Autor/Autorin
„The Federal Government’s draft emergency law does not impress with its clarity“. With this remark, Attorney General Dr Fritz Bauer began his introduction to Jürgen Seifert’s criticism of the Federal Government’s draft emergency law 50 years ago. The dangerous ambiguity made him, as well as the political scientist and civil rights activist Jürgen Seifert (1928-2005), warn against the law. Bauer’s foreword to Seifert’s book Gefahr im Verzuge was published in 1968 in a slightly different form in the Stimme der Gemeinde . (1 )
In fact, the book could only be published because Bauer wrote the foreword. As a member of the Socialist German Student Union (SDS), the political scientist had been expelled from the SPD, which led to him being forced out of the trade union movement due to the division of the protest into a trade union and a student one. IG-Metall declared that it could only accept the book if he was not named as the author – a point of contention that was then settled by Bauer’s foreword.
The fight against the amendment to the Basic Law ended in defeat: it was passed on 30 May 1968 by the Grand Coalition with Chancellor Kiesinger at the helm. In the roll-call vote, 100 members of parliament and one member from Berlin voted against the amendment, which was adopted with 53 votes more than the required two-thirds majority. The emergency laws were, in Seifert’s words, an „authorisation law with a time fuse“. (2 ) Against the background of the history of National Socialism, this calls for particular vigilance. (3 )
The journalist and author Kurt Nelhiebel, who drew the caricatures in the text, recalled Fritz Bauer’s contribution and sent it to us – with his underlining in the voice of the community (editor’s note).
Is mistrust misplaced? Emergency legislation has friends and enemies. Professor Michael Freund is one such friend; he is an enthusiastic supporter of emergency legislation; he is one of the cynics in this country who are intoxicated by the very word power and for whom the endeavours of law and justice are a paper trifle. He writes under the heading „Strike and state of emergency“:
„Certainly it is useful to be able to arrest without much fuss… In the situation of a state of emergency, in all things what one can do is more important than what one may do….
Newspapers and leaflets and meetings can be banned by ordinary means. In the German Empire, social democratic meetings were banned because of the dilapidation of bridges that were presumably heavily used for the event. It was possible to take legal action against this; the judgement may then have found that all measures taken to break an uprising were unconstitutional. The coup d’état remains a failure. The court can determine afterwards who should still be alive. Even the Supreme Court has no power to undo death. The victors are rarely proved wrong. History is written by the victors and justice is dispensed by them. Once a state of emergency has been declared, it hardly matters whether people gather in public because of a fundamental right or whether they are not allowed to do so because of the emergency law. Only one question remains: will shots be fired? If the armed forces shoot into an assembly, nobody stops because the soldiers are not allowed to…
In the midst of a major economic crisis, a strike can be life-threatening for a state. The trade unions declare a strike legal if they themselves authorise the strike and the rules of labour law are observed. But a perfectly ‚legitimate‘ strike by miners can murder a state, a strike that lacks any anti-state intent. Emergency law becomes worthless if the perfectly legitimate struggle of interests continues during the state of emergency. The strike is the most dangerous state of emergency…“
Perhaps some people who sympathise with emergency legislation think: „God protect me from my friends; I’ll deal with my enemies myself.“ But it is good to learn what is meant in some places and what is also said and written without shame and without diplomatic tactics.
We also know a lot about the dreams of our bureaucracy. A small employee of the Federal Ministry of the Interior – it was still the time of Federal Interior Minister Schröder – secretly photographed drafts for emergency decrees, which the Federal Government was to be authorised to issue in case X by amending the Basic Law. According to press releases, a 94-paragraph ordinance on security measures was to allow, for example, a person to be taken „into police custody“ if, on the basis of their previous behaviour, they were strongly suspected of committing, promoting or instigating acts in the future that were punishable as high treason, endangering the state, treason or an offence against national defence. Key industry executives were to be dismissed under the same ordinance if there was reason to fear their lack of loyalty to the state or personal unreliability. Now, none of this sounds new; we know that the apple doesn’t fall far from the tree, and we know the time when such emergency ordinances were sown.
Nor can we completely ignore the recent history of the Federal Republic of Germany. The horror that a member of the Federal Government shoddily handled the truth and misled the people and the Bundestag, and that some other things happened that were only loosely connected to the law and the rule of law, is still fresh in our minds. Such traces are frightening, and no one should be surprised that democrats are becoming vigilant.
I believe that the amendment to the Basic Law should be postponed; it should not be undertaken in an atmosphere in which the government distrusts large sections of the people and large sections of the people distrust the government. The amendment of the Basic Law is by no means urgent. Certainly, drafts are available, but that is not a sufficient reason to force them. Bismarck claimed that a large number of superfluous laws were the result of the legal sins of youth. The scientific work of lawyers, he said, usually came to the conclusion that there was a gap in the law somewhere. The horror of the loophole haunts and accompanies the authors. Whether they were lucky or unlucky enough to be appointed to a ministry, they did not rest until they had used the favour of fate to sit at the source of legislation to realise their idea.
Immediately after the Basic Law came into force, some voices deeply regretted the parliamentary council’s well-considered renunciation of the right to issue emergency ordinances and the renunciation of the possibility of repealing our fundamental rights. „In these laborious clauses, all that remains of the full force of the exceptional powers of the Weimar Constitution is a dummy, a tinny armour in the dark perils that Germany must reckon with on its way,“ says Professor Dr Werner Weber in „Tensions and Forces in the West German Constitutional System“. In the meantime, fourteen years have passed; despite the Cassandra call, the „tin armour“ has lasted.
Conditions have also changed radically; one sometimes gets the impression that the clock has stood still in the Federal Ministry of the Interior.
Let’s start with the „state of internal danger“. Nobody will claim that we are threatened by a neo-Nazi or communist coup today. Anti-constitutional parties have disappeared from the scene and there are no serious signs of them re-emerging. There is nothing to suggest that they would find an echo in the population. The days of the Weimar Republic with its growing left-wing and right-wing radicalism are over. Fears that this could happen again may have had a certain justification at the beginning of the 1950s; today they would be completely unrealistic in view of the psychological and sociological changes in our society. Certainly, we do not know what a distant future holds in its bosom. But political revolutions do not come like a thief in the night. We have a Federal and State Office for the Protection of the Constitution; we have a penal code that catches opponents of democracy well in advance; we have courts that are authorised to ban anti-constitutional parties and organisations. Our executive is not lacking in power either. Should economic difficulties arise, we have sufficient economic policy instruments at our disposal to deal with a depression. We have learnt a lot since the days of the global economic crisis. Ultimately, there is no historical basis for mistrusting the German trade unions; given the consumer attitude of the broadest sections of the population in the present and future, the idea that one day all the wheels will come to a standstill is unrealistic, especially since the DGB’s guidelines for industrial action expressly provide for „emergency“ work in all vital companies, e.g. food production plants, power, gas or water supply companies, sewerage systems, public health services, transport companies, etc., and the refusal to take industrial action in these areas is not a matter of course, and the refusal of „emergency“ work is also branded by the DGB as gross damage to trade union interests.
With the so-called state of catastrophe, the draft is allegedly thinking „in particular“ of a natural disaster, but probably of a nuclear disaster quite independently of war and the threat of war. The Federal Minister of the Interior is reported to have once said that he wanted to use the amendment to the Basic Law to ensure that the next time Hamburg was flooded, the senator responsible could oblige curious onlookers to carry out emergency work from the spot. Of course, the otherwise much-vaunted market-compliant means, such as paying attractive wages, are likely to be more effective here. There is also a lot of talk about the danger of refugee movements, for example in the event of nuclear threats to cities. However, freedom of movement can already be restricted under the Basic Law; the permissible exceptions are, as has long been stated, „formally still fulfil the principle of the rule of law, but are objectively questionably elastic“. A further amendment to the Basic Law therefore seems rather superfluous.
What remains is the „state of external danger“, war and the threat of war. We certainly have no guarantee of eternal peace, but the Cold War, which has had a drastic impact on our recent history, is, if all is not mistaken, on the wane, especially after the Cuban events. This means that there is no longer any need to change the Basic Law by hook or by crook. Even enthusiasts of emergency regulations such as Michael Freund believe that the provisions of our Basic Law on the state of defence since 1956 have sufficiently regulated the case of an external state threat.
Some are of the opinion that a bad amendment to the Basic Law is still better than none at all, because otherwise there would be a danger that necessity knows no commandment. This argument is not convincing. The Federal Government’s latest draft also allows for extensive, sometimes almost unrestricted interpretation in every nook and cranny, so that the difference to a constitutional vacuum is not all that great. However, if it were possible to pull out the poisonous teeth of the draft, a renaissance of the idea of an extra-constitutional emergency law must be expected soon, given the basic attitude of German constitutional law and German state practice. Karl Schmitt, the stirrup-holder of the Nazi state of injustice, declared in his day that the notorious provision of Article 48 of the Weimar Constitution did not contain emergency state law simply because it was enshrined in the constitution. „State emergency law is based on the fact that, outside or contrary to constitutional provisions, in extreme, unforeseen circumstances, any state organ that has the power to act will take action to save the existence of the state and do what is necessary in the circumstances. It is conceivable that, in an extreme case, a state emergency law could be invoked independently in addition to the power under Article 48.“ There are more than enough voices of this kind today.
The Allied reservation of emergency state rights, which are to lapse in the event of German legislation, means that in an age of international interdependence and supranational organisations, hardly a pearl falls from our sovereignty. The Allied reservation also brings us advantages; it emphasises the community of the West and guarantees an Allied commitment.
The draft emergency constitution provides for virtually unlimited restrictions on a number of human rights which, according to the Basic Law, are „inviolable and the basis of every human community, of peace and justice in the world“. According to the usual view, human rights are neither created by the Basic Law, nor can they themselves be cancelled by a Basic Law. Does this mean that the emergency constitution envisaged by the Federal Government can have any legal validity at all?
Human rights are not guarded and cherished like a shrine in this country; for many, they are not the substance of the constitution, the be-all and end-all without which our state would cease to exist. The exceptions, restrictions and reservations tend to become the rule here, as authoritarian thinking is not dead and is constantly being fuelled by the growth of bureaucracy that characterises the present and the future. The – albeit initially only theoretical – possibilities of suspending fundamental rights can determine our thoughts and actions; they confirm the many, all too many, who harbour doubts about the inviolability of fundamental rights, are proud of their realism and believe in the ethos of reason of state. In self-defence against – real or perceived – malice and danger, even the honest mind does not remain true – to paraphrase Schiller. As long as we pay more than mere lip service to justice and freedom, and as long as there is no truly compelling need, the Federal Republic should refrain from stockpiling, squirrel-style, articles of the Basic Law whose dangerousness can hardly be disputed.