Parliaments versus Raising Extremist Member of Parliament. Amendments to Constitutions Needed?

• Author: Manferd Dauster
• Position: Presiding Judge at the Bavarian Supreme Court/Munich and Presiding Judge at the High Court of Appeal of Munich
• Pages: 27-63

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

IN BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

PARLIAMENTS VERSUS RAISING EXTREMIST MEMBER

OF PARLIAMENT – AMENDMENTS TO CONSTITUTIONS

NEEDED? / Manfred Dauster

Manfred Dauster

Presiding Judge at the Bavarian

Supreme Court/Munich and Presiding

Judge at the High Court of Appeal of

Munich, as well as member of the

Institute for Economic Criminal Law,

International and European Criminal

Law at the University of Saarland,

Saarbrücken; Hilblestraße 12; 80636

München; Germany;

manfred.dauster@oblg.bayern.de.

ORCID: 0000-0001-7582-1127

Abstract:

(Right-wing) extremism is on the rise across the continent.

Propaganda and other activities affect European societies and

parliaments. Extremists do not stop their activities in front of

parliaments’ buildings. As far as extremist performance within

parliaments is concerned, parliaments may react to them using

measures of order, as provided for by their Rule Books but cannot

apply them to harmful activities outside the parliament in the

ordinary (political) arena. Parliamentarian means of defence appear

inadequate and at the end not efficient to defend our representative

democracies. By comparing the present German constitutions in

perspective of the German constitutional history, the article seeks to

find „sharper armoury“ for parliamentary defence. In conclusion,

some consideration is given to constitutional amendment providing

parliaments with the authority to expel the unruly Members of

Parliament.

Submitted :

12 November 2020

Accepted :

12 May 2021

Published :

30 June 2021

Key words: Manifestations of modern right-wing extremism; the

historical right of parliament to get to expel its unruly members

(Paulskirchen Constitution 1849); impeachments against Members

of Parliament in constitutions of the 20th century do not go far

enough and conflict with similar elements of criminal law; return to

the Paulskirchen solution by amending current constitutions.

Suggested citation:

Dauster, M. (2021). Parliaments versus Raising Extremist Member

of Parliament – Amendments to Constitutions Needed? Bratislava

Law Review, 5(1), 27-64. https://doi.org/10.46282/blr.2021.5.1.213

1. IMPACT OF EXTREMISTS ON OUR DEMOCRACIES

The world currently experiences historical times. Later contemporaries will

probably associate 2020/2021 primarily with the Covid-19-pandemic. The pandemic,

however, overshadows somewhat worrying trends that have been increasingly virulent

for years. On the one hand, there are the populists (Rosanvallon, 202 0) - often stocky or

mixed up with conspiracy theories. On the other hand, there are the right-wing extremists,

who like to use populist catchphrases or make use of conspiracy theories when they

coincide with their views. They mirror political currents on the right edge of the political

spectrum. Their protagonists use xenophobic, anti-Semitic, neo-fascist and anti-

democratic statements, and join forces with tinged conspiracy theorists. In the context

of Covid-19, public protest has been forming in Germany for some time against the

measures taken by the German governments to contain the corona pandemic. The

pandemic-demonstrators are increasingly joined by groups from the spectrum of political

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M. DAUSTER

BRATISLAVA LAW REVIEW

Vol. 5 No 1 (2021)

right-wingers (Botsch, 2017; Kopke, 2017), who misuse the demonstrations as a welcome

platform for their own purposes, and they do not shy away from violence. The storming

of the Reichstag Building in Berlin on August 29th 2020, when right-wing participants of a

peaceful demonstration against containing measures at the end of the demonstration

stormed the stairs of the Reichstag Building while waving the “Reich Flag” and the “Reich

War Flag”, represent an illustrative example of the aforementioned. Police prevented

them from forcefully entering the Parliament Building. The incident even prompted

Federal President Frank-Walter Steinmeier to speak out publicly about his worries

(Michael Sommer, 2020).

Right-wing extremists in Germany seek their advantages in expressions of

legitimate civil disobedience. But this is only one piece in the mosaic of the right-wing

scene in the Republic and elsewhere in Europe. The right-wing tendencies (ECRI-Bericht

Über Deutschland (Sechste Prüfungsrunde), 2020, pp. 20–28; Rechtsextremismus in

Deutschland Unter Besonderer Berücksichtigung Der Neuen Bundesländer (WD 1 - 3000 –

159/14), 2016; Fielitz et al., 2018; Fritz & Robertson-von Trotha, 2011; Jesse, 2017; Klärner

& Kohlstruck, 2006; Pfahl-Traughber, 1999; Schubarth & Stöss, 2001) and their political

protagonists have nothing in common with the legitimate anti-Corona demonstrations.

Furthermore, extremist ideology of the right-wing scene is unfortunately in the process of

becoming a commonplace perception in Germany (Apostel, 2020; Back es et al., 2019;

Bedford-Strohm, 2020; Schellenberg, 2016a, 2016b; Sundermeyer, 2012). Anyone who

opposes those right-wingers must expect himself to become a target. This affects

Jewish fellow citizens (Ludyga, 2021) as well as Muslim communities, in fact all who the

right-wing scene considers to be “different” or "foreign”. Politicians of democratic parties

on all levels and critical journalists (die medienanstalten - ALM GbR, 2019; Preuß et al.,

2017) are regularly verbally attacked; these attacks often include their family members.

Representatives of the authorities, even if they "only" fulfil their (legal) duties, are

showered with threats (Mittler, 2020). Most of those threats are sent via anonymous

email accounts (Zipursky, 2019). Unfo rtunately, it does not stop at these e-mail threats.

The murder of the Regional President of North Hesse Walter Lübcke on June 1st, 2019,

1

or the assassination attempt on Cologne's mayor Henriette Reker on October 17th, 2015,

2

show appalling examples of the horrors that constant hate ideology can lead to.

It is questionable whether sufficient public awareness ha s already been

developed when ordinary citizens recognize the risk of being targeted by right-wing

extremist violence or hate speech if such right-wingers feel them not sharing their views.

It is not possible to foresee under which specific circumstances threats and violence will

occur and become reality (Maßnahmen von Bundesregierung Und Unternehmen Gegen

Hassreden („Hate Speech“) Und Weitere Strafbare Meinungsäußerungen Im Internet,

2016).

3

The protagonists of this kind of violence do not all walk around in combat boots

1

The Frankfurt Higher Regional Court sentenced the main perpetrator to life imprisonment for murder and in

doing so also determined the particularly severe nature of his guilt. The verdict is not final (valid). Germany,

Frankfurt Higher Regional Court, 5-2 StE 1/20-5a-3/20 (28 January 2021).

2

The Düsseldorf Higher Regional Court sentenced the perpetrator on two counts of attempted murder with

grievous bodily harm, negligent bodily harm and grievous bodily harm to a total prison sentence of 14 years

(Germany, Düsseldorf Higher Regional Court, III-6 StS 1/16 (1 July 2016)). Later, the Federal Supreme Court

of Justice dismissed the defendant's appeal as ill-founded (Germany, Federal Supreme Court of Justice, 3 StR

454/16 (21 December 2016)).

3

In the meantime, the legislator has reacted with the Federal Act on Combat against Right-Wing Extremism

and Hate Crimes (2020). The law passed on June 18th, 2020 (Bohlen, 2020; Ceffinato, 2020; Eckel & Rottmeier,

2021; Geuther, 2020; Großmann, 2020; Haupt, 2021; Heim, 2020; Jung, 2020; Mantz, 2021; Matsumoto, 2020;

PARLIAMENTS VERSUS RAISING EXTREMIST MEMBER OF …

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DOI: 10.46282/blr.2021.5.1.213

and military clothing. Such hate orators live as bourgeois citizens among us and in

unidentified anonymity (Kaspar et al., 2017). No sections of the society are immune to

right-wing extremist ideas. Even security-relevant professional groups, such as the

military or the Police (Bundesamt für Verfassungsschutz, 2020; Deutsche Presseagentur,

2020b, 2020a; Janisch, 2020c; Müller-Arnold, 2020; Stegemann, 2020; Wernicke, 2020;

Wernicke & Steinke, 2020),

4

make negative headlines (on racial discrimination and US

policing see Rath, 2020). Among these "bourgeois", there are unfortunately also members

of the right-wing groups in the parliaments of Germany. Other countries share similar

experiences (cf. Bromell, 2021).

Hate speech and extreme right-wing ideology in all its forms have become an

alarming social phenomenon in Europe (Chiarini, 2013; Cinpoeş, 2013; Flade & Mascolo,

2020; Georgiadou, 2013; Ghosh, 2013; Häusler & Fehrenschild, 2020; Langenbacher &

Schellenberg, 2011; Marchi, 2013; Meiler, 2020; Minkenberg, 2013; Nagy et al., 2013;

Pankowski & Kornak, 2013; Schellenberg, 2013) demanding our full attention. A "laissez-

faire" attitude is anything but appropriate. If we let our attention falter, we should not be

surprised that we figuratively hold out the words "Mene mene tekel u-parsim" ( מנא, מנא ,

ופרסין , תקל ).

5

Babylon’s King Belshazzar and the divine warnings to him are perhaps far

away in time. Closer to us is the history of the 20th century, in which, at the end of the

1920s at the latest, there were signs of coming disaster, which the democratic forces

either did not understand or did simply neglect (Liebscher et al., 2020 with regards to the

current situation). The social and economic circumstances in those days surrounding the

rise of fascism (Kühnl, 1979, p. 8 5 et seq.; E. Nolte, 1971, p. 49 et seq.) migh t have been

different from nowadays. However, it was the ignorance, negligence, and missing

vigilance of democratic forces, which drove Europe into the abyss of the Second World

War (Austermann, 2020, p. 98 et seq.).

It should not come as surprise that not only local councils but also parliaments

in Germany (Deutsche Presseagentur, 2020c) have encountered such right-wing ideology

and their representatives’ political vulgarity. Not only in Germany but also in almost every

Reinbacher, 2020b; Sahin, 2020; Schiemann, 2021; Simon, 2020; Steinke, 2020a, 2020b; Virchow, 2017;

Wiacek, 2019) and has been submitted to the Federal President for promulgation according to the German

Basic Law (1949), § 82 (1), 1st sentence. The Act aims to improve the investigation and securing of traffic data,

but also at tightening substantive criminal law. However, prior to the adoption of the law by the legislative

bodies, the Federal Constitutional Court had tightened the requirements for access retained data by its

decision (Federal Constitutional Court, 1 BvR 1873/13 and and 1 BvR 26 18/13 (27 May 2020)). Due to the

requirements of the Constitutional Court, the Federal President had doubts about the substantive

constitutionality of the legislative resolution before him and felt prevented from promulgating the law (Janisch,

2020b; Mascolo & Steinke, 2020). The right of the Federal President to review the constitutionality of federal

laws before they are enacted and promulgated is disputed among scholars (Berger, 1971; Hopkins, 2009;

Mewing, 1977; Ossenbühl, 2007; Pohl, 2001; Stein, 2009). In the meantime, the Federal President and the

Federal Government have agreed on re-drafting the Act and to submit the new draft to both Houses of

Parliament for adoption (Janisch, 2020a). On March 30th, 2021, after the two Houses had adopted necessary

amendments, the Federal President signed and promulgated the Act, which is now to enter into force (Press

Release of the Federal President’s Office (30 March 2021)).

4

Police officers of the State Police of North Rhine-Westphalia had founded a private WhatsApp group and

used this forum in order to send anti-Semitic, neo-Nazi and other news from the extreme right-wing spectrum

to group members. Most of the group members behaved passively and "only" received the criminally relevant

news and pictures. However, they remained silent for years and failed to report the incidents to their superiors.

All 30 officials were suspended from duty with immediate effect. Criminal and disciplinary proceedings are

still ongoing. Their aim is to remove all officials from service. The incident in the police district of

Mühlheim/Ruhr is unfortunately not an isolated incident but represents the sad culmination of a worrying gain

of knowledge in the security sector in recent years.

5

Counted and weighed but perceived as too light (the prophecy of the fall of the Babylonian Empire and the

death of its King Belshazzar).