German
Bundestag, September 10, 2020, Plenarprotokoll 19/173, pp. 21775-21776.
Herr
President. Ladies and gentlemen.
One
remark beforehand, Herr Frieser. I am now really a bit astonished: You here claim
nothing is to be delegated to the
Federal Interior Ministry and the fundamental of separation of powers is guaranteed. It is certainly
precisely the problem here that that is in no way the case; but I will go into
that presently in my speech.
Ladies
and gentlemen, democracy lives by presence, by assembly at the same time, same
place, be it in an assembly of citizens, be it an assembly of members in the
parliament or in a party assembly. Common affairs will here be deliberated and
decided. Consequently, the Federal election law prescribes that candidates for
election to the Bundestag must be decided on in assemblies. In consequence of
the Corona crisis, the coalition delegations now present a draft law which will
create the possibility of a deviation from this.
What
exactly is in the draft law? The Federal Interior Ministry, in case of natural
catastrophe or a similar event – we all know that Corona is meant –, shall be
empowered by legally ordered regulation to name candidates for election without
meetings of assemblies. The prerequisite shall be the statement of the German
Bundestag’s election verification committee that the holding of assemblies is
wholly or partially impossible.
Now,
to the making of emergency regulations in a crisis, there is clearly nothing to
be objected to. But what you here today put forward is unconstitutional.
According
to the established jurisprudence of the Federal Constitutional Court, the
parliamentary law-giver itself must come to all essential decisions. It may not
leave it to other legislators or to the executive. The delegation of essential
decisions would be similar to an act of self-disempowerment.
A
new regulation of the election law, more precisely stated: The presentation of
candidates – and here it is about a new regulation – is a prime example of the
identity of the aspects of fundamental law and democracy. It is an operation at
the heart of democracy. For it, the parliamentary law-giver itself must answer.
In no case may it leave free law-making to the executive. Thus a regulation by
means of prescriptive authorization, as foreseen here by you, is already
fundamentally excluded.
Once
admitted, a regulation by means of prescriptive law would here be permissible.
Then, according to Article 80 of the Basic Law, the content, purpose and scale
of the given authorization must be determined. That is totally lacking here.
The text of the law itself reveals not one word of which way the required
nominations assemblies shall be replaced. Merely in one brief paragraph of the
initial portion are the alternatives vaguely indicated, such as a nomination of
candidates by written or electronic processes, followed by a mailed ballot.
There is not a word concerning the practicality of similar things. This
obviously cannot satisfy the determination principle.
One
must consider what remains: You here wish to introduce the possibility of
weakening the democratic rules of play, built up over decades, and then you do
not even approximately state in the text of the law how you put forward a
nominations procedure without an attended event [Präsenzveranstaltung]. That is grotesque.
What
finally remains to be said? The presented draft law, in one of the most
sensitive areas of democracy, contains a quasi full empowerment of the Federal
Interior Ministry. It offends against the fundamental of separation of powers
and the principle of democracy.
We
reject it self-evidently.
Thank you.
[trans: tem]
