The Drama of Democracy

I am looking forward to the coming week with a sense of excitement. There are several reasons for this: Firstly, on Friday, my new play Ein Volksbürger will premiere, starring Fabian Hinrichs in the lead role and directed by Nicola Hümpel of Nico and the Navigators. As with Ein Volkskanzler, it explores a scenario: Suppose someone came along and, with a newly founded movement, amidst the ruins of the existing political party system, win a state election. Suppose this new Minister-President, determined to be true to himself and to hold up a mirror to the people, disregards norms and conventions. Suppose he pushes the conflict with the Federal Government – assuming it even chooses conflict over appeasement and “dialogue” – to its absolute limit. What then? The drama will be shown from Friday in four performances, plus a live stream at the Babylon Cinema at Rosa-Luxemburg-Platz in Berlin and the Badisches Staatstheater in Karlsruhe, and a broadcast on ARTE.

A play of a very different, but perhaps not so dissimilar, kind will be staged the day before in Erfurt: The newly elected state parliament will convene on Thursday, with the AfD, as the largest group, entitled under parliamentary rules to nominate the new Speaker of Parliament, and one of their own, a fellow named Jürgen Treutler, in the role of the senior Member and temporary chairman of the inaugural session (Alterspräsident).

It’s a well-known fact by now that this inaugural session is likely to take, quite literally,  a dramatic turn. This was one of the outcomes of our Thuringia project. That’s why we recommended amending the rules of procedure early on, to limit the potential for abuse by the Alterspräsident during the election of the new Speaker. If the AfD’s nominee does not secure a majority, the Alterspräsident decides how to proceed. He could take the stance that the AfD is entitled to nominate candidates until either they or, more likely, their opponents run out of steam. While legally incorrect, he could still do it. Again and again, round after round, the opponents would have to close ranks, across all political differences, to vote down the AfD’s candidates. For authoritarian-populist strategists, it’s a dream scenario.

As mentioned, everyone involved has long been aware that this could happen and that it would be highly dangerous if it does. The Greens, in the previous legislative period, had proposed that, in the future, the first session should be chaired not by the oldest Member in terms of age, but by the Member with the longest parliamentary service, as in the Bundestag. This would prevent the AfD from securing that post by nominating particularly elderly candidates for constituency or list seats. Furthermore, it was suggested that, in future, the right to propose a candidate for Speaker should no longer be limited to the largest faction after the first or second ballot, or even from the outset.

The fact that these procedural changes were not implemented is largely due to Mario Voigt, the likely designated Thuringian Minister-President, and his CDU. They probably still hoped at the time to become the largest parliamentary group themselves, not to mention their general reluctance to do anything, let alone preventive measures against the AfD, jointly with the Red-Red-Green coalition. The only thing they were willing to support was a committee resolution clarifying the interpretation of the nomination right – but this resolution is neither binding on the new parliament nor on the Alterspräsident.

It seems that the CDU has only now, days before the inaugural session, realised the need to act. Together with the BSW, they have tabled an amendment to the rules of procedure to be voted on before the election of the new Speaker. According to their proposal, the right to propose a candidate should no longer rest with the largest group, but the Speaker should be elected “from the middle of the parliament” (as per Article 57, paragraph 1 of the Thuringian state constitution). To facilitate this, they persuaded Birgit Pommer, the acting Speaker from the Left Party, to change the agenda at the last minute. This raises a host of tricky legal questions, which, in my view, can be reasonably answered. Nevertheless, by doing this, the CDU and BSW are handing the AfD a whole new lot of opportunities to engage in obstruction and publicly display their contempt for parliament and democracy on the parliamentary stage.

The AfD plans to nominate MP Wiebke Muhsal for the position of parliamentary president. Muhsal is a close ally of Björn Höcke and has been convicted of fraud for backdating the employment contract of an assistant to claim more money from the parliamentary administration. The AfD could hardly present a less electable candidate. This leaves little doubt about their intentions, which are clearly not aimed at an orderly session. As mentioned, the session will be chaired by one of their own – the meticulously instructed Senior Member, Jürgen Treutler.

He will declare the parliament open, appoint temporary clerks, call the roll of MPs, and confirm the quorum. Then, before item 5, the election of the new Speaker, item 4 comes up: the amendment of the rules of procedure as proposed by the CDU and BSW. He would need to put this to a vote. What if he refuses?

He could argue that, until a Speaker is elected, the new parliament is not properly constituted. And he would be right. Without a Speaker to confirm its decisions and sign them into law, the parliament cannot begin its legislative work. So, he might say, no votes can be held until a Speaker is elected. This, however, would be incorrect: the rules of procedure are purely internal matter and not a statute. Once the new parliament has convened and is quorate, it can vote on its rules of procedure, with or without a Speaker. This is its inherent right to self-organise.

(A brief digression for enthusiasts: In Thuringia, the situation is further complicated by the fact that each new parliament does not adopt the old rules of procedure as its own, but the continuation of the old rules is mandated by statutory law until new ones are adopted. One could argue that the parliament is legally bound to decide on its rules of procedure only after its formal constitution. However, this could be seen as a violation of the new parliament’s autonomy. How can the old parliament impose such a bond on the new one by law? But if that were indeed unconstitutional – what would follow? Is the law binding until struck down by the constitutional court? Can it bind anyone at all? If not, what is the purpose of this law in the first place? Discuss!)

So, assuming the Alterspräsident wrongly insists that the parliament cannot vote on the rules of procedure without electing a Speaker first, what happens then? The applicants could try to challenge this decision in court. If they can is not a trivial question. But assuming they can, what then? The state constitutional court could issue an injunction, possibly within hours. But someone would need to suspend the session in the meantime. Who? The Alterspräsident. If he refuses and stubbornly continues with the agenda, what then? The MPs could leave the chamber, rendering the parliament inquorate. But who would declare it so? Again, the Alterspräsident.

Thus, the AfD can – and I predict: will – turn this inaugural session of the new Thuringian parliament into a spectacle of the ugliest kind, conveying once again the message they’ve always wanted to deliver: democracy is nonsense, corrupt, and broken, unless and until the “true people” constantly sees its own reflection in it. This is the ghastly theatre the AfD plans to stage over the next five years. Opening this Thursday.

Thanks to Juliana Talg, Friedrich Zillessen, Jannik Jaschinski, Anna-Mira Brandau, Jelena von Achenbach and others for valuable input!

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Following three years of comprehensive research and worldwide consultations carried out against a worrying backdrop of judicial capture and polarisation in many countries, the Institute for Integrated Transitions (IFIT) has just published the Constitution Hill Global Guidelines on Apex Court Appointments (in English, Arabic, French, Spanish, Portuguese).

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Editor’s Pick

by EVA MARIA BREDLER

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The Week on Verfassungsblog

… summarised by EVA MARIA BREDLER

The Solingen attack continues to shape Germany’s domestic and legal policies. Security is the top priority, so new packages are quickly being assembled that promise just that. The government vows to “improve internal security and the asylum system” as well as “to combat terrorism.” But what’s really inside those packages?

CLEMENS ARZT (GER) has unpacked the security package and is not impressed. The legislative drafts lack rational and evidence-based responses to the real threats posed by Islamism or “knife violence”.

The package also includes a rather hidden change to the Federal Police Act (BPolG). JOHANNES SIEGEL (GER) sheds light on this hastily written law, criticizing the provision in the new section 22(1b) BPolG, which allows officers to question, check IDs, or search any person in a certain area. He warns that this will likely lead to racial discrimination.

Despite the criticism, since Monday, the federal police have resumed controls at all German borders. While the government justifies the measure with the fight against irregular migration and Islamism, European neighbours fear a domino effect and the erosion of the European ideal. Legally, the controls are also more than questionable. JANNIK LUHM (GER) examined the government’s reasoning and believes the border controls to likely be illegal from an EU law perspective.

Regarding border controls and rejections, FRANZ C. MAYER (EN) noted last week that much of the debate is proceeding in legal ambiguity under European law. This week, he has published an expanded version of his observations in English.

Incidentally, it is not the first time that “Solingen” leads to tightening asylum law. KATRIN HÖFFLER (GER) reminds us of 1993, when a far-right arson attack killed five people. Both in 1993 and 2024, the public debate following “Solingen” was dominated by fear: terms like “asylum flood” (1993) and “uncontrolled migration” (2024) fuelled prejudice and justified stricter asylum laws. Höffler warns that such shifts in discourse and legal reactions could spark further violence.

Violence continues in the Middle East, with new, insidious tactics: Hezbollah pagers and radios have exploded in Lebanon. The legal implications and technical aspects of the attack are being widely discussed. ITAMAR MANN (EN) takes the exploding pagers to reflect on how Israel’s self-image intertwines with high-tech warfare and shows that sophisticated technology doesn’t necessarily correlate with moral superiority or humane warfare.

Internationally, the response to the Israel-Gaza conflict hasn’t stopped at the ICC’s arrest warrants for members of the Israeli government and Hamas. The International Court of Justice (ICJ) has also rendered an advisory opinion. FLORIAN JEẞBERGER and KALIKA MEHTA (EN) show how the ICJ’s findings could interact with the ICC’s work and influence international criminal law.

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Unfortunately, the threat of authoritarian populism is not just a constant issue in Poland, Hungary, and Germany, but it is spreading worldwide. Largely unnoticed, the Mexican government planned a judicial overhaul that many Mexican jurists see as a full-scale attack on the independence of Mexico’s judiciary. The newly approved reform includes direct elections of federal judges. MARIANNA VELASCO-RIVERA, IRENE PARRO PRIETO, JAIME OLAIZ-GONZALEZ, and TOM GERALD DALY (EN) explain how this overhaul threatens Mexican democracy. In an open letter, constitutional lawyers express their deep concern and solidarity.

Then there’s the irony of the “Patriots for Europe”, who seem to want the exact opposite of what their name suggests. After the recent European Parliament elections, this party has risen to become the third-largest political force. JAAP HOEKSMA (EN) analyses their political agenda, revealing their goal of reversing the progressive course of European (legal) integration – patriots against Europe indeed.

Another misleading label: “Soft Law” might sound non-binding, and technically it is. But the Jemerak case, decided by the CJEU on September 5, 2024, highlights its growing influence. SERHII LASHYN (EN) examines the case and calls for caution when dealing with soft law, as it is gaining more clout.

In K,L v. Staatssecretaris van Justitie en Veiligheid, the CJEU made a significant move toward gender-sensitive EU asylum law by recognizing belief in gender equality as a ground for persecution. SABINE MAIR (EN) argues, however, that the decision also perpetuates long-standing critiques of the liberal feminist paradigm.

From a feminist perspective, HANNA WELTE (GER) also finds the German homicide statute problematic. When a woman is killed by her (ex)-partner, the media often reports it as a “domestic incident” instead of a femicide. Welte explains why this downplays the crime. She calls for a specific legal characteristic to track gender-based killings. This would not only ensure better prosecution of these crimes but also raise societal awareness of them.

Enforcing rights of nature likewise poses challenges. These rights are increasingly being recognized, most recently by the Landgericht Erfurt. But for nature to assert its rights, it must be represented, which is no easy task. Using Austria’s Umweltanwaltschaften as an example, MELANIE MAURER (EN) explains why institutionalized representation is far from perfect but still a good start.

Budget law is considered the crown jewel of parliamentary power. It’s one of the most important tools the German Bundestag has to steer and control the government. But doubts surround the constitutionality of the current draft for the 2025 federal budget. TILL VALENTIN MEICKMANN and NIKLAS FREUND (GER) argue that the broad global appropriations in the draft might violate the principles of clarity and truth in budgeting.

And finally, our symposium “Das Jurastudium in der Kritik” has come to a close, with contributions on state exams, antifascist and critical perspectives, and the Lüneburg model. Anyone looking to vent about legal education will find plenty of reasons here – but also hope and ideas for how it could be done differently.

That’s all for this week!

Take care and all the best,

the Verfassungsblog Team

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