14 Januar 2022

Confidence and Caution

First of all: a happy new year! The old one can finally be filed away, to the relief of most, I suppose, the ceaseless lamentations about how much it sucked included, and we can turn joyfully to the future, to the year 2022, twenty-three twenty-fourths of which lie before us, blank and neat like an empty page. In April, hopefully, Viktor Orbán will be voted out of office. In October, Jair Bolsonaro. Boris Johnson’s PM days seem finally numbered now, too. And let’s keep in mind that 2021, as gloomy as much of it felt, already has been the final year of the reign of Benjamin Netanyahu, Sebastian Kurz, Andrej Babiš and Boyko Borisov, so you might even feel tempted to cautiously start flirting with the idea that perhaps we have already put the peak of authoritarian populism behind us.

What I find interesting is how all-party alliances like the one in Hungary are emerging as a kind of model for effectively removing authoritarian populist rulers from power. The example of Israel seems to indicate that such alliances are apparently not only good for winning elections, but also not too bad for governing after all. This seems counterintuitive at first, given the enormous internal diversity that such alliances from the far left to the far right have to straddle. But, with a view to the constellation of conflicts that gave rise to these alliances, there’s a certain logic to it: The diversity that is represented in these alliances is what makes them a counter-model to the populist self-identification with the „people“ in the first place. That is precisely the conflict that is being fought out at the ballot box now: populism v. pluralism. Only after this conflict is decided in favour of pluralism does an ordinary left-wing/right-wing democratic struggle for majorities become possible again.

Another test case for this model could be Turkey, where at the moment there seems to be much to suggest that in the elections in June 2023 the united opposition might be able to drive President Erdogan and his AKP party from power. If this happens, then the question will arise, as it did in Hungary: How can the constitutional damage caused by authoritarian populist rule be repaired without exposing oneself to the accusation of damaging the constitution oneself?

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Stellenausschreibung Wissenschaftliche Mitarbeit

An der Professur für öffentliches Recht (Lehrstuhl Prof. Dr. Pascale Cancik) ist die Stelle einer/eines wissenschaftlichen Mitarbeiter*in zu besetzen. Wir suchen jemanden, der interessiert ist an Themen wie: Demokratie und Parlament, Rechtsgeschichte und Recht als Praxis, das Verhältnis von Verwaltung und Gesellschaft oder den Veränderungen aufgrund der sog. Digitalisierung. Wenn zudem noch Freude an Lehre und Forschung mitgebracht wird, freuen wir uns auf eine Bewerbung bis zum 25. Januar 2022.

Nähere Informationen gibt es hier.

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In December, we put this question at the centre of what I think was a tremendously fruitful blog symposium on „Restoring Constitutionalism„, which has ended this week. As mentioned, in April there will be elections in Hungary, and according to the polls, a defeat of Fidesz seems to be in the cards. We said we’d give a confident outlook to 2022, haven’t we? So I guess I’ll mention Daniel Hegedüs‘ dark and unfortunately not unjustified warning of a rigged election only in passing here. Assuming the transfer of power succeeds: how can the new non-Fidesz government then free itself from the iron cage in which the Fidesz constitution imprisons it?

We have collected a wealth of material on this. Among the many fascinating texts in this blog symposium, I found these three particularly impressive:

ROBERTO GARGARELLA argues, against the backdrop of current constitution-making in Chile, that beyond all legal niceties, it does make a difference for the validity of a constitution how inclusive the process was in which it came into being. The Chilean constitution of 1980 was created under conditions of military dictatorship, in a process designed to exclude political opponents and to narrow their scope in case they came to power. The referendum that put it into effect does nothing to mend this flaw – on the contrary, for Gargarella, constitutional referendums are a kind of extortion move which forces the people, in order to get the parts they like, to agree to the parts they may deeply disagree with. But the argument cuts both ways as far as Hungary is concerned: The Orbán constitution is not a valid constitution simply because it has been put into effect. But neither is the one that the new government might enact to replace it.

DMITRY KURNOSOV, on the other hand, cites an example of failed constitution-making „with a bulldozer“, namely in Russia in 1993. The then president Boris Yeltsin pushed through his ideas on how post-Soviet Russian democracy should be structured against the resistance of parliament and the constitutional court, thus creating the very state that Vladimir Putin governs today.

KIM SCHEPPELE has some concrete advice for the new Hungarian government-to-be: European law is the key with which you can unlock the constitutional prison built by Orbán. The Orbán constitution is methodically designed to subject everything that is important to Orbán to a two-thirds majority, which remains out of reach for the new government. But Hungary, as a member of the ECHR and the EU, is subject to legal obligations that have so far been in many respect opposed to what the Hungarian government wants – but in future might be aligned to it. Under Hungarian law, international treaties take precedence over national laws. The new government can use this to roll up the Orbán constitution from behind, so to speak. Regardless of the Orbán constitution, there is effective constitutional law in Hungary: the European one.

Open Call: the Auftrag of the Bundesbeauftragten

According to information from the Federal Ministry of the Interior, there were 39 federal, special and personal commissioners and coordinators in the German federal government in August 2021, the vast majority of whom most Germans probably have never heard of. The list ranges from the Commissioner for Drugs and the Commissioner for Migration, Refugees and Integration to the Coordinator for the Maritime Economy and the Chancellor’s personal Africa Commissioner. The legal bases of these Bundesbeauftragten are just as diverse as the scope of their tasks. It is difficult to define in a concise manner what their Auftrag consists of, for what, with what budget and with what influence. There is, it seems, no need for that either: They may act on behalf of the government, but they do not govern. They coordinate, act as contact persons, write reports and organise conferences, but they do not make collectively binding decisions, do not manage large budgets, do not execute laws and do not interfere with anyone’s fundamental rights.

Can these commissioners thus be treated as a constitutional nullity? This seems increasingly doubtful. The need to survey the position and scope of action of government commissioners on the map of constitutional law was demonstrated by the recent discussions on the „Federal Government Commissioner for Jewish Life and the Fight against Anti-Semitism“. The office goes back to the cross-factional resolution of the German Bundestag entitled „Resolutely combating anti-Semitism“ of 17 January 2018. This resolution, which defines the understanding of the office by its current holder Felix Klein, does not have a law-making quality, but certainly an eminently political one. Klein himself described the accusation of anti-Semitism as a „sharp sword“ in public discourse and at the same time became the subject of fierce criticism himself, e.g. in the debates surrounding the post-colonialism theorist Achille Mbembe and the „Initiative GG 5.3 Weltoffenheit„.

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Call for Applications for fellowships on international politics announced

The Academy of International Affairs NRW invites applications for fellowships at its seat in Bonn. The programme is aimed at highly qualified researchers worldwide and at experts from politics, business and civil society. The focus of the call for applications is the topic “Artificial Intelligence”. Applications on other topics in international politics are also welcome.

The applications must be submitted by 14 February 2022. For further information click here.

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How do verdicts of a government commissioner relate to the freedom of opinion, press, broadcasting, science and art of those who are marked and criticized – on behalf of the federal government? – as propagators, supporters or sympathisers of anti-Semitism? Where are the constitutional limits of an office that nominally limits itself to raising awareness in society, public relations work, political and cultural education and participation in discourse, but precisely through this threatens to blur the distinction between those entitled and those bound by fundamental rights?

There are further questions: To which degree does the Federal Minister of the Interior, nominally the current superior of the anti-Semitism commissioner, bear responsibility for his doings – and with what consequences? The new „traffic light“ coalition has agreed to „structurally strengthen“ the office of the anti-Semitism commissioner (coalition agreement, paragraph 3995) and to appoint also an anti-racism commissioner and an anti-ziganism commissioner. What if conflicts of objectives arise? What if – say, in another Mbembe case – two commissioners of the same federal government take positions at diametrically opposed ends of the spectrum? Who then decides what the official government position is, in what procedure and with what impact on the public debate? The Federal Chancellor perhaps?

In view of their explosive nature and implications, these questions do not seem to us to be sufficiently thought through and discussed in the political public sphere or in legal scholarship. With a blog symposium, we want to make a contribution to launching this debate and helping to clarify positions and options.

Researchers from law and political science who would like to contribute to this discussion are invited to send their contribution in the form of a blog post (maximum 2500 words) to Verfassungsblog (symposium@verfassungsblog.de) by 1 March 2022.

The last weeks on Verfassungsblog

What has happened on Verfassungsblog since my last editorial? A lot. It’s been four weeks. I can’t recapitulate it all, so here’s a selection:

The völkisch ex-AfD MP Jens Maier is no longer in the Bundestag and wants to return to the Saxon judiciary, where he had previously been a judge (see e.g. here), and the Saxon Ministry of Justice sees no basis to deny him that. ANDREAS FISCHER-LESCANO disagrees (which made headlines in the press, here and $ here).

In Romania, just before Christmas, the Constitutional Court issued a press release declaring that it would not accept EU law primacy. BIANCA SELEJAN GUTAN explains the background, while BOGDAN IANCU warns against jumping to conclusions.

That the UK is ruled by a sociopathic clown should come as a surprise to no-one in 2022. Bring-your-own-booze parties in 10 Downing Street while sending the rest of the country into lockdown: is this now the moment when cognitive dissonance in Telegraph Tory England becomes finally impossible to endure? We’ll see. In the meantime, Johnson’s government is laying the basis for dismantling freedom of assembly and potentially depriving millions of immigrant Britons of their citizenship, which RICHARD MARTIN and MELANIE GRIFFITHS respectively denounce in duly drastic manner.

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20.01.2022 | 19:00-20:30 | via Zoom
Heidelberger Salon digital: „The Role of Law in the Age of Environmental Crises“

A discussion with Guillaume Futhazar (MPIL), Dana Schmalz (MPIL/University of Jena), Tom Sparks (MPIL), Saskia Stucki (MPIL), Pedro A. Villareal (MPIL) and distinguished guests Jutta Brunnée (University of Toronto) and Andreas Paulus (Göttingen University/German Federal Constitutional Court).

The registration link and further information can be found here.

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The new Federal Minister of Justice of Germany has announced that he wants the gruesome „Law for the Establishment of Material Justice“, drafted last year by his predecessor, to be reconsidered in Parliament, after Federal President Steinmeier raised serious constitutional concerns. The previous „Grand Coalition“ government had decided that the principle of ne bis in idem should no longer apply to acquitted murderers in future, if new methods of proof such as DNA analysis now make their conviction possible. HELMUT AUST explains why the legislator should repair this damage to the rule of law as soon as possible, before the Federal Constitutional Court has to do so.

During the COVID pandemic, few fundamental rights have suffered as much as freedom of assembly in Germany. CLEMENS ARZT has analysed the administrative courts‘ case law on this and comes to a harsh conclusion: „To describe difficult legal issues as difficult for two years and therefore not to clarify them is unacceptable in a constitutional state. Especially in times of substantial uncertainty and social crises, it is important that the principles of freedom of assembly under Article 8 of the Basic Law are protected by the judiciary, so that liberties are not damaged when they are most urgently needed in the executive urge to supposedly solve problems.“

Shortly before New Year’s Eve, the Federal Constitutional Court ruled that the protection of persons with disabilities in a triage situation must be regulated by parliamentary law. HANS GEORG DEDERER explains what the decision is all about. STEFAN HUSTER is taken aback by the poor reasoning behind it, and ROMAN LEHNER concludes that it will do little to protect people with disabilities. MATHIAS HONG analyses the impact of the decision on anti-discrimination law.

So much for this week. All the best to you, please don’t forget to support us on Steady, stay safe and see you next week,

Max Steinbeis


SUGGESTED CITATION  Steinbeis, Maximilian: Confidence and Caution, VerfBlog, 2022/1/14, https://verfassungsblog.de/confidence-and-caution/, DOI: 10.17176/20220115-105936-0.

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