On 18 November 2020, the German Bundestag passed a “Third Law for the Protection of the Population in the Event of an Epidemic Situation of National Significance” by 413 votes in favour, 235 against and 8 abstains, with the votes of the CDU/CSU, SPD and Bündnis 90/Die Grünen factions and against the votes of the factions of AfD, FDP and Die Linke.
This law amends the Infection Protection Act, the Medical Devices Fee Ordinance, the Social Security Code and the two previous laws to protect the population in the event of an epidemic situation of national importance. Article 7 of the new law lists the fundamental rights (Basic Law) that can be temporarily restricted as a result of the amendments: the freedom of the person (Article 2, paragraph 2 Basic Law), the freedom of assembly (Article 8 Basic Law), the freedom of movement (Article 11, paragraph 1 Basic Law) and the inviolability of the home (Article 13, paragraph 1 Basic Law).
On the same day, the German Bundesrat also approved the amendment to the law by 49 of 69 votes, the Federal President drafted the law and it was published in the official bulletin.1 The law became effective on 19 November 2020.
During the debate and the decision-making process in the German Bundestag, a demonstration of several thousand people near the parliament and government buildings against the national Corona measures and especially against the new law was dispersed by the police using coercive measures, including the use of water cannons (without direct jets) and pepper spray. The vast majority of the participants in the demonstration had not complied with conditions for the authorisation of the demonstration, in particular distance rules and the wearing of protective masks, and had not heeded the police’s calls for the demonstration to dissolve itself.
“Third Act to Protect the Population in the Event of an Epidemic Situation of National Significance”
Prior to the change in the law, German courts had repeatedly pointed out in rulings on state corona measures that there was no solid legal basis for government action. For German legislation, an unusually short time elapsed between the presentation of the draft law on 3 November 2020 and the decision on the law on 18 November 2020 (which was amended in some passages compared to the draft).
The new law concretises the hitherto general legal authorisation for government action to combat the corona pandemic with a new Section 28a in the Infection Protection Act, giving the Federal Minister of Health and the state governments extensive powers, including in case of restrictions on fundamental rights, but the 17 points expressly mentioned contain virtually nothing new compared to previous practice.
Contrary to the original draft, the new Section 28a explicitly states that the “prohibition of assemblies or marches” and “of religious or ideological meetings” and the “prohibition of entering or visiting facilities [...] such as homes for the aged or nursing homes, facilities for the disabled, maternity facilities or hospitals for close relatives” is only possible if otherwise “an effective containment of the spread of the corona virus disease 2019 (COVID-19) was significantly endangered”. “Protective measures”, it continues, “must not lead to the complete isolation of individuals or groups; a minimum level of social contact must be guaranteed.”
In the future, government measures must be justified within the ordinances and are limited to four weeks but can be mandated again. The basic prerequisite for government decisions is that the German Bundestag has ascertained the presence of an “epidemiological situation on a national scale” and that the number of new infections per week has exceeded regionally precisely defined limits (35 or 50 per 100,000 inhabitants in a district). This determination of the “epidemiological situation” can be revoked by parliament at any time.
New law not uncontroversial
It is obvious that the new law is rather topical and therefore most likely not the last one regarding corona and COVID-19. Since March 2020 it is already the third “law for the protection of the population in an epidemiological situation on a national scale”. The extent of the powers of the Federal Minister of Health and the state governments, especially in the case of restrictions of fundamental rights, is still subject to pros and cons even among experts. In particular, it is controversial whether parliament will be sufficiently involved in upcoming government decisions and whether the lists that have now been drawn up are sufficiently concrete and defined for the framework of government action, especially in the case of restrictions on fundamental rights.
Debate with campaign tones
The debate in the Bundestag on 18 November showed that the politicians’ discussion about the national corona measures was strongly influenced by party-political competition and – probably also in view of the federal elections in September 2021 – campaign tones. The speaker from Bündnis 90/Die Grünen tried to present her party as fit for government. The AfD (Alternative for Germany) was once again put in the political dock by all the other parties, consistently with exaggerated accusations – but also the AfD members of parliament showed no more objectivity than the other speakers.
Demonstrators – victims of state violence?
The demonstrators in the parliamentary and government district, most of whom are rather middle-class, have probably not done their – in part understandable – concerns a good turn. When they speak of an “Enabling Act” or a “Corona dictatorship”, shouting “Peace”, “Freedom”, “Resistance” and “We are the people!”, answering the police’s calls to stop the demonstration with “We stay here!”, they are following the nationwide slogans of the other demonstrations since summer with the same words, but in this way they are not contributing to solving the problem or containing the pandemic.
“Respect works differently”
Gabriele Krone-Schmalz, known to a broad audience in Germany as a former Moscow correspondent for ARD (German TV), as author of books such as “Understanding Russia” (2017 in the 18th edition) and “Ice Age” (2018 in the 4th edition) and as a guest in talk shows, has published an important new book: “Respekt geht anders – Betrachtungen über unser zerstrittenes Land” (Respect works differently. Reflections on our quarrelling country). I also have to think of this book when I look at the 18 November. In her preface she writes:
“In a nutshell: It was the anger and a certain concern about undesirable developments in a country – where I like to live in – that drove me to write. […] But this time it is far more concern than anger that makes me write this book. Of course, I am also annoyed when alarmism and hysteria dominate the discussion of important issues instead of a civilised dispute over reliable positions; when agreement is reached all too quickly in public discourse and divergent positions hardly ever appear in the media; and when opinions can be expressed but their authors are excluded and defamed by the other camp […]. Respect works differently! All this is far more than just annoying. It is concerningly because it contributes to the decomposition of our society and gnaws at the very foundations of our democratic constitutional state. Democracy can only work with interested, well-informed and compromisable citizens. Drop-out contemporaries, hysterical and angry citizens drive the system against the wall, and missionaries, who always consider themselves to be on the morally right side, all too often display deeply intolerant behaviour without realising it themselves. In this book, I will look at the mechanisms of polarisation. I want to show where the traps lurk that turn pluralistic debates into polarising fission fungus. And I want to make people think about whether there might not be another way: calmer, more relaxed, more objective, in short: more respectful. Don’t we also have much more in common in our society than the heated debates suggest?” (Translation Current Concerns)
How to deal with one’s own concernedness?
Corona and COVID-19 have made many people directly or indirectly affected: not only those who have become seriously ill by the virus and are struggling with death, but also those who have been severely restricted in their lifestyle by government measures. There are winners and losers also in corona and COVID-19. It is not surprising that not only the intellect but also strong feelings are set in motion. This makes it all the more important to pause again and again. A book like the one by Gabriele Krone-Schmalz can be helpful in this respect.
The task of making the world a more equitable and more peaceful place remains – quite apart from corona and COVID-19. Party politicisation, emotionalisation and polarisation will most likely not help in this.
In this context, however, one important question remains: How can we explain the fact that German politicians, who, with regard to corona and COVID-19, speak of the paramount importance of protecting life and health, while on the other hand pushing for a Cold War and a militarisation of politics, after the presidential elections in the USA now even more so? Why, for example, is German Defence Minister Annegret Kramp-Karrenbauer holding a “keynote speech” at the Helmut-Schmidt-University of the Bundeswehr in Hamburg on 17 November 2020, in which she deepens the demarcation line with Russia and China making the military alliance with the USA the conditio sine qua non of German and European security policy? Is Germany now once again kowtowing to US President Biden, who – so far at least – is anything but a bringer of peace and protector of life and health? Is it not high time to resolve this paradox in favour of life? •
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