Abstract
The German Basic Law can, in many respects, be read as an answer to the “conditions of the Weimar Republic” that were considered to have contributed to the National Socialist’s course towards totalitarianism. This is also the case as regards the eschewal or repression of the state of emergency during which the regular mechanisms guaranteeing the rule of law no longer fully function. The German 1949 Constitution that established an “actively defensive democracy” on the one hand consciously refrained from providing a state of emergency on the other hand. The 1968 constitutional amendment introducing provisions on the state of tension and the state of defence (Article 80a and Articles 115a–115 l) also consciously avoids taking recourse to the state of emergency. Lastly, neither did the Federal Constitutional Court (BVerfG) integrate the state of emergency into its jurisprudence. Whether in connection with the terrorism of the “Rote Armee Fraktion” (“RAF”) in the 1970s or in connection with the “war on terrorism” after 11 September 2001: The Federal Constitutional Court never developed a special doctrine—deficient with regard to the rule of law—for the review of public, particularly legislative, measures aimed at combating terrorist acts. On the contrary, it defended the rule of law in the light of these new threats from the state and civil society without compromise.
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Notes
- 1.
“Grundgesetz für die Bundesrepublik Deutschland” of 23 May 1949, Bundesgesetzblatt (BGBl. = federal official journal) 1949, p. 1.
- 2.
“Verfassung des Deutschen Reichs” of 11 August 1919, Reichsgesetzblatt (RGBl. = official journal of the Reich) 1919, p. 1383.
- 3.
RGBl. 1933 I, p. 141.
- 4.
Article 79 sec. 1 sentence. 1 BL: “This Basic Law may be amended only by a law expressly amending or supplementing its text.” (All translations of articles of the Basic Law are from Christian Tomuschat/David P. Currie in: Deutscher Bundestag (ed.), Basic Law for the Federal Republic of Germany, 2012.).
- 5.
Article 81 BL: “(1) If, in the circumstances described in Article 68, the Bundestag is not dissolved, the Federal President, at the request of the Federal Government and with the consent of the Bundesrat, may declare a state of legislative emergency with respect to a bill, if the Bundestag rejects the bill although the Federal Government has declared it to be urgent. The same shall apply if a bill has been rejected although the Federal Chancellor had combined it with a motion under Article 68. (2) If, after a state of legislative emergency has been declared, the Bundestag again rejects the bill or adopts it in a version the Federal Government declares unacceptable, the bill shall be deemed to have become law to the extent that it receives the consent of the Bundesrat. The same shall apply if the Bundestag does not pass the bill within four weeks after it is reintroduced. (3) During the term of office of a Federal Chancellor, any other bill rejected by the Bundestag may become law in accordance with paragraphs (1) and (2) of this Article within a period of six months after the first declaration of a state of legislative emergency. After the expiration of this period, no further declaration of a state of legislative emergency may be made during the term of office of the same Federal Chancellor. (4) This Basic Law may neither be amended nor abrogated nor suspended in whole or in part by a law enacted pursuant to paragraph (2) of this Article.”
- 6.
Article 91 BL: “(1) In order to avert an imminent danger to the existence or free democratic basic order of the Federation or of a Land, a Land may call upon police forces of other Länder, or upon personnel and facilities of other administrative authorities and of the Federal Border Police. (2) If the Land where such danger is imminent is not itself willing or able to combat the danger, the Federal Government may place the police in that Land and the police forces of other Länder under its own orders and deploy units of the Federal Border Police. Any such order shall be rescinded once the danger is removed, or at any time on the demand of the Bundesrat. If the danger extends beyond the territory of a single Land, the Federal Government, insofar as is necessary to combat such danger, may issue instructions to the Land governments; the first and second sentences of this paragraph shall not be affected by this provision.”
- 7.
Article 19 sec. 4 sentence. 1 BL: “Should any person’s rights be violated by public authority, he may have recourse to the courts.”
- 8.
Article 21 sec. 2 BL: Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.”
- 9.
Cf. “Gesetz zur Änderung des Grundgesetzes” of 19 March 1956, BGBl. 1956 I, p. 111.
- 10.
Article 115a sec. 1 BL: “Any determination that the federal territory is under attack by armed force or imminently threatened with such an attack (state of defence) shall be made by the Bundestag with the consent of the Bundesrat. Such determination shall be made on application of the Federal Government and shall require a two-thirds majority of the votes cast, which shall include at least a majority of the Members of the Bundestag.”
- 11.
Article 80a BL: “(1) If this Basic Law or a federal law regarding defence, including protection of the civilian population, provides that legal provisions may be applied only in accordance with this Article, their application, except when a state of defence has been declared, shall be permissible only after the Bundestag has determined that a state of tension exists or has specifically approved such application. The determination of a state of tension and specific approval in the cases mentioned in the first sentence of paragraph (5) and the second sentence of paragraph (6) of Article 12a shall require a two-thirds majority of the votes cast. (2) Any measures taken pursuant to legal provisions by virtue of paragraph (1) of this Article shall be rescinded whenever the Bundestag so demands. (3) Notwithstanding paragraph (1) of this Article, the application of such legal provisions shall also be permissible on the basis of and in accordance with a decision made by an international body within the framework of a treaty of alliance with the approval of the Federal Government. Any measures taken pursuant to this paragraph shall be rescinded whenever the Bundestag, by the vote of a majority of its Members, so demands.”
- 12.
Article 87a sec. 2 BL: “Apart from defence, the Armed Forces may be employed only to the extent expressly permitted by this Basic Law.”
- 13.
The famous right of resistance constituted by Article 20 s. 4 BL (“All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.”) has no practical relevance.
- 14.
Cf. Schmitt (2015), 21: “Die Ausnahme ist interessanter als der Normalfall. Das Normale beweist nichts, die Ausnahme beweist alles; sie bestätigt nicht nur die Regel, die Regel lebt überhaupt nur von der Ausnahme. In der Ausnahme durchbricht die Kraft des wirklichen Lebens die Kruste einer in der Wiederholung erstarrten Mechanik.” (ibid. 15: “The exception is more interesting than the rule. The rule proves nothing; the exception proves everything: It confirms not only its rule but also its existence, which derives only from the exception. In the exception, the power of real life breaks through the crust of a mechanism that has become torpid by repetition”.)
- 15.
“Gesetz zur Änderung des Einführungsgesetzes zum Gerichtsverfassungsgesetz” of 30 September 1977, BGBl. 1977 I, p. 1877.
- 16.
Article 13 sec. 3–6 BL: “(3) If particular facts justify the suspicion that any person has committed an especially serious crime specifically defined by a law, technical means of acoustical surveillance of any home in which the suspect is supposedly staying may be employed pursuant to judicial order for the purpose of prosecuting the offence, provided that alternative methods of investigating the matter would be disproportionately difficult or unproductive. The authorisation shall be for a limited time. The order shall be issued by a panel composed of three judges. When time is of the essence, it may also be issued by a single judge. (4) To avert acute dangers to public safety, especially dangers to life or to the public, technical means of surveillance of the home may be employed only pursuant to judicial order. When time is of the essence, such measures may also be ordered by other authorities designated by a law; a judicial decision shall subsequently be obtained without delay. (5) If technical means are contemplated solely for the protection of persons officially deployed in a home, the measure may be ordered by an authority designated by a law. The information thereby obtained may be otherwise used only for purposes of criminal prosecution or to avert danger and only if the legality of the measure has been previously determined by a judge; when time is of the essence, a judicial decision shall subsequently be obtained without delay. (6) The Federal Government shall report to the Bundestag annually as to the employment of technical means pursuant to paragraph (3) and, within the jurisdiction of the Federation, pursuant to paragraph (4) and, insofar as judicial approval is required, pursuant to paragraph (5) of this Article. A panel elected by the Bundestag shall exercise parliamentary oversight on the basis of this report. A comparable parliamentary oversight shall be afforded by the Länder.”
- 17.
See Jestaedt et al. (2011).
- 18.
Cf. BVerfGE (= Collected decisions of the Federal Constitutional Court) 109 (= volume), 279 (310–325, notably 318–324) (= pages) [2004].
- 19.
Cf. BVerfGE 120, 274 (274 [Leitsatz 1], 302 et passim) [2008].
- 20.
2003: BVerfGE 107, 299–339. –(2004): BVerfGE 109, 279–391; 110, 33–76. –(2005): BVerfGE 112, 304–321; 113, 348–392. –(2006): BVerfGE 115, 118–166; 115, 320–381. –(2007): BVerfGE 118, 168–211. –(2008): BVerfGE 120, 274–350; 120, 378–433. –(2010): BVerfGE 125, 260–385. –(2011): BVerfGE 129, 208–268; 130, 1–51. –(2012): BVerfGE 130, 151–212; 132, 1–39. –(2013): BVerfGE 133, 241–272; 133, 277–377. –(2015): BVerfGE 139, 245–285; 140, 160–211. –(2016): BVerfG, judgment of 20 April 2016, 1 BvR 966/09 et 1 BvR 1140/09 (= file reference), available at http://www.bverfg.de/e/rs20160420_1bvr096609.html.
- 21.
Cf. BVerfGE 107, 299–339 [2003].
- 22.
Cf. BVerfGE 110, 33–76 [2004].
- 23.
Cf. BVerfGE 112, 304–321 [2005].
- 24.
Cf. BVerfGE 115, 320–381 [2006].
- 25.
Cf. BVerfGE 115, 118–166 [2006].
- 26.
Cf. BVerfGE 118, 168–211 [2007].
- 27.
Cf. BVerfGE 120, 274–350 [2008].
- 28.
Cf. BVerfGE 120, 378–433 [2008].
- 29.
Cf. BVerfGE 125, 260–385 [2010]; 130, 151–212 [2012].
- 30.
Cf. BVerfGE 133, 277–377 [2013].
- 31.
Cf. BVerfG, judgment of 20 April 2016, 1 BvR 966/09 et 1 BvR 1140/09, http://www.bverfg.de/e/rs20160420_1bvr096609.html.
- 32.
Cf. BVerfG, judgment of 20 April 2016, 1 BvR 966/09 et 1 BvR 1140/09, available http://www.bverfg.de/e/rs20160420_1bvr096609.html, §§ 93–97, 98–102, 103–144, 145–354.
- 33.
Paradigmatically: BVerfG, judgment 20 April 2016, 1 BvR 966/09 et 1 BvR 1140/09, available at http://www.bverfg.de/e/rs20160420_1bvr096609.html, §§ 90 et seq.
- 34.
Cf. BVerfGE 125, 260–385 [2010]; 130, 151–212 [2012]; BVerfG (Third Chamber of the First Senate), judgment of 8 June 2016, 1 BvQ 42/15, available at http://www.bverfg.de/e/qk20160608_1bvq004215.html; judgment of 8 June 2016, 1 BvR 229/16, available at http://www.bverfg.de/e/rk20160608_1bvr022916.html.
References
Jestaedt M et al (2011) Das entgrenzte Gericht—Eine kritische Bilanz nach sechzig Jahren Bundesverfassungsgericht. Suhrkamp
Schmitt C (2015) Politische Theologie: Vier Kapitel zur Lehre von der Souveränität. Duncker & Humblot
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Jestaedt, M. (2018). The German Reticence Vis-à-Vis the State of Emergency. In: Auriel, P., Beaud, O., Wellman, C. (eds) The Rule of Crisis. Ius Gentium: Comparative Perspectives on Law and Justice, vol 64. Springer, Cham. https://doi.org/10.1007/978-3-319-74473-5_12
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