Müller-Elmau, Marie

Zillessen, Friedrich

English

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1/8We cannot outsource the protection of democracy to thejudiciary and politicians.verfassungsblog.de/in-favour-of-civilian-constitutional-protection/Friedrich ZillessenMarie Müller-Elmau09 February 2024In Favour of Civilian Constitutional ProtectionShould the AfD be banned or should Björn Höcke be stripped of certain fundamental rights?There is growing support at a political level for a party ban, an impressive 1.6 million peopleare calling for the forfeiture of fundamental rights in a petition by the organization Compact.Discussions about the use of these repressive instruments of defensive democracy areimportant. However, this is also accompanied by the false expectation that courts andauthorities will solve the threat to the rule of law and democracy posed by growingauthoritarian-populist forces for us.But political party banning proceedings take years. And with regard to the forfeiture offundamental rights, there is a lot that is legally unclear and controversial – as theconstitutional law expert Florian Meinel recently explained in the “Philosophie Magazin”. Inany case, there will be no AfD ban or forfeiture of fundamental rights before the elections inThuringia, Saxony, and Brandenburg this autumn. In the meantime, an active civil society isneeded. And even if an AfD party ban procedure is successful in a few years’ time, civilsociety will remain a crucial institution as a critical supervisory body. In other words: one wayor another, it depends on them.++++++++++++++++++2/8We are hiring: Coordinator Global Justice Clinic, Erfurt University (Pre- or Post-Doc, 75-100%)Are you interested in strategic litigation, clinical legal education, and global network buildingat the intersection of research, teaching and practice? Apply until 18.2.2024 – moreinformation here.++++++++++++++++++++++++Relying on the law, the constitution and state institutions is problematic for two reasons:firstly, it is not possible to build a watertight constitution. A constitution does not simply havegaps that can be closed with additional legal norms. Rather, our constitution relies in manyplaces on voluntary consent and consensus in order to fulfil its function of guaranteeingpolitical plurality and fundamental freedoms.Proposed solutions that rely on the law in orderto protect the law are usually themselves exposed to the risk of abuse. The problem istherefore not solved by amending the law, but at best shifted. Even the most well thought-outconstitution is not immune to abuse.Certain areas of tension arising from our constitutional order are unavoidable. For example,the complex interplay between the majority and the minority. A liberal democracy thrives onthe fact that different interests compete with each other and must be balanced. Unilaterallyresolving these tensions in the hope of a more watertight constitution cannot be the goal butwould in turn be authoritarian.On the other hand, the specific instruments of defensive democracy provided by the legalsystem are not unproblematic. Bans on political parties or associations, constitutional loyaltyclauses and other mechanisms are designed to protect the “free and democratic basicorder”. However, this term is vague, loaded with different values and therefore open toabuse. Historically, the instruments of defensive democracy have primarily been used3/8against left-wing groups, such as at the “Radicaldecision” of 1972, which primarily affectedmembers of the German Communist Party (Deutsche Kommunistische Partei) and the K-groups. Other examples also show that the instruments were not effective on the other side,in recognizing and preventing right-wing dangers.Furthermore, as repressive instruments, they themselves tend to reduce democracy. There isa danger that society will relieve itself of responsibility by delegating tasks to the courts andauthorities. This can lead to the critical public shirking its responsibility – and not looking at itin the crucial moments. They stop anticipating and being vigilant. Moreover, repressiveconstitutional responses at best suppress the problem of growing anti-liberal actors, but theycannot solve it. A court ruling does not simply wipe away the causes of the AfD’s rise. Courtdecisions can therefore solve some things, but not everything.++++++++++++++++++CALL FOR PROPOSAL – MIGRATION CONFERENCE IN ITALYThe 2024 ADiM-IntoME Migration Conference on “Immigration and Public Power” will takeplace from 29 to 31 May 2024 at the Tuscia University (Viterbo, Italy).After a plenary session on the role of judges in migration, the conference will include twodays of panel sessions. Panels will allow junior and senior scholars to present their researchon topics related to the Call for proposals.More information and the online form for submitting proposals (by 1 March) are availablehere.++++++++++++++++++++++++4/8Anticipation instead of repressionThat’s why civil defence is key. It depends on anticipation. Anticipation – unlike prevention –does not mean preventing a crisis but preparing for a certain situation in good time. This isalso effective when dealing with anti-liberal actors such as Viktor Orbán or the PiS party.This is because such actors change the rules of liberal democracy in a formally lawfulmanner in order to appropriate electoral law, the judiciary or the media and thus neutralisethem as institutions. They typically proceed step by step and do not try to do everything atonce. An informed civil society, state officials and democratic parties that recognise anauthoritarian-populist move when it is made are essential for preventing such developments.The media then report on it, civil society organisations mobilise and neighbours exchangeviews. The critical public takes to the streets and protests. Education and awareness canthus prevent the liberal constitutional state from being quietly and insidiously undermined.Anticipation also guarantees that the eye is sharpened for the tactics that undermine the ruleof law, which are the main issue – instead of focusing too much on individual parties orpoliticians and thus losing sight of other threats. A resilient democracy is therefore first andforemost a prepared democracy.The preparatory work for an anticipatory civil society includes analyses such as thosecurrently being carried out by the Thuringia project of the Verfassungsblog. The aim is to runthrough scenarios in a kind of test run that have not yet occurred but could occur withpolitical and legal plausibility in the event of AfD election successes.Apart from a few exceptions, law and the constitution have so far rarely been interpreted in aforward-looking manner. But the Thuringia project shows that it can work. Concrete threatsand weak points for the democratic constitutional state have already been identified and theacademic debate on previously unresolved issues has been driven forward. Recently, forexample, it was possible to understand what happens when an authoritarian-populist interiorminister instructs the President of the Office for the Protection of the Constitution to takeaction against certain opposition alliances. Telling these stories in detail can help civil societyto grasp the significance and scope of a certain step and identify the decisive institutions,people and moments – so that it can stand by its side.The most vivid example of this anticipatory interaction between legal science and civil societycan be found in Israel. There, thousands of people took to the streets against the so-calledjudicial reform. They had recognised that the seemingly technical question of exactly how fara court’s scope of review extends, which was one of the issues at stake in the reform, was ofconcern to everyone. Such changes to the law and the constitution, it seems, have nothing todo with our individual lives – until they do. And by then it is usually too late.In Israel, numerous legal scholars, such as Tamar Hostovsky-Brandes, have invited peopleinto their homes to explain to them what is behind the Israeli government’s plans. In doingso, they were able to draw on experiences from Poland and Hungary. Unlike there, civilsociety awareness of illiberal moves in Israel has led to the government’s plans coming5/8under social pressure. At the beginning of the year, the Supreme Court overturned the law.With its vociferous protest, Israeli civil society backed the Supreme Court in legitimising itsdecision.This is how civilian constitutional protection works. In order to prevent the strengthening ofilliberal actors and the implementation of their plans, civil society in Germany must finallynetwork, inform itself and take to the streets at key points – as hundreds of thousands arenow doing.++++++++++++++++++Studentische Hilfskraft – Administration & RedaktionLiebe Studierende,wir suchen weitere Studentische Hilfskräfte als Mitstreiter*innen für Demokratie,Rechtstaatlichkeit und Menschenrechte! Du hast Lust uns in Redaktion und Administrationzu unterstützen?Dann hier entlang für mehr Informationen.Wir freuen uns auf deine Bewerbung!++++++++++++++++++++++++This Week on Verfassungsblog…In what is probably our longest long read ever, MATHIAS HONG argues in favour of usingthe instruments of militant democracy against those state chapters of the German AfD partythat are most probably unconstitutional. Part I is dedicated to the forfeiture of fundamentalrights under Art. 18 of the Basic Law and explains why the prominent party functionaries ofradical state chapters are meet the requirements. Part II takes a closer look at therequirements to the party’s radical state chapters and highlights the role of constitutional lawscholars who interpret the term “people” in the Basic Law in an ethnic-exclusionary sense.The concluding Part III explains why allegiance to the constitution entails an obligation to fileapplications for forfeiture and party bans. It also requires public officials – and constitutionallaw scholars in particular – to take a stronger stance against the threats to liberal democracy.Speaking of threats to liberal democracy: KONRAD DUDEN argues that the German FederalConstitutional Court should be better protected. In addition to constitutionalisation, he bringsprocedural protection into play, as exists in France or Spain in the form of organic laws.6/8That Germany is not a unique case in Europe is also emphasised by HANNAH BECK andMARIE MÜLLER-ELMAU in their response to Friedhelm Hufen’s article in the FAZ. The tworesearch assistants in the Thuringia project criticise Hufen for missing the point of thedebate, namely that authoritarian populists in Poland, Hungary, Italy and Turkey are notrestructuring liberal democracy against the constitution, but with it.Nils Kohlmeier and Andreas Gutmann assessed the sustainability chapter in the EU’s newassociation and free trade agreement with the Mercosur states as lacking in participationrights and the protection of indigenous groups. Their analysis also takes a critical look at theprevailing concept of sustainability and lithium mining as the dark side of the so-called‘European Green Deal’.In Switzerland, the Federal Council started formal negotiations with the EU to conclude aFramework Agreement 2.0, introducing modified monitoring and novel judicial mechanisms.CARL BAUDENBACHER critically sees the attempt as a triple B approach: in substance, itconsists of unsuccessful bricolage, the foundations were laid by bullshit, and bustle issupposedly of the essence.There was much puzzling and wrangling over what would ultimately be included in the EU’sArtificial Intelligence Act. Some things were toned down, but many good ideas remained.PAUL FRIEDL and GUSTAVO GIL GASIOLA provide a comprehensive and critical overviewof the three main areas covered by the now (almost) final version of the AI Act: High RiskSystems, General Purpose AIs, and the newly established governance system.In France, the government promulgated and published the new French Immigration Act, aday after the Conseil Constitutionelle declared a whopping 35 articles unconstitutional onprocedural grounds. It thereby constitutes the most repressive adopted Act since 1945 andheightens a migration restrictive dynamic, argues MARIE-LAURE BASILIEN-GAINCHE.Earlier in January, the Advocate General delivered his opinions in two infringementproceedings against the Czech Republic and Poland. NORA VISSERS highlights thepotential these proceedings bear to allow the Court to clarify the core of the EU value ofdemocracy which has so far remained largely unexplored.Following allegations that several members of its Palestinian area staff participated in theOctober 7th atrocities, UNRWA preemptively dismissed them. This was politically necessary,given that 17 donor states have suspended their contributions, posing an existential threat toUNRWA, the largest provider of humanitarian assistance in Gaza. However, as OMARYOUSEF SHEHABI explains, it also demonstrates the sui generis and subordinated natureof UNRWA’s Palestinian area staff which has the same obligations but not the same rightsthan other UN staff.7/8If social workers make use of their right to refuse to testify, they usually have to pay a fine.However, they also face criminal prosecution under Sections 258 and 13 StGB. KEREMDYKAST shows why this practice violates the ne bis in idem principle and Art. 14 para. 7 ofthe ICCPR.ALICE BERTRAM calls on the German government to recognise the signs of the times. Itshould finally implement the EU directive, which offers a ten-day entitlement to paternityleave. Moreover, she argues that the Basic Law guarantees a “subsistence minimum fortime”.Verfassungsblog Debate: The Russian Constitution at 30The Russian Constitution has just turned 30 years old. But do law, constitution, and courtsstill play a role in a deeply authoritarian and aggressive regime? What has gone wrong in thehistory of Russian constitutionalism? These questions are not only of domestic relevance:For Soviet dissident and Nobel Peace Prize laureate Andrei Sakharov, peace went hand inhand with human rights and progress. A new blog debate, in collaboration with the GermanSakharov Society, is seeking answers and sheds light on the legal tools of Russianauthoritarianism. In the first three debate contributions, VLADIMIR GEL’MAN shows how the1993 constitutional crisis paved the way for violence, while CAROLINE VON GALLcontemplates the regime adaptation of Russia’s judicial elites, and MARIANNAMURAVYEVA discusses the role of women’s rights in the Russian constitution and reality.Verfassungsblog Debate: Ruling without the Power to Govern –Authoritarian Populism and Parliamentary ObstructionPAUL GLAUBEN continues the second week of the online debate by analysingparliamentary control rights in terms of their suitability for obstruction. MATTHIAS LUKANoutlines the Austrian experience with parliamentary obstruction and analyses more and lesssuccessful attempts to curb it. From a political science perspective, ANNA-SOPHIE HEINZEanalyses how the AfD abuses parliamentary instruments and exploits parliament as a stage.Speaking of staging grounds: AZIZ Z. HUQ and TOM GINSBURG focus on the subnationallevel when comparing the Republican Party with the AfD. In the final contribution to thedebate, ANITA NISSEN explores the extra-parliamentary influence of minority positions usingthe example of Quran desecration acts in Denmark, Sweden, Norway and the Netherlands.LICENSED UNDER CC BY SAEXPORT METADATASUGGESTED CITATION  Zillessen, Friedrich; Müller-Elmau, Marie: In Favour of CivilianConstitutional Protection: We cannot outsource the protection of democracy to the judiciary8/8and politicians., VerfBlog, 2024/2/09, https://verfassungsblog.de/in-favour-of-civilian-constitutional-protection/, DOI: 10.59704/6a2d3449fe1e304f.Explore posts related to this: LICENSED UNDER CC BY SA

In Favour of Civilian Constitutional Protection

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In Favour of Civilian Constitutional Protection

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