German Bundestag, Plenarprotokoll 19/207, pp. 26120-26121.
Herr President. Ladies and gentlemen.
In Germany, we know of two legally normative states of exception: For one, the case of defense; for the other, the case of pestilence, pandemic or infection.
On the perimeter of the regulations of one of the states of exception, heated debates for some ten years took place in parliament and in the media. In the end, there was a most highly contested vote in the German Bundestag. Students, intellectuals, labor unions, yet also the SPD and the FDP – hear and be amazed! – then proceeded against this alteration of the Basic Law. They feared a danger to democracy and they remembered Adolf Hitler’s seizure of power.
The regulation of the other state of exception went quite smoothly: A few days of debate, a discrediting of opponents by the old parties and the media with the simultaneous support of those governing, a couple of water cannon missions against peaceful demonstrators
Niema Movassat (Linke): Very
peaceful were they!
and then a nearly unanimous vote in favor by the entire Grand Coalition of CDU, CSU, SPD and Greens.
Ladies and gentlemen, in the case of defense, a state of exception foresees the possibility to intervene in five basic rights: Expropriation, withdrawals of freedom, a service duty for women, limitations of Articles 10 and 11. In a case of pestilence and pandemic, it can come to temporary, unlimited interventions in nearly all basic rights: To begin, in regards human dignity, Article 1; over the general right of personhood, Article 2; the equality principle, Article 3; the practice of religion, the freedom of learning, research and assembly, Articles 4, 5, 6; family rights, Article 6; freedom of movement, Article 11; freedom to pursue an occupation, Article 12; inviolability of a dwelling up to interventions in the right of personal property, Article 14.
Jan-Marco Luczak (CDU/CSU): You can
recite! But that is all!
It thus then concretely appears: §28a of the Infection Protection Law. Possible is: Distancing order, mask duty, prohibition of leisure events, prohibition of operation of leisure establishments, prohibition of sporting events, prohibition of events, gatherings, processions, assemblies, religious meetings, prohibition of travel, prohibitions of overnight lodgings, prohibition of the operation of restaurant establishments, closing of industries, businesses, retail and wholesale trade, prohibition of establishments of health and social work, closing of colleges, orders on going-out limitations, prohibition of entries to old-age and care homes. This was not definitive, ladies and gentlemen. So far, so bad.
Besides that, the only basic right not infringed is the basic right of asylum. Thus an entire people are blockaded and forbidden to travel; yet anyone may enter and remain. Let that be understood by who will.
Ladies and gentlemen, we have now compared two states of exception, and I ask you: For which of the two must higher prerequisites be fulfilled? For the one case, the defense case, where five temporarily limited basic rights can be infringed, or for the pestilence case in which the possibility exists to temporarily infringe without limit all the basic rights which I have just named for you, with all the harassment measures which I have just named for you? In addition: For what must higher prerequisites be fulfilled? – I know of none. I say to you: The pestilence case is much more simple to determine than the defense case. For it, a simple majority in the Bundestag suffices to abolish all basic rights. To determine the defense case, a qualified majority in the Bundestag is required and, what is more, the approval of the Bundesrat.
Whether and when the basic rights will then be conceded is in the stars. You know of the discussions, primarily conducted by Frau Lambrecht – where is the good, actually! Certainly not there – and by Herr Maas, that it would be a matter of privileges as to when one has the basic rights.
Ladies and
gentlemen, I say to you quite clearly: For us, basic rights are not privileges.
Basic rights apply always and over all, and before all in times of crisis.
Write that behind the ears.
We say: There is a need for a more considerable constitutional clarification. For us, the unconstitutionality lies directly at hand. If already a state of exception, then a standardization in the Basic Law. That is called a superseding of the constitution.
Yet the legal regulation, ladies and gentlemen, is also unconstitutional, since it is indeterminate. The spread of a “threatening infectious illness” suffices to determine this state of exception. What this threatening infectious illness shall be is not further defined. Thus, when in doubt, any wave of the flu, as emerges nearly every winter, suffices so as to blockade and harass an entire people. How useful for those who govern, who for years have accustomed themselves to millions of violations of constitution and law!
The Infection Protection Law – ladies and gentlemen, I say this quite clearly – is a knowingly vague, subjugation and robbery of freedom law. The solution would be so simple. Why do you not simply define the “threatening infectious illness” in §5 as in §6? Only one paragraph later are threatening illnesses concretely listed. A law could thus be correctly fashioned with a degree of certainty so that no problem with legality arose. Yet you wanted it vague. You want to be free to do as you please, to the burden of the citizen.
Why? The catalogue of chicanery in §28a which I have have just recited is directed at every citizen. You place every citizen under a general suspicion. That is a break with the hitherto fundamentals of police law, according to which fundamentally only vagrants may be objects of a state’s preventative measures. They are thus a serious violation against the principle of proportionality.
If you then look for once at the potential for manipulation which applies to the incidence values – arbitrarily set incidence values – : If you want the state of exception, you simply test more; then you have more infected, in regards to which we all meanwhile know: “Infected” does not necessarily mean sick nor necessarily in a position to be infectious. Thus you can do as you please; and you want precisely that. The door is opened to arbitrariness. Through it come violations against federalism and thus the breakdown of the separation of powers between Bund and States.
Ladies and gentlemen, this law is tangibly unconstitutional and ought never to have taken effect. The Merkel coalition however has with the support of the Greens whipped and passed it through the parliament. The opposition, here for once not only in the form of the AfD but also supported by the FDP and the Linke, could with parliamentary ways unfortunately not prevent this law taking effect; therefore this motion [Drucksache 19/26239], for which the same just possibly may vote and with us of the AfD give to all true democrats and friends of democracy here in this house the opportunity to appear with us before the Federal Constitutional Court. And I promise you: We will be successful at the Federal Constitutional Court. Just as I stand here: We will win this process when we then conduct it in common as opposition parties, ladies and gentlemen.
I have been cognizant of the proposal – it comes to the same – to forego a formal written application with which you also can bring yourselves into the debate. We then may formulate in common the written application.
Thus – I come to a conclusion, Herr President – : In common with us of the AfD for freedom, democracy, the state of law and basic rights – this is what it is! I thereto heartily invite you all.
Niema Movassat (Linke): You yourself must laugh, because it is such an imbecility, what you are telling here!
Carsten Schneider (SPD): A Punch and
Judy Show
You are heartily welcome.
Many thanks.
[trans: tem]
