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(Second star to the right,/ and straight on 'til morning. You cannot miss it, it’s the island that doesn’t exist.)
It’s this song, sung by the Italian Cantautore Edoardo Bennato in reference to Peter Pans’ Neverland, that one seemed to be reminded of last monday in the Bundestag, as the plenum raised a motion for resolution of the “Grünen” and “Linken” concerning the NSA bugging affair to a non-existent committee. Since the Bundestag has waited for a new government for weeks as it is usually only waiting for Godot, the first working session of the newly founded parliament drew a disastrous picture, which bodes ill regarding the rights of the parliamentary minority under the grand coalition for the next four years to come.
The results of the new political reality came already out in the first debate against the background of rules of procedure: in an debate that lasted over 100 minutes the parliamentary groups of “Linke” and “Bündnis 90/ Die Grünen” were only allowed a speaking time of 25 minutes. In terms of figures the two groups were still overrepresented. Nevertheless, considering their position as future opposition on the one side and the explosiveness of the issue regarding the intended control of the government on the other side, a speaking time of a quarter dispended to governmental critical opinions compared to a three-quarter-majority dispended to opinions supporting the government seems somewhat dysfunctional.
However, the future grand coalition casted its dark shadows most auf all in the final vote. With a highly doubtable interpretation of par. 88 comma 2 GO BT (Rules of Procedure of the German Bundestag) supported by the Bundestag’s Vice-President Edelgard Bulmahn (SPD) who pointed to an according code of practice in the parliament, the plenum initially refused a final vote concerning the motions for resolutions. The political motivation behind this was probably to not force the Social Democrats, who had criticized the behavior of the former government regarding the NSA affair before the election, to vote in favor of the government before formally having signed the coalition agreement. In how far this procedure is compatible with the clear wording of the regulation, which only allows the referral of motions for resolution to a committee if the movers don’t object, remains unclear.
The whole absurdity of these proceedings though revealed itself subsequently, as such a referral was made not only against the movers’ will, but also to a committee, that hasn’t been established yet and therefore was legally non-existent. Far beyond the discussions regarding the interpretation of the parliamentary rules of procedure, this method basically endangers the democratic principles of the parliamentary protection of minorities. Just as the Federal Constitutional Court has correctly summarized – ironically also with regards to the control of the intelligence service – is the “rule to protect parliamentary minorities as well as the right of constitutional formation of an opposition […] rooted in democratic principle […]. This protection doesn’t aim to keep minorities from substantive decisions of the majority (Art. 42 Abs. 2 GG), but it does aim to enable minorities to state their point of view during the parliamentary decision-making-process.”
Part of this essential possibility to state one’s point of view in the decision-making process of the parliament is the engagement of the plenum, the vote on the issue in question and its negotiation in a transparent, predictable and minority protecting procedure. The referral to a presently non-existent committee doesn’t meet these requirements, even if it’s intended to set up such a committee in the future. The proceedings equal a referral into Nirvana – what might be of spiritual value but in the profane reality of opposition turns out to be sparsely illuminating. The majority’s freedom of scope can’t be used for justification: Admittedly the Bundestag doesn’t (yet) have to let himself be forced to set up the standing committees, but if he is unable to find common ground concerning this set up, he has to draw the consequences of making pressing decisions in the plenum. He cannot and he must not evade this responsibility.
This procedure aggravates the fear that the announcements made by CDU/CSU and SPD to protect the rights of the opposition in the upcoming legislative period with special diligence, could prove to be nothing but empty promises. In times in which the crisis of the representative democracy is more and more conjured up or maybe just described, this is highly explosive. The initiated quasi-concordance-democracy of the grand coalition must not overall end in a referral of the parliamentarianism to a constitutional Neverland.
Presumably this conflict will mainly be fought out in front of the Federal Constitutional Court during the next legislative period. Regarding the protection of minority rights this might somehow be appeasing from a constitutional law point of view. In terms of the role of a parliament within a democratic constitutional state it is certainly not.