Berlin Abgeordnetenhaus, Plenarprotokoll
19/3, pp. 111-112.
Right honorable Frau President. Right honorable ladies and
gentlemen.
All would be lost if one and the
same man or same corporate body, either of the most powerful or of the nobles
or of the people, exercised the following three authorities: To issue laws, to
carry out public decisions, to pass judgment on crimes and private disputes.
– A citation of Montesquieu from his work “The Spirit of the
Laws”, 1748.
He therein analyzed the English constitution of that time and together with the English philosopher John Locke postulated the separation of the legislative and governing powers. Montesquieu went further: He separated the areas of legislation, governing power and judiciary. These checks and balances assure that it cannot come to an individual’s abuse of power. The rulers notwithstanding need not at all be virtuous so that it does not come to an abuse of power. The natural failures and baggage of men will thus be healed and compensated by the separation of powers.
This principle of separation of powers inspired every constitutionalist of
every democratic state in the world and is also today written into Article 20,
paragraph 2, of the Basic Law:
The state authority
shall be exercised by the people…through specific legislative, executive and judicial bodies.
Despite this, in Germany prevails the so-called entanglement
of powers [Gewaltenverschränkung]. It
infringes upon the classical teaching of the strict separation of powers. Any
of those who nevertheless proceed on the classical concept and demand the
originally intended separation of duties between legislative and executive –
thus among others, Bundes-President Johannes Rau and his three predecessors in
office, Roman Herzog, Richard von Weizsäcker and Walter Scheel, in their “Presidents’
Appeal” of September 1999 – can certainly call upon an authority to be taken
seriously; namely, that norm of separation of powers in the Basic Law.
Already five years ago, my delegation sought in this
sovereign house to bring attention to this defect in the Berlin Constitution
and get underway a corresponding reform of the Berlin Constitution. Exactly as then
is this at the beginning of the legislature a priority plenary theme, since the
newly formed red-green-red Senate has advanced no unified position. While the
Linke already in practice realize the separation of office and mandate in
regards the question of filling Senate offices, the question of a strict
separation of powers for the Greens and the SPD appears rather to be
troublesome; ja, the Greens even violate
their own party day decision and their own program.
With Frau colleague Jarasch and Herr colleague Wesener, the
Greens present two members for Senate offices, the SPD returns Frau colleague
Giffey as governing Bürgermeister, as well as Frau colleague Spranger and Herr
colleague Geisel as Senators in office. Every official upon entry into a German
parliament, following the principle of the separation of powers, must hold in
abeyance his official status. Yet as it happens in regards the heads of the executive,
this principle is set aside. Here, we say clearly and distinctly: Who is a
parliamentarian shall in the future no longer be allowed to be part of the
executive and vice versa!
To this pertains the unjustified enrichment of those who at
the same time are Senators and members. Besides the payment according to B 11 is
of course to be added for 50 of 100 the Abgeordnetenhaus monthly compensation.
No Senator in the past in this house has ever really worked as a member. It
would also be completely absurd: Why should a Senator as a member put
parliamentary inquiries to himself so as to answer this in his function as a
Senator?
Besides, on that account, when the parliamentary documents
of the last legislative period are scoured, is to be found not a single
parliamentary inquiry of member Geisel. Even in the committees, the members do
not take part, or in any event only as Senators. These examples quite
distinctly show why it is thoroughly unreasonable to ask elected members to
themselves decide whether they want to be part of the executive or part of the
legislative.
If in this sovereign house it will always be preached that
parliament was the commanding organ of control of the freely elected, and
members are subject only to their consciences in face of the government and are
not simply a performance aid of the governing majority, then should you also
live this principle to the last consequence. However it is to be put, the
voluntary renunciation is the exception rather than the rule. Therefore, this
parliament should summon up the courage and in this question go essentially
further than the hitherto foreseen constitutional framework. We should
therefore enact the separation of office and mandate in the Berlin Constitution.
As a city state, we would also not be alone, since already
the constitutions of the States of Bremen and Hamburg provide for exactly such
an identical regulation. There, for years already is practiced the strict
separation of powers.
Frank-Christian Hansel (AfD): Hear, hear!
Let us follow their example!
I heard that following me a speaking contribution will be
extended only to Frau Dr. Vandrey of the Green delegation. Here, I am a bit
baffled, before all things that the CDU and the FDP allow the Greens to speak
for them, but we will see.
Otherwise, it only remains for me in conclusion to wish all
a beautiful, blessed and Merry Christmas with your friends and your families.
May it be well for you in the New Year.
Many hearty thanks.
[trans: tem]
