AThis Wednesday, the Bundestag will get down to business. The government coalition wants to pass the Third Civil Protection Act, the Federal Council will be involved in a special session on the same day, and the Federal President will then sign the law on the same day.
The current version of the Infection Protection Act currently provides a general clause for state measures in Section 28 (1). That is not a sufficient legal basis, it is too general. The rule of law in Article 20 paragraph 3 of the Basic Law (GG) provides for the “reservation of the law”. State measures that are so essential that they affect fundamental rights require a legal basis for authorization, i.e. a formal parliamentary law.
The sovereign, i.e. the citizen, must give his permission if his fundamental rights are interfered with. That is popular sovereignty. The law must also be clear, specific and proportionate. It must pursue a legitimate purpose, be objectively suitable and necessary for this (ie there must be no milder means), and the intensity of the intervention must be proportional to the legitimate aim pursued.
Constitutional lawyer Christoph Möllers commented on the lockdowns in the spring “that the most massive collective encroachment on fundamental rights in the history of the Federal Republic can take place without an appropriate legal basis because it is correct in the matter; since the Prussian constitutional conflict, when the monarchical executive took the budget right and thus had a lasting impact on the legal understanding of the Weimar Republic. This is all the more true if – unlike at that time – no serious attempt is made by Parliament to correct this situation. “
Parliament will now attempt this on November 18, 2020. But is it a serious attempt?
No. What the ruling coalition is presenting here is a farce of law. A hasty messing about with far-reaching consequences. It is a copy-and-paste of the previous regulatory fantasies in legal form and thus a slap in the face of parliamentary democracy. Let’s take a closer look at just three points.
First: the “determination of the epidemic situation”
The hook for all measures is the “determination of an epidemic situation of national scope” in Section 5 (1) of the Infection Protection Act (IfSG). This is an indefinite legal term for which there is no definition in the law itself. The Bundestag establishes the epidemic situation and cancels it again, it says succinctly in the law.
Only the justification of the law provides information and sees such a situation as given, among other things, if there is a “significant threat to the functioning of the community”, if there is a “risk of a significant threat to public health” or if there is a “risk of destabilization of the entire health system” must be prevented.
An indeterminate legal term is thus “explained” by further, equally indefinite terms, which in the end, however, perish in approximate terms. There is no mention of the number of infections, disease outbreaks or mortality. When does the “community” threaten to collapse, what exactly does it entail? What is “public health” anyway? When is the entire health system destabilized?
Ironically, the fulcrum on which all coercive measures hang, the “concept of the epidemic situation of national scope”, is a legal grab bag with terms that can be brought to life in Sunday speeches with forceful rhetoric. So even with the next wave of flu.
The entire construction is on shaky feet from the start. And the findings that the legal scholar Thorsten Kingreen from the University of Regensburg made in an opinion for the Bundestag remain:
“The legal problem is essentially that the determination of the ‘epidemic emergency’ triggers a constitutionally highly problematic right of exception and its permanent maintenance creates the fatal appearance of a state of emergency that is not constitutionally provided for.”
Second: the prohibition catalog
After the general clause of Section 28, a new Section 28a (1) IfSG is now simply being introduced, with a non-exhaustive list of coercive measures and prohibitions, as we have known them since November 1st at the latest and which the government leaders in an informal, non-transparent procedure have decided in camera: the prohibition and restriction of cultural, leisure and sporting events, the closure of restaurants, as well as overnight, going out, travel, alcohol bans and much more.
Some constitutional lawyers, who, as individual experts, should comment at short notice, see this regulation as unconstitutional even at the drafting stage. It is not explained, weighed, weighted, defined, but ultimately the status quo of legislative fantasies from an exceptional body is once again cast into legal form. The reviewer Professor Kießling from the University of Bochum comes to the following conclusion:
“The provision does not reveal any weighing up of the interests fundamentally affected, but rather aims to unilaterally legitimize the previous approach during the corona epidemic. In this form, the courts will most likely not accept the provision as the legal basis for the Corona protective measures. “
The reviewer Professor Klafki from the University of Jena thinks that some rules are also “incomplete, ambiguous or incorrectly worded”. An example:
“Exit restrictions ‘in private space’ are explicitly permitted. If you read it in an unbiased way, you could think that the legislature wants to authorize the competent authorities to forbid going into your own garden. “
Third: the lack of certainty
The Basic Law requires that “content, purpose and extent” of the ordinance must be recognizable from the statutory basis of authorization. The law as it stands is a lucky bag. A blanket power of attorney for a regulation regime of the Federal Minister of Health. The deeper and broader the legislature intervenes in fundamental rights, the greater the effort to justify the matter.
This is generally lacking. This is not the only reason why the legal scholar and individual reviewer Christoph Möllers from the Humboldt University in Berlin has “serious doubts” about the constitutionality of the law. It is true that, as Möllers says, the state measures taken since March of this year to contain the pandemic have encroached upon fundamental rights in a “breadth and depth unknown under the Basic Law”. However, the legislature does not initially take this historical situation into account by increasing the expenditure on justification. Rather, it goes with copy-and-paste in the ordinance arbitrariness.
These are just a few points, there would be a lot more: the question of setting up vaccination centers, the question of the rigid limit of 50 new infections (meaning positive PCR tests) per 100,000 inhabitants, according to independent expert committees, after a fundamental scientific analysis of the many , mutually contradicting measures.
Politics demands obedience, but does not even manage to present a coherent, broad-based legal pandemic regime that complies with the Basic Law. Even the Scientific Service of the Bundestag mentions some deficits and reservations.
Something was improved over the weekend. The coalition was apparently able to agree on a time limit for the measures. The federal states should also justify the measures better and some terms should be specified. However, no agreement could be reached on parliamentary scrutiny for certain measures. That would have given the Bundestag the opportunity to approve certain measures retrospectively.
The law is currently being discussed in committees, and we can hear that the coalition is now introducing another ten pages of changes at short notice. How MPs should work correctly with such an information policy is a mystery and gives the whole process the appearance of hasty dilettantism. A tragedy.
Overall, this is the greatest test that parliamentary order has seen since 1949. Worlds don’t die with a bang, but with a whimper, writer TS Eliot knew. If this draft becomes law, the institution of the Bundestag will give itself up, it will dig its own grave.
Milosz Matuschek is a lawyer and journalist. This post is an updated and abridged version of a text that was previously published on his blog “Free floating intelligence“Has appeared. Together with Gunnar Kaiser, Matuschek is the initiator of the Appeals for free debate rooms.