Judge at the German Constitutional Court warns: “The essence of the rule of law, the containment of politics by the law, has lost its effective power”

Judge at the German Constitutional Court warns: “The essence of the rule of law, the containment of politics by the law, has lost its effective power”

There is no alternative to more direct democracy

by Karl Müller

In the weeks and days around 3 October, the Germans commemorated the fact that there had been a historical turning point 25 years ago: The division of Germany into two parts, one of which had been considered and dealt with as occupation zones in 1945 by the four victorious powers, came to an end when the German Democratic Republic joined the scope of the “Grundgesetz” (Basic Law) of the Federal Republic of Germany.
Feature films and documentaries about the period immediately before 9 November 1989, the day of the opening of the Berlin Wall, and 3 October 1990, the date of the GDR’s accession, testified the wide-spread will of the people, to base their coexistence on a new fundament for democracy, freedom, social justice and the rule of law.
What has remained of it, 25 years later?
The “Grundgesetz” would have provided good opportunities for the fulfillment of the German people’s wishes. From the recognition of the inviolability of human dignity and the commitment to human rights (“Grundgesetz”, Article 1), results the obligation to establish a democratic and social federal state, a state under the rule of law with separation of powers and checks of balances (“Grundgesetz”, Article 20). The codification of these two articles in the so-called perpetuity clause (Article 79, paragraph 3) as well as the repeated appeal to right – not  only to law – as  the basis of each of the state’s actions give evidence of a constitution based on  natural law, which goes beyond pure legal positivism – quite deliberately formulated with the historical experience of Nazi dictatorship in mind, which had trampled on all sorts of rights. Rule of law in the meaning of the “Grundgesetz” is more than binding all state action to the law and recognising the right of every citizen to take legal action against any step by the government that affects himself. Rule of law also means respect for and protection of human dignity and human rights, the realisation of sovereignty of the people and social justice.

National state constituted by the “Grundgesetz” experiences crisis of meaning

Nobody is asking for a political system’s perfection, but the degradation of democracy, freedom, social justice and the rule of law over the past 25 years has been so blatant that everybody should cry havoc.
Even a Judge at the German Constitutional Court is apparently of that opinion, even if he chooses rather moderate words. Peter M. Huber is a judge at the 2nd Senate of the Court; on 1 October 2015, he submitted an article for the “Frankfurter Allgemeine Zeitung” a critical diagnosis of German constitutional reality.
Right at the beginning the constitutional judge writes: “A quarter of a century after the reunification, the national state with its constitution based on the ‘Grundgesetz’, suffers from an identity crisis, the rule of law shows erosional tendencies, democracy is being weakened, the structure of the separation of powers has further shifted in favour of the executive branch, and the development of the federal state lacks orientation.”
The “Grundgesetz” qualifies the Federal Republic of Germany as a “sovereign German nation-state respectively a German nation state capable of sovereignty and definitely binding autonomous action”. Its purpose is, “to ensure the Germans security both internally and externally, welfare, social justice and sustainability.” The oath obliges state organs, “to devote their efforts to the weal of the German people, to increase its benefits and to protect them from harm” – according to Peter M. Huber this is “not an empty phrase but a binding specification of the republican principle”.
The diagnosis of constitutional reality in contrast is quite sobering: “The long shadow of the Nazi dictatorship, globalisation, Europeanisation and individualisation have shaken the awareness of this self-evident matter-of-couse”. The “understanding of the meaning and purpose of the nation-state that has to be at the service of its citizens” has vanished. “The essence of the rule of law, the containment of politics by the law (Kant) has lost its potency.” Even in jurisdiction there arises now “the demand for a relaxation of the rule of law”.

A great number of breaches of law by the state

Huber takes the handling of the euro crisis as a specific example. And rightly so!
Other examples in addition to Peter M. Huber’s may be added:

  • The way in which West Germany dealt with the social rights of the new citizens of the former GDR, where the principle that “ownership should also serve the common good” was  nowhere respected, when the former “public property” was privatised by the “Treuhand”;
  • the multiple breaches of Articles 25 and 26 of the “Grundgesetz”, according to which the general rules of international law are part of federal law, according to which the preparation of and all the more the participation in a war of aggression are unconstitutional and punishable, therefore the war of aggression against Yugoslavia was definitely a violation of international law;
  • the disregard of the right to self-determination of the peoples by active participation in coups d’etats, most recently in Ukraine in February 2014 – and  thus the evocation of a violent confrontation in the east and southeast of the country;
  • the governmental acceptance of legal vacuums, where only the “law of the jungle” prevailed.  A situation that was pointed out again by a police officer – Tania Kambouri – in her book, “Deutschland im Blaulicht – Notruf einer Polizistin” [Germany in the flashing of blue light – emergency call of a police officer];
  • the breakdown of existing legislation in dealing with the refugees entering the country; in a letter dated 7 October 2015 and addressed to German Chancellor Angela Merkel 34 CDU (Christian Democratic) politicians and CDU officials wrote: “The currently practised ‘policy of open borders’ corresponds neither to European or German law and is not in accordance with the CDU party programme.”

Dangerous talk of “emergency situation” and “lack of alternative”

These and other violations of the law were always justified by the political leaders and their followers in the mainstream media by saying that Germany is in a kind of emergency state. But who does still remember, that this type of justification for political decisions beyond the law had once led to the descent into a totalitarian dictatorship in German’s history? Where the state of law comes to an end, democracy has no chance. The repeated reference to the alleged “emergency situation” or to “lack of alternative” is part of dictatorship and does not comply with democracy.
In parallel to the erosion of the rule of law, the Judge at the German Constitutional Court envisages a threat to democracy, as well. This is exemplified, for example, in the “outsourcing of government tasks to independent authorities and the private sector”. Since the political programs of the major political parties are assimilating more and more “the voters have less and less opportunity to influence political decisions. Where there is no alternative, there is no choice.” In addition, “electoral law, the structure of political party financing, the lack of direct democracy at the federal level as well as the organizational structures of political parties favour a self-referencing of the political system and deepen the lack of communication between citizens and politicians”.
Huber’s conclusion is twofold: On the one hand he summarises: “25 years of German unity under the ‘Grundgesetz’ have left their mark on it. Tensions between WHAT IS and WHAT OUGHT TO BE have increased while the understanding of fundamental decisions has not.” On the other hand he offers his view: When the foundations of the constitutional system are eroding, “we are all called to action; here is one thing that we have learned from the successful revolution in East Germany: We are the people!”
There are voices in Germany who in this situation refer to the right of resistance in Article 20, paragraph 4, “Grundgesetz”. It states: “Against anyone who undertakes to abolish this constitutional order, all Germans have the right to resist, in case no other remedy is possible.”

How much sense does it make to invoke the right to resist?

But how useful and how feasible is the appeal to this provision in the “Grundgesetz”? The “right to resistance” was introduced into the “Grundgesetz” in the late sixties as a compensation for the severely criticized emergency law which was part of it. The wording is, however, little tangible. This is especially true for the condition, “if no other remedy is possible.” Who determines that? And how constructive is this right to resist? What does “resistance” mean? Some think of 20 July1944. At that time there was no codified “right to resistance”. Should violence be allowed and should breaches of the law be allowed? How does breaking the law concur with the commitment to the rule of law? Or what else should resistance look like if it is to go beyond the already granted fundamental rights freedom of expression, freedom of assembly, etc.? What are the consequences of resistance? Who will take responsibility for potential victims when there is a call to “resistance”?
Judge Huber at the Constitutional Court formulated an interesting passage in his text: “The famous résumé by Bärbel Bohley ‘We wanted justice and got the rule of law!’ – that can not only be understood as a laconic indication that there are cases of injustice and hardships under the rule of law, but as a justification for the right to override the rule of law in favour of individual interests of justice or morality – has also contributed to the erosion of the importance of form and procedural rules in jurisdiction. They [form and procedural rules] appear to many actors as legal trivia, while it is precisely these formal requirements that guarantee legitimacy and legal security. Since there is no mandatory morality in liberal constitutional states it is not possible to appeal to one’s individual morality, and notions of justice or political expediency cannot justify the deviation from the law. The rule of law exists by law, or it does not exist at all.”
One must not share this view in all points, but also the legitimate criticism of legal positivism, which shines through these lines, must not lead to disrespecting the law with the argument that it was  contrary to natural law. Should  it not rather be the goal to peacefully change the law or its interpretation in such a way that it becomes congruent with natural law, where this is not the case? Pure voluntarism, may it be claimed to be moral and well founded, cannot be a basis for living together. And who will distinguish between legitimate “resistance” and the all too familiar colour revolutions and their consequences? Should we again head towards a spring of “resistance” and a subsequent fall and winter? In that respect the Judge at the Constitutional Court is definitely right by stating that “the rule of law exists by law, or it does not exist at all.”

Instead of this – direct democracy

“All state authority emanates from the people.” The people can exercise their state power by “voting”. This is put down in the “Grundgesetz”. Rightfully, Peter M. Huber complains about “the lack of direct democracy at the federal level.” The “Grundgesetz” requirements are so far withheld from the German people. Until 2012 Huber, as a member of the CDU, was a member of the Board of Trustees of the association “Mehr Demokratie e. V.” This association is committed to enable popular initiatives, petitions and referendums at the federal level. In addition, they want to introduce referendums that give the people the power to reject laws adopted by the Parliament under certain conditions. Enabling people as active legislators and supervisory body of parliamentary legislation would be the guarantor that justice and law would approximate. It would be a guarantee that democracy, freedom, social justice and the rule of law could be realized. Swiss History teaches this, but also that the path towards more direct democracy is a long and winding road.
After 1990, there has been considerable progress on the way towards more direct democracy in Germany, especially at the community level. However, at the federal level, there were – after many hopeful signs before the last general election – major setbacks with the new government. But why have the demands for more direct democracy become so much quieter than in previous years? There is no compelling reason for this! Why not re-start again? Because: We are the people! And we will not rest; because direct democracy is our right!
The sovereignty of the people starts with the fact that every citizen acts that way: as the real sovereign. That requires changes in the manner of thinking and feeling. And it requires support. But that is an indispensable “conditio sine qua non”. Other nations such as the Swiss have led the way. The Germans are able to achieve the same as well.     •

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