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Brief description of the contents of the act
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Thomas Kemmerich, member of the liberal democratic party (FDP), has unexpectedly been elected Prime Minister of the Free State of Thuringia by the members of the state parliament in February 2020. His election was strongly criticized by the public, as he could only be elected with the votes of the members of the (in parts extreme) right-wing party (AfD). Then Chancellor Angela Merkel commented on this in an interview, as follows: the process was “unforgivable“ and it was “a bad day for democracy”. The election must be “reversed”. The BVerfG now ruled (by a vote of five to three) that the Chancellor had by this statement, violated the right to equal opportunities of parties under Article 21 (1) in conjunction with Article 3 of the Basic Law.
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Comment
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The decision is in line with the BVerfG's case law on other statements made by politicians regarding right-wing parties. In 2014 for instance, the Federal President at the time, Joachim Gauck, called NPD (national democratic party) supporters "nutcases", while in 2020 Interior Minister Horst Seehofer uploaded an interview on the website of the Ministry of the Interior, in which he commented negatively on the AfD. In all cases, a violation of the right to equal opportunity of parties was established, because an infringement of this right must be justified under constitutional law. Such justification cannot be based on the fundamental right of freedom of opinion, because fundamental rights are defensive rights of the citizen against the state and are not available to state organs unless they are acting as private individuals in the given case. Such a differentiation between private individuals and state organs is sensible, since otherwise state authority could withdraw its protection against citizen on the basis of its own fundamental rights being affected. However, a justification for state organs could very well arise from other constitutional regulations that assign competences to the latter. For the federal chancellor, for example, this is the preservation of the Government’s stability and the reputation of the Federal Republic within the community of states. But neither Germany’s stability on a federal level nor the ability to act in foreign policy are impaired by this national scandal, meaning that the infringement of equal treatment of parties cannot be justified. It may seem unsatisfactory that the most powerful organ of Germany – the chancellor – is not allowed to comment on daily political events if thereby other parties’ political participation is restricted. But it is necessary to expect greater neutrality from members of the government when they have access to resources, unavailable to other members of parliament. That is the only way the democratic formation of will from the bottom up can be guaranteed and fairness in the public expression of opinions can be assured. It is undoubtedly not always obvious to the public whether a politician is acting as a private citizen, a member of parliament or a member of the government. However, a greater access to financial and personnel resources makes a real difference in terms of a politician’s reach, which is why the BVerfG's ruling is coherent in itself, even if in this case it is in favor of a party that is being observed by the German domestic intelligence services.
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