Referendum: “Try before you trust!”
ESM and Fiscal Pact: The trick with “democratic legitimacy”
by Felix Staratschek
Translated from German to English: http://www.currentconcerns.ch/index.php?id=1936
It is with great concern that I observe the efforts to abrogate the guidelines for European and foreign policy of our “Grundgesetz” (Basic Law) by voting for a new constitution in a referendum under Article 46 of the German Grundgesetz. Once the association “Mehr Demokratie” started its campaign “Volksentscheid, sonst klagen wir!” (Referendum now, or we go to court) by the end of March 2012, more and more politicians jump on the bandwagon. After Schäuble made known in Der Spiegel, that such a referendum could come sooner than expected, and after reading in the “Rheinische Post” on 2 July 2012, that Steinbrück (SPD) considers it possible to win such a referendum by an alliance of government, business and media, I can now read in the newspapers or hear in news reports that more and more politicians are speaking in favor of a referendum.
I am an advocate of direct democracy in the sense of the statement of Constitutional Judge Papier that referenda must be possible on all issues decided upon in the Bundestag. But that is not the case here. The politicians are now calling for a one-time referendum – once and then probably never again. It is not a matter of improving democracy, but it is about depriving constitutional claimants, who address the Federal Constitutional Court in questions of international cooperation, of their means to file a suit by introducing a new constitution. What the politicians want is a revolution. They do no longer want to be disturbed in their activities, because currently all citizens have the right to file complaints if they see the core identity of the Grundgesetz violated, says Constitutional Judge Vosskuhle (“Rheinische Post” of 5 March, 2012).
In the Lisbon judgment the judges at the German Constitutional Court have made clear statements of what is possible with the Grundgesetz and what is not:
In marginal number 244 of the Lisbon judgment, the judges write: “Neither may the European integration lead to the erosion of the democratic system of government in Germany nor may the supranational public authority in itself fail to meet basic democratic requirements.”
From marginal number 233: “The Grundgesetz does not authorize the German state authorities to transfer sovereign powers in such a way that exercising them can justify other competences for the European Union. [...] Even a far-reaching autonomy of the political authority in the European Union, by granting steadily increasing responsibilities and a gradual overcoming of remaining unanimity requirements or previously formative regulations concerning the equality of states, can, from the perspective of constitutional law, solely be granted out of the freedom of the independent people. Such integration steps must constitutionally be limited by the act of transfer and be revocable in principle.”
Since ESM and Fiscal Pact are neither revocable nor limited in the scope of their effect and variability, these things should – according to the Lisbon judgment – not be decided upon or implemented as long as the Grundgesetz applies. And that is why more and more politicians actually want to do away with the Grundgesetz! However no one literally says so.
And in marginal number 228 we read: “The Grundgesetz does not enable the bodies acting on behalf of Germany to give up the self-determination of the German people in the form of international legal sovereignty of Germany by entering into a federal state. This step is reserved only to the directly expressed will of the German people because of its related irrevocable transfer of sovereignty onto a new legitimacy subject.”
It is amazing what “Mehr Demokratie” writes in its constitutional complaint. After they have laid down on more than 100 pages why the ESM and Fiscal Pact are to be rejected, we can read the following sentence: “V. The procedure: Only in this way democratic legitimacy associated with ESM, Fiscal Treaty and Article 136 paragraph 3 TFEU can be conveyed for integration steps, for system change in the Economic and Monetary Union and the abandonment of sovereignty in one, if not the central policy field of the Union.” While in the advertising texts for participating in this lawsuit they always claim that they are against the ESM and Fiscal Pact, they explain here how these two agreements are provided with “democratic legitimacy”. How to do so can be read in the preceding lines – by voting for a new constitution via Article 146! Does this not mean that they are they cheating the more than 37,000 co-plaintiffs? It is said here you can participate in an action against ESM and Fiscal Pact, while towards the end it is explained, how both can still be legally enforced!
The eternity clause in the Grundgesetz: Article 79, paragraph 3
What is the reason laid down in the Grundgesetz that hinders the politicians in the Bundestag and Bundesrat to simply wave through ESM and Fiscal Pact? The main obstacle is Article 79, paragraph 3, of the Grundgesetz: “Amendments to this Grundgesetz affecting {…] the principles laid down in Articles 1 and 20 shall be inadmissible.” This is the eternity clause in the Grundgesetz, which names the articles dealing with the inviolability of human dignity, the respect of the Grundgesetz for UN human rights “as the basis of every community, of peace and of justice” and to bind the legislature to the following basic rights. Article 20 contains important information about how the state is constituted: All state authority in a democratic and social state is derived from the people and shall be exercised through elections and other votes, and we have a right to resist, if this order is to be eliminated. It is not compatible with this article that the state power should emanate from ESM and Fiscal Pact actors in future.
Our Grundgesetz was adopted after the major disaster of World War II. Under the impression of what they had experienced the fathers of the Grundgesetz wanted to do everything that never again someone may be authorized to push his policy through while passing by the Parliament and the people. A law had transferred the state power to the Nazis in 1933 thereby authorizing the Hitler government, to govern without Parliament and the people’s will.
On 11 January 1949 at the meeting of the General Editorial Committee (ARA) of the Parliamentary Council Dr Thomas Dehler (FDP) is quoted as saying that a revolutionary should not be given the opportunity to claim that the Grundgesetz had been abrogated by legal means. In the Main Committee meeting of 12 January 1949 he said, “In any case I think it is essential that we create a barrier, not in the belief that we can come up with a revolution, but in the will to take the mask of legality off a revolution.”
Shockingly, the judge at the Federal Constitutional Court and ESM process participant Prof Peter Michael Huber speculated on “a supranational economic government” in an interview entitled “No European economic government without amending the Grundgesetz”, published by the “Süddeutsche Zeitung” on 19 September 2011. He imagined this in the form of a new constitution for Germany approved by plebiscite along the lines of Article 146 of the Grundgesetz, which would require only a few changes of Article 23 of the Grundgesetz and of the eternity guarantee (Article 79, paragraph 3, of the Grundgesetz) in the form that it would be put under reserve of a European economic government. He also noted that “in substance” such procedure would mean a “revolution”.
It is interesting what happened in Karlsruhe on 10 July 2012. In addressing the urgent motions filed by the plaintiffs, the comprehensive urgent motions and the presence of the applicant Sarah Luzia Hassel Reusing were not even mentioned. Even in the “Süddeutsche Zeitung” of Friday 29 June 2012, the suit of Mrs Reusing, who was given a proper case number and has not been dismissed, was not mentioned. The article says that “All suits are available to the Süddeutsche Zeitung”. “All actions have been developed by luminaries in their field”. “All constitutional challenges against the ESM and Fiscal Pact, therefore, culminate in the statement: Now the constituent power of the sovereign, i.e. the state people, is challenged”. Whether the “Süddeutsche Zeitung” has been victim of withheld information or whether it deliberately told untruths, I do not know. The fact is that the human rights activist Sarah Luzia Hassel Reusing intends to check by means of her lawsuit whether ESM and Fiscal Pact are compatible with the basic values of our Grundgesetz. Mrs Hassel Reusing also favors referenda, but not laws, whose compatibility with the Grundgesetz have to be scrutinized.
I have great doubts whether a society based on the ideas of Christian social teaching will still be possible if human rights and solidarity, personality, subsidiarity and the common good must be subordinated to the interests of big capital. The husband of Mrs Reusing can be heard on YouTube in some videos. The lawsuit is supported by Netzwerk Volksentscheid, and everyone can express his solidarity with this action there: netzwerkvolksentscheid.de/esm-klage/. On my Viertürmeblog I justify in detail why I withdrew from the lawsuit of the Association “Mehr Demokratie” and I also report on news related to the Reusing lawsuit. It would be a good sign if many Democrats and Christians showed solidarity with the Reusing law suit because I believe this is the only action that can result in a Europe which will still deserve the name “Christian occident”. It would be nice if many readers contacted the members of the Freie Wähler (independent voters), the ÖDP (ecological party) and the Piratenpartei, with the request that these groups withdraw from the Mehr Demokratie law suit and defend our Grundgesetz. You can also contact your local MPs on www.abgeordnetenwatch.de and ask them for their views on the eternity clause in our Grundgesetz. •
Literature:
Urgent motions by Sarah Luzia Hassel Reusing: http://oedpbergischland.blogspot.com/2012/08/eilantrage-zur-verfassungsklage-von.html
Steinbrück pro referendum: http://nachrichten.rp-online.de/politik/grundgesetz-fuer-europa-1.2894086
Grundgesetz and Europe. http://nachrichten.rp-online.de/politik/grundgesetz-gegen-eu-staat-1.2740054
Excerpt of the Huber interview in «Süddeutsche Zeitung” http://www.sueddeutsche.de/wirtschaft/verfassungsrichter-huber-im-sz-gespraech-eine-europaeische-wirtschaftsregierung-ist-heikel-1.1145416
Opening of the trial in Karlsruhe: http://www.youtube.com/watch?v=ksLdBwnZOcE
Video Channel of Sarah and Volker Reusing:
http://www.youtube.com/user/UNSERPOLITIKBLOG?feature=g-all-lik
Constitutional Complaint of “Mehr Demokratie”