Marc Vallendar, December 21, 2021, Office and Mandate

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]

 

 

 

 

 

Marc Vallendar, December 10, 2020, Corona Decrees Committee

Berlin Abgeordnetenhaus, December 10, 2020, Plenarprotokoll 18/68, pp. 8153-8155. 

Right honorable Frau President. Right honorable ladies and gentlemen.

For nearly ten months, the Senate has issued incisive legal decrees in the fight against the supposed Corona pandemic. The first decree was issued on March 14, 2020, yet even at that time this parliament made clear that a decision over serious infringements of the basic rights  required a steady, continual control by the parliament.

Diverse amending decrees have followed. At the present time we have arrived at over 27 decrees. For a long time, it was rejected that these decrees be put in due time before the parliament. In most cases it was scarcely possible for the standing committee to undertake in due time an examination or to demand amendments or a replacement of the decrees in parliament. “Duly noted” [„Zur Kenntnisnahme“] reads the parliament’s decision in regards almost all decrees: An indictment.

The rapid pace of legal decrees in parliamentary practice has shown that the assignment of legal decrees to the committees presents an unsuitable means of examination since, besides these decrees, the committee must also occupy itself with the daily business. Generally, nothing results from the referral of these decrees. Our submitted motion [Drucksache 18/3092] now takes aim at this – in a special committee. This shall occupy itself exclusively with the Covid-19 legal decrees and be able to present to parliament by means of timely treatment a recommendation concerning passage. Its meeting shall be flexible. It is long since overdue to put these decisions and the debate over the measures into the hands of the elected representatives of the people and not to leave it to a central committee, extraneous to the constitution, of the Chancellor and the Minister-presidents.

For these in their self-empowerment have meanwhile developed fantasies of omnipotence and lost every measure and mean. And the unspeakable third population defense law, which was passed by the Bundestag to post facto legitimate the preventative measures, only intensifies this difficulty. This perhaps not approximately recalls a law of dis-empowerment, that of the Weimar presidential cabinet. A consideration of the the basic rights no longer occurs. The basic right to health and life will be raised to a super basic right to which all other basic rights have to defer. Freedom of movement, to be free to move about on Federal territory – set aside. The freedom of assembly to protest, without limit of number, against the preventative measures of the government – set aside. Freedom of occupation for restaurateurs, artists, sports managers, exhibitors and many more – set aside. The basic right of families to visit members – set aside. Equality before the law means no unequal treatment of those essentially the same. The First Bundes League may play, regional leagues not – set aside. Inviolability of a dwelling: If more visits are received than foreseen by the decrees – set aside. The right to information self-determination – set aside. The basic right to free development of personality – set aside. In brief: The Basic Law has been set aside.

A regime by decree is an imputation against democracy, and the longer this situation lasts, the greater the damage to our free-democratic state of law. My appeal is thus to all elected representatives of this parliament, independent of party colors: Let us in common finally show this government its boundaries! Let us contend in parliament over which scientists and experts shall be heard. Let us speak in parliament of the many fateful assaults on independent businessmen, artists and employees who do not know how they shall feed their families because they for months are only in a reduced way or even no longer at all allowed to work because they were not considered to be system relevant. Let us speak of the youth who want to go unhindered through the world, as is their right, and not feel themselves threatened by Corona. Let us speak of the old, the weak, the ill, how we can protect them without at the same time restraining every social contact.   

Let us dispute under open skies the suitability of a mask obligation!

Vice-president Manuela Schmidt: Do you consent to an interim question from member Walter?

Yes.

            Vice-president Manuela Schmidt: Please.

            Sebastian Walter (Greens): Many thanks. – I have still not understood two things. One is:  You already would have been able to do all of what you say. In that regard would have been required, i.e., motions from your delegation to amend something pertaining to the decrees and not only to take notice of it. Why so far has that not followed? All that would have been able to be done. How so is a committee still required? Of that, you still have said nothing at all, but have spoken in general of Corona. It is for me not understandable why the motion is needed.  

Herr colleague. I see for once that you had not noticed that we in the special session of November 1 had submitted amending motions on the legal decrees which were immediately voted on in parliament during the brief light lockdown which allegedly should last only four weeks. I also see that you do not know that we of the AfD delegation on the Legal Affairs Committee had in any case some months previously presented amending motions which you however rejected.

Independent of that, I see before all things that the other delegations have presented almost no amending motions at all to the legal decrees, the CDU not a single one. It must for once be put forward, that is the opposition here in this house. That is really a disgrace. On that account, let us by means of a special committee focus on the work, let us attain acceptance and democratic legitimization for the preventative measures, for otherwise we may drift into an authoritarian-led regime by decree which takes from the people every joy of life and perspective and the consequences of which can be much more destructive than the virus itself.

Vice-president Manuela Schmidt: Do you consent to an interim question                                    from member Woldeit?

Yes, please. 

           Karsten Woldeit (AfD): If the colleague of the Greens delegation did not notice that the respective motion to amend had been presented in the Legal Affairs Committee, then that is naturally his affair. – Herr colleague Vallendar, do you agree with me, or have the same impression as I, that for all communications – duly noted – , all confinement decrees which, for example, pertain to the Interior Committee, it was not at all desired that these be debated but really only duly noted, preferably to be voted on with a scrap of paper, so that the parliament in fact should not participate?

Yes, Herr colleague, that is absolutely correct. The only committee of which I am a member which twice concerned itself with the legal decrees was the Legal Affairs Committee. It debated on that once. Once there was also a slight amendment which the coalition had brought in regarding places of religion and assemblies. That however is completely correct in regards 27 decrees throughout one year; that really is an indictment. We as a parliament must nevertheless ask ourselves: Who actually governs us? – Yes, the government. And do we at the moment control it? – At the moment, we do not control it. That is plainly and simply the case. 

On that account, I say: Let us please vote for the way of freedom. Let us set up a special committee.
 

Many hearty thanks.

 

[trans: tem]