From the erosion of the law to the usurpation of power

What can be done when the constitutional state is eroded, legal protection is no longer guaranteed and legal certainty no longer applies? And this, to quote former Chancellor Merkel, in the best Germany of all time. What is actually happening at the national level?

Freedom rights and
rights of defence against the state

The first 19 articles of our Basic Law contain numerous freedom rights and rights of defence against an intrusive state. And that is no coincidence. In order to be able to invoke these freedom rights and rights of defence, there must be a practised separation of powers and an independent judiciary.
  This is provided in our Basic Law and in all democratic constitutions. And for good reason. The days when a monarch or, in our more recent history, a dictator held all the power and considered himself sovereign came to an end with the Basic Law. The former concentration and abundance of power has been replaced by the separation of powers. It is just amazing how these articles of the Basic Law are by now being handled in Germany.

The election of the
federal constitutional judges

If the Federal Constitutional Court is the supreme guardian of the constitution and can therefore decide in the final instance on the constitutionality of the legislature, it is to be expected that the federal constitutional judges, as the bearers and guarantors of this institution, are aware that they must stand above the parties. Otherwise, there is a risk that their reputation will be damaged. This would rightly give rise to fundamental mistrust.
  However, party politics already play a role in the election procedure for the 16 Federal Constitutional Court judges, half of whom are elected by the Bundestag and half by the Bundesrat. This is because an election committee composed according to party proportional representation proposes the candidates, who are then presented for election to the Bundestag. Since the governing parties usually have a majority here, the majority is usually already determined. The situation is similar in the Bundesrat.

The case of Stephan Harbarth

Stephan Harbarth was a CDU member of the German Bundestag under Chancellor Angela Merkel. Parallel to his work in the Bundestag, he was listed as a lawyer at the law firm Schilling, Zutt & Anschütz. He has never held a judicial office regardless of the level. This raises the question of what qualifies him for the highest judicial office. Harbarth stood for election in the Bundestag with a speech to the members of parliament. His election promise was to advocate for migration policy in the style of Chancellor Merkel and to speak out in favour of her political handling of the coronavirus pandemic. He was subsequently elected and, in keeping with pandemic policy, has been President of the Federal Constitutional Court since June 2020.

Is the German Constitutional Court
becoming an ‘organ’ of the party state?

While Mr Harbarth’s election was already highly questionable, given that as a former CDU member of the Bundestag he was not above party politics, which is an essential prerequisite for exercising this high judicial office, he merely repeated the principles of the current government policy in his “election speech”.
  The current constitutional court elections are also an expression of a radical trend: Germany’s highest court is being exploited for party political purposes. Three judges were up for election. Frauke Brosius-Gersdorf and Ann-Katrin Kaufhold are the SPD candidates, and Günter Spinner was nominated by the CDU.
  Frauke Brosius-Gersdorf was the focus of a heated debate. On the ZDF talk show Markus Lanz, she spoke about banning the AfD party. She considers such a ban to be a sign of a strong democracy. The only problem for her was the 10 million AfD voters. What should then happen to them?
  Her call for a “reform” of the abortion law also caused outrage. In an essay, she claimed that the assumption that human dignity applies wherever human life exists is a “biological-naturalistic fallacy”¹. It is obvious that this means the fundamental exemption from punishment for abortion even outside paragraph 218 and up to birth.
  Another bone of contention was Frauke Brosius-Gersdorf’s firm stance on the introduction of a general vaccination requirement, which she wanted to see enshrined in constitutional law. All of this led to fierce protests and a postponement of the election. In the meantime, she has withdrawn her candidacy amid extreme media uproar. The mainstream press and left-wing parties in the Bundestag blamed right-wing extremist propaganda for this.

Constitutional Court candidate
Ann-Katrin Kaufhold and the ecological
transformation of the Basic Law

But it is not only Frauke Brosius-Gersdorf who, with these clear statements, ignores the traditional requirement of restraint, which in her function as a candidate for the office of judge at the Federal Constitutional Court is an indispensable expression of judicial neutrality. Ann-Katrin Kaufhold also positions herself as a clear representative of political interests with her view that the Basic Law needs an ecological transformation. She believes that nature should be granted fundamental rights. Even stones have a right to be protected. This stands in threatening contrast to the protection of fundamental human rights. In doing so, she is advocating an antagonism between nature and humans. Anyone who becomes an “advocate for nature” assumes the right to stand above human rights. This brings back memories of the UNESCO Biosphere Conference in 1968. At that time, the survival of Spaceship Earth was elevated to a new ethical foundation to which everything else was to be subordinated.
  The danger of exercising power with the help of a creepingly introduced “eco-dictatorship” via the election of judges to the Federal Constitutional Court cannot be dismissed.

Democracy derives
from ethics – not from formalism

Democratic action was never intended to be formalism, otherwise every authoritarian regime – while maintaining an outward form – would also correspond to democratic action.
  But democracy has nothing to do with formalism. It derives from an ethic that is oriented towards the social nature of human beings. It seeks to satisfy people’s desire for community, peace, justice and protection, both internally and externally. That is why people have joined together to form state communities. These are their legitimate demands on a community that is ideally supported and financially sustained by them.
  Let us ensure that our community and its high civilisation and culture do not perish as a result of the erosion of the law, lost virtues and cultural amnesia. •

¹  https://www.aerzteblatt.de/news/richterwahl-brosius-gersdorf-weist-kritik-als-diffamierend-und-falsch-zuruck-fbae84c2-1e08-44f1-90a6-52581e1203e6