of neutrality is even harmful, which she justifies in a very unique system of logic. However, at no point does it seem to occur to this constitutional judge that there must be a limit to what she calls the "binding of the actions of government representatives to parties".
However, this limit comes into play where there is serious interference in the competition between the parties, which constitutes an obstruction and denigration of opposition parties or where constitutional principles are affected. (This does not include efforts to cancel an election that has been properly held. This was not dealt with here by the BVerfG). The thoughts of the BVerfG judge Wallrabenstein are apparently completely free of such considerations. "In Wallrabenstein's view, the decisions of the BVerfG on bans on statements by members of the government are detrimental to democratic decision-making and its realisation in the parliamentary system of government. But: What would the Federal Constitutional Court judge Wallrabenstein say if the detested opposition in the form of the party 'Alternative for Germany' had leading government responsibility? - That would be interesting to find out - would she also see an expectation of neutrality as harmful in this case?
Apparently, Wallrabenstein was able to convince two other fellow judges to change the court's established case law. But another vote was missing: In the event of a stalemate, the AfD's applications would have been rejected." (https://www.lto.de/recht/nachrichten/n/bverfg-2bve420-angela-merkel-aeusserungen-thueringen-wahl-2020-verfassungswidrig/; https://www.lto.de/recht/hintergruende/h/bverfg-2bve420-2bve520-aeusserungsbefugnis-bundeskanzlerin-merkel-afd-thueringen-wahl/)
Judge Wallrabenstein's reasoning in its entirety must cause concern, and by no means only among members of the 'Alternative for Germany', but among all Germans. (In another case concerning ECB bond purchases, Wallrabenstein was declared biased in January 2021 because of an interview for the Frankfurter Allgemeine Sonntagszeitung. - Federal Constitutional Court - Decisions - Successful recusal request against a judge of the Federal Constitutional Court in proceedings concerning the issuance of an enforcement order in the "PSPP proceedings"; ECB proceedings: Judge Wallrabenstein declared biased (faz.net))
Wallrabenstein was elected to the Federal Constitutional Court in May 2020 at the suggestion of the Green Party and appointed by the Federal President in June 2020. (https://taz.de/Neue-Richterin-am-Verfassungsgericht/!5682377/)
The events in Thuringia in 2020 and the fact that Angela Merkel's actions have not led to any tangible consequences, as well as the way in which the media landscape in Germany has reacted to them, paint a picture of a largely dysfunctional constitutional state. The judgement of the Federal Constitutional Court does not change this in any significant way. So far, there have been no consequences for any of the individuals or parties involved.
In April 2023 Merkel the highest Honourable mention of the FRG, the Grand Cross of the Order of Merit of the Federal Republic of Germany in a special version, was awarded. Only two other German citizens have received this honour before her, both former Federal Chancellor the CDU with a long previous term of office: Konrad Adenauer and Helmut Cabbage. (Deutsche Welle: Angela Merkel receives Germany's highest honour; William Glucroft, 17.04.2023; viewed on 2.8.23) The award stays in the family, so to speak...
The examples described here are only two from the Federal Republic of Germany.
Voter disillusionment and "disenchantment with politics"
And both in the media and in politics, people are ostensibly surprised that in Thuringia - and not only there - a fairly young opposition party (the Alternative for Germany, AfD) is gaining strength in polls and elections, some other parties, including the CDU, are losing support. Or people are demonstratively puzzling over why the Number of non-voters is high in many ballots. The reasons for this are not a rejection of democracy, "disenchantment with democracy" or "hostility to democracy" as such, or other misleading representations, as repeatedly put forward in poor attempts at explanation by leading politicians or the media.
Both protest and resignation certainly contribute significantly to certain voter behaviour. In a representative democracy, voters utilise the obvious (and rare) opportunities to make a statement against conditions. A political system that recognises few limits or rules and ignores the rule of law and the sense of justice is increasingly met with rejection. Under certain circumstances, this can be expressed through a protest vote.
Distrust of political parties and democracy is developing in parts of the German electorate. This should come as no surprise against the backdrop of a number of events and developments. deformed democracy and Evaporation of the rule of law although most of them are not always able to fully analyse or theoretically grasp this. Additional Voter abuse for "wrong" voting decisions or vilification of citizens who demonstrate against what are perceived as grievances completes the unfavourable picture in Germany.
The now customary, unspeakably derogatory way of dealing with the formation of opinion and the mood of Germans in the "new federal states" (former GDR), even from "Commissioner for Eastern Europe" does not in the slightest justice to an analysis of the causes, on the contrary. One should primarily think, free of ideological pretensions, about the image that the political establishment of the FRG presents to the people concerned and the impression it creates.
Over the past thirty years, the majority of former GDR citizens have become increasingly disillusioned for a variety of reasons following the GDR's annexation to the FRG, starting with the Treuhandanstalt's practice of liquidation and privatisation. If you talk to people, you quickly recognise this disillusionment and the reasons for it; many ask themselves, "What did we take to the streets for back then, demonstrating for freedom - for this...?"
And this disappointment is by no means only to do with the material consequences of job loss, low pensions, rising costs or a general feeling of being "left behind". This merely shows that those who repeatedly bring up such explanations are not prepared to analyse openly and are incapable of insight.
Parties and individuals, including journalists and academics, who instigate, fuel, justify, participate in or duck out of events such as those in Thuringia in 2020 without being aware of the consequences or even their own anti-democratic mindset and disregard for the rule of law do not generate trust among citizens; they gamble it away.
The same applies to the media, which in the "Merkel-Thuringian State Parliament-Kemmerich" case primarily referred to whether and to what extent the treatment of the AfD was appropriate or justified or whether the questionable tactical voting behaviour of the AfD parliamentary group in the Thuringian State Parliament was itself reprehensible. This can certainly be discussed in passing; however, these are not the decisive questions that need to be investigated in connection with the entire case. There were few exceptions on the part of the leading media. Norddeutscher Rundfunk (NDR) at least attempted to show in a programme that controversial views can exist on this.
(https://daserste.ndr.de/panorama/archiv/2020/Thueringen-Was-heisst-hier-Demokratie,thueringen168.html)
And just think: what would have been the reaction in Germany from media organisations, ministries, party headquarters or "experts" if a similar incident to the Thuringia election had been discovered in another country, perhaps in Hungary or Russia? How quickly would the outrage have spiralled in Germany? But here, in Germany, it's all right ...
These two examples of Helge Braun and the "CAUSA Thüringen" could be supplemented by numerous others. A scientific investigation into whether the Federal Constitutional Court is always neutral or in some cases more influenced by party politics or ideology could certainly bring sobering results to light.
Conclusion
A large number of citizens increasingly see democracy as an inadequate or even bad form of government that should be rejected, at least according to surveys or media reports. This is mainly due to the fact that we are dealing with a "controlled", deformed democracy with the progressive dissolution of the rule of law. Many people are aware of this without always analysing it thoroughly and understanding it theoretically, as mentioned above.
This is often followed by fundamental rejection, which is interpreted as an extremist attitude, radicalism or even rejection of the state. Such short-sighted judgements do an injustice to many citizens and undermine any possibility of investigating the causes. What many citizens actually reject here is not the Democracy as such or even the free and democratic basic orderas is rashly assumed of any kind of opposition. Citizens reject a distorted democracythat does not deliver what it promises and is not what it claims to be.
Voters are becoming extras in an entrenched system. The sovereign from the Basic Law increasingly sees itself degraded to an annoying accessory or disruptive factor. A growing number of citizens recognise this and know that many things are fundamentally wrong. Citizens in general currently have no adequate or effective means of initiating or bringing about the necessary changes.
First of all, a large number of citizens need to familiarise themselves with the issue and develop an awareness of the situation. This could potentially lead to effective initiatives. The leading media would also have a special role to play here, although it should be noted that there has been no sign in recent years that they are willing to take an in-depth and critical look at questions relating to the rule of law or other sensitive issues - on the contrary. They take on the task of obfuscating or providing false interpretations and are therefore rather an essential part of the problem.
How could improvements in the separation of powers be achieved? - Possible steps in the right direction
The question arises as to whether or to what extent measures can be devised for the state of the separation of powers and the imbalance in the rule of law that would allow the separation of powers to be transferred from the world of theory, assumptions and assertions into reality. Changes are conceivable that are not too complicated and far-reaching for the first steps.
- Separation of parliamentary mandate and governmentIt is one of the simple measures that elected members of parliament should give up their parliamentary mandate if they are appointed to a government. A list candidate of the party can take their place. In the event that a member of parliament directly elected with the first vote is appointed to the government, the next list candidate of his party from his federal state should move up if necessary.
- The separation of party function and government: One could consider calling for the legal separation of party office and parliamentary or state parliamentary office. Also as a lesson from CAUSA Thuringia, 2020, this would be an important measure to formally separate party politics and government office to a large extent. Statements and actions as a party member and party-strategic statements must be prohibited for members of the government, in clear contrast to the questionable statement by constitutional judge Wallrabenstein. Such a dividing line between "office and cabinet" is to be regarded as more important than separating party office and parliamentary mandate.
- If the FRG is to maintain constitutional structures, it is imperative that steps be taken to Independence of the judiciary to be brought about. The Council of Europe's 'Committee on Legal Affairs and Human Rights', as mentioned above, has made proposals in this regard. For example, the Creation of a separate judicial council as a self-governing body and a supreme supervisor of the judiciary that is independent of the government Justiceprimarily the case law, from the Ministry of Justice and government access. (Allegations of politically motivated abuses of the criminal justice system in the member states of the Council of Europe: https://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=12276&lang=en) A necessary amendment to the Basic Law for this should not be too high a hurdle, after numerous and often far-reaching amendments to the Basic Law have been made in recent years.
- The Election procedure and the selection of candidates for federal constitutional judges should be radically reformed. For example, applications for candidacies for the Federal Constitutional Court or proposals from groups outside of parliament should be made possible, and the right of parties or parliamentary groups to make proposals must either be severely limited or, if possible, cancelled altogether. The election of new constitutional judges, if at all, should continue to be carried out by the Bundestag and Bundesrat, at most in part and for the time being. Judges in general must be appointed by the aforementioned Judicial Council to be created or by a separate body, independent of parliament and party influence; this can also apply to constitutional judges.
- The Abolition of parliamentary state secretaries should be one of the first measures with which a separation between the powers of the state can be effectively promoted. If ministers require personal state secretaries as direct employees and confidants, a parliamentary decision can be made as to whether they can employ external and parliament-neutral (preferably even non-party-affiliated) personal trusted experts in the ministry for the duration of their term of office.
- The Party financing through state funding and large donations is another issue. The financial self-service that influential parties find in the current system is an unacceptable situation. Funding should be limited to a minimum by law or stopped altogether. Transparency regarding party capital and donations must be increased. Above all, party shareholdings and entrepreneurial income must be publicly disclosed in annual reports. Newspaper publishers in which political parties are involved as owners or which are fully owned by a party must be clearly labelled on the title that they are under the influence of a party and that there is a shareholding.
- A serious case and possibly insufficiently reformable as a whole is the Defence of the constitution (BfV and LfV) and the network of federal and state offices for the protection of the constitution. For the time being, at least the Election procedure for the Presidents of the Office for the Protection of the Constitution be changed. In the medium term, the VS as a whole must be put to the test.
Many of those affected or responsible obviously do not notice the blatant imbalance with regard to the principles of the rule of law in Germany and some other Western countries - or they do not want to see it. Journalists also seem to have lost an awareness of the principles of the rule of law, whereby a lack of general education, a lack of training or journalism studies, inadequate political education and ideological blindness can play a role.
The political will alone must exist for such initial and decisive steps towards change. This is probably the biggest problem, because a large number of people with influence and often highly remunerated positions have settled into a system and will not willingly change a system in which they have been successful.
As far as the difficulties and shortcomings of the state structure and everyday political practice in the FRG (but also in other Western states) are concerned, some essential points are only touched on here and are not sufficiently detailed. The purpose of this discussion is first and foremost to raise awareness of the principles of the rule of law. Of course, some of the aspects mentioned require more in-depth analysis in order to work out the connections and effects. A blog post cannot fulfil this task.
The focus must always be on the rule of law and the division of the three traditional state powers.
Montesquieu is disregarded - long live Montesquieu!
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Further sources:
The new small opposition party Die BASIS ("Basisdemokratische Partei Deutschland") has published an article on the separation of powers in Germany: The separation of powers - a protective shield for democracy and the rule of law? - dieBasis | Grassroots Democratic Party Germany (diebasis-partei.de)
https://www.gewaltenteilung.de/gewaltenteilung-in-deutschland-die-steckengebliebene-reform/
https://www.wissen.de/bildwb/charles-de-montesquieu-vater-der-modernen-verfassung
https://www.lernhelfer.de/schuelerlexikon/politikwirtschaft/artikel/charles-louis-de-secondat-baron-de-la-brede-et-de
https://www1.wdr.de/mediathek/video/sendungen/planet-wissen-wdr/video-friedrich-der-grosse-und-voltaire-100.amp
https://www.gewaltenteilung.de/staatsanwaltschaft-und-gewaltenteilung/
https://www.tagesschau.de/inland/bundesverfassungsgericht-195.html
https://www.bundesverfassungsgericht.de/DE/Das-Gericht/Organisation/organisation_node.html
https://www.bundestag.de/presse/hib/kurzmeldungen-890468 (State Secretaries)
https://www.juraforum.de/lexikon/gewaltenteilung-horizontal-vertikal
https://www.dadalos.org/deutsch/Demokratie/Demokratie/Grundkurs3/Gewaltenteilung/gewaltenteilung.htm
https://www.bpb.de/themen/politisches-system/24-deutschland/40460/gewaltenverschraenkung/
https://www.morgenpost.de/politik/article237745281/justiz-unabhaengigkeit-richter-deutschland.html
https://www.epochtimes.de/politik/deutschland/richterbund-weist-kritik-des-kanzleramtsministers-an-urteilen-zu-corona-massnahmen-zurueck-a3230384.html
http://www.cleanstate.de/Behaupteter%20politisch%20motivierter%20Missbrauch%20des%20Strafrechtssystems%20in%20Mitgliedstaaten%20des%20Europarats.html
https://www.uni-trier.de/fileadmin/fb5/prof/OEF004/Aktuelles_Semester_-_Guenzel/Erasmus.Staatsorga/StOrg_Rechtsstaatsprinzip.WS.12.13.Internet.pdf
(Johanna Eidenberger: Montesquieu and the separation of powers; seminar paper, Johannes Kepler University Linz, May 2002 https://www.ph-online.ac.at/ph-ooe/voe_main2.getVollText?pDocumentNr=45850&pCurrPk=4207)
"Appointment, term of office and promotion of judges and public prosecutors". The legal situation in Germany with regard to ordinary jurisdictionFile number: WD 7 - 3000 - 043/22; Completion of work: 31 May 2022, Department: WD 7: Civil, Criminal and Procedural Law, Building and Urban Development https://www.bundestag.de/resource/blob/902980/fa44b4a2bd35820f5a087513c2bc7207/WD-7-043-22-pdf-data.pdf
https://de.wikipedia.org/wiki/Regierungskrise_in_Th%C3%BCringen_2020
https://www.mdr.de/nachrichten/deutschland/politik/urteil-afd-klage-merkel-bundesverfassungsgericht-100.html
https://www.faz.net/aktuell/politik/inland/verfassungsschutz-merkel-soll-kritiker-als-maassen-nachfolger-verhindert-haben-15917477.html
https://www.rnd.de/politik/haldenwang-haette-nicht-praesident-werden-sollen-2Z5CB5IRGDPNE7OWO2HCADCJ5M.html
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