Why do governments violate the Constitution?

Did Chancellor Angela Merkel violate the Basic Law and the Thuringian Constitution when she demanded that the result of the election for Prime Minister be reversed? The page N23.TV claims this in the headline of an article dated February 17 - and thus presents it as a fact that Merkel acted unconstitutionally. According to the Crowdtangle analysis tool, the article was shared more than 2,400 times on Facebook.

The question of whether she has violated the Basic Law would have to be clarified by the Federal Constitutional Court. Several legal scholars tell us, however, that they are of the opinion that there has been no violation and that Merkel is not bound by the Thuringian constitution.

Background: In Thuringia, the FDP candidate Thomas Kemmerich was elected Prime Minister with the votes of the AfD in the state parliament. According to Angela Merkel, this broke with a basic conviction of the CDU: that no majorities should be won with the help of the AfD. Since the outcome of the election was foreseeable, the process was "unforgivable". Merkel demanded that "the result must be reversed". The CDU should not participate in a government under Kemmerich. A little later Kemmerich announced his resignation.

Violation of the Basic Law and the Thuringian Constitution?

The statement that Merkel's demand was unconstitutional is the opinion of constitutional lawyer Karl Albrecht Schachtschneider, which he gave in an interview with the Compact magazineexpressed. Schachtschneider sits on the board of trustees of the AfD-affiliated Desiderius Erasmus Foundation.

When asked whether Angela Merkel should have made such a demand, he said: "This statement violates the Basic Law and the Thuringian Constitution - namely, the democratic principle, the federal principle and also the rule of law." Merkel said Thomas Kemmerich could not formally withdraw, "but your statement had a political effect".

CORRECTIV asked two legal scholars for an assessment. You disagree with the manhole cutter.

Merkel cannot violate Thuringia's constitution because she is not bound by it

Professor Christoph Schönberger from the University of Konstanz wrote to us by e-mail: “With this statement, Angela Merkel has not violated either the Basic Law or the Thuringian constitution. As a party politician of the CDU, she was allowed to make this statement. Your role as Federal Chancellor is not relevant to every statement you make. The Federal Constitutional Court made this clear for members of the Federal Government in its so-called Schwesig decision. ”The Chancellor is also not bound by the Thuringian constitution.

Walther Michl from the Law Faculty of the Ludwig Maximilians University in Munich also tells us: It is “absurd” that Angela Merkel violates the Thuringian Constitution because she is not bound by it.

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Are members of the federal government allowed to intervene in political competition?

The "Schwesig decision", to which Schönberger refers, is a judgment from 2014. The Federal Constitutional Court rejected a complaint by the NPD against the Federal Minister for Family Affairs, Manuela Schwesig (SPD). In an interview she warned against the NPD and, in the opinion of the NPD, violated the neutrality requirement of state organs. The constitutional court ruled, however, that Schwesig had spoken in this case as deputy chairwoman of the SPD and not as federal minister. “State organs are denied official functions to support parties or to fight them. If, however, they did not act in an official capacity, they were free, like any other citizen, to actively participate in the election campaign and to express their opinion freely. "

In another case, however, the Constitutional Court decided differently: In 2015, the then Federal Education Minister Johanna Wanka (CDU) had to remove a press release about the AfD (“Red Card for the AfD”) from her website. In 2018, the court ruled that she had violated the AfD's right to equal opportunities in competition between political parties. In the judgment it says: “The right of political parties to participate equally in the process of forming the opinion and will of the people is violated if state organs as such intervene in the election campaign in favor or to the detriment of a political party or of candidates. [...] This applies not only to election campaigns, but also to political opinion-fighting and competition in general. "

So it depends on the individual case. Members of the federal government are not allowed to use the specific resources of their government office to fight for political opinion. Johanna Wanka had published the press release on the website of her ministry, which was not permitted according to the constitutional court.

Scientist: Chancellor doesn't have to be completely neutral

Walther Michl also says that when asked whether Angela Merkel violated the Basic Law, it must be clarified whether she expressed herself as a party politician or as Federal Chancellor. In the first case, your statement is completely unproblematic. "If she has acted as Chancellor, the question is whether she must then behave neutrally towards political events in the countries and the role of the parties."

Michl refers to an article by Christoph Möllers, Professor of Public Law at Humboldt University Berlin, from February 11 on the Constitution blog. He wrote: “Nevertheless, the idea that the federal government is subject to a requirement of neutrality remains irritating. Because as a democratic organ it cannot help but express itself politically - and not only when its members also hold a party office. "

Walther Michl says that he considers the choice of words "undone" to be "unhappy". But he agrees with Möller's opinion: "If the federal principle should mean that Ms. Merkel is not allowed to speak about elections in the Thuringian state parliament, then conversely no prime minister is allowed to speak at a press conference of the state government about politically controversial events at the federal level. According to previous practice in the Federal Republic of Germany, this is an unrealistic idea. "