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Will the Basic Law be buried?
Not at all
Photo: ODD ANDERSEN / AFP
"No to the authorization basis," demanded more than 230,000 signatories of an online petition.
You see in the amendments to the Infection Protection Act (IfSG) passed by the Bundestag and Bundesrat as an »authorization basis« for the Ministry of Health to restrict »individual basic rights« and »freedom of trade in many sectors« by ordinance »in many cases«.
In particular, "the restriction of fundamental rights through ordinances" represents "a red rag according to previous case law, since it is rightly not seen as constitutional.
Some speak even more clearly of an "enabling law" and see it as further evidence of a "Corona dictatorship".
Pretty much everything is wrong with that.
It is true that the IfSG is given a new authorization basis to issue statutory ordinances to combat the corona pandemic, in a new paragraph 28a.
However, it is by no means the case that the law so far does not contain any such basis for authorization.
So something completely new is not happening here that would be contrary to democracy or the rule of law, on the contrary.
In Article 80 of the Basic Law, it says: "By law, the federal government can be authorized by a federal minister or the state governments to issue statutory ordinances."
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Correctly, however, this does not mean that a law as such is to be referred to as the »basis for authorization« - not even the IfSG - but only the respective norm.
Because the IfSG also contains many provisions that do not authorize the adoption of a regulation.
And even before the revision, the IfSG contained such "authorization bases" for issuing ordinances and other official measures.
However, some courts had repeatedly expressed doubts as to whether the blanket and general authorization basis for statutory ordinances, which so far only resulted from Paragraphs 28 and 32 IfSG, is still sufficient in the event of a long-lasting pandemic.
Because Article 80 of the Basic Law also states that "the content, purpose and extent of the authorization granted must be determined in the law".
The Bavarian Administrative Court found that there were “considerable doubts” as to whether this is sufficient in the present case.
That was the reason for the legislature to undertake an attempt at improvement: by defining the requirements for the adoption of these measures more clearly, by designating measures individually, by making it clearer what the authorities have to orientate themselves on when making their decisions.
For example, that regional developments must be taken into account.
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So the legislature is doing something that improves the basis of authorization.
The courts will soon decide whether this is sufficient.
The repair is now of course noticeable.
But it is not a bad thing, but an improvement in terms of the rule of law and democracy.
The fact that the legislature does not regulate every detail in a law, but leaves this to the responsible ministries or authorities, is also nothing new, but everyday legislative life:
On the basis of the Animal Welfare Act, for example, the hen keeping ordinance was issued
The road traffic regulations and the catalog of fines are based on the Road Traffic Act
Cities base their ordinances on New Year's Eve crackers on the Explosives Act
All of this happened without - as far as is known - anyone having had the idea that it was per se a state injustice.
The fact that fundamental rights can be restricted by ordinances is neither something new nor something in itself reprehensible.
However, it is the case that a regulation - because it is not a formal law - is subject to special requirements.
A restriction of fundamental rights by a regulation is therefore unconstitutional if it does not meet these strict requirements.
This is what the Federal Constitutional Court found in the case of the hen keeping regulation, because the regulator - in this case the Federal Ministry of Transport - had cited the basis of authorization incompletely.
And for a similar reason, the amendment to the road traffic regulations that recently came into force has not been applied since May.
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Contrary to what some think, it does not matter how often the word "empower" occurs in a law or a norm.
If the legislature enacts many detailed individual regulations, that is better than if it merely "authorizes" the governments "to take all necessary measures" across the board.
The rights of the parliament should not be weakened, but strengthened
It becomes really malicious when some use the term "Enabling Act" to insinuate that there is a parallel to the National Socialist "Enabling Act" of March 24, 1933, or more precisely, the "Law to Eliminate the Needs of the People and the Reich".
Even the title makes it clear that at that time it was about something completely different, about emergency legislation of fundamental importance.
According to this law, imperial laws could henceforth also be passed by the National Socialist government itself, and these could even deviate from the constitution.
"With this transfer of the legislative function," says Creifeld's legal dictionary, "the Reichstag has disempowered itself and formally opened the way to dictatorship."
None of this is the case with Section 28a of the Infection Protection Act.
The rights of the parliament should not be weakened, but strengthened.
And state governments can neither change laws nor deviate from the Basic Law on this basis.
Rather, the courts are empowered and called upon to review this regulation for its legality and constitutionality.
And precisely because these ordinances are not formal laws, every court - not just the Federal Constitutional Court - can declare individual provisions of an ordinance or the ordinance as a whole to be invalid.
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In the past few years, statutory ordinances have become more and more important because they save "the time-consuming process of legislation" and enable "faster adjustments to the legal situation to suit changed circumstances," says Creifeld's legal dictionary.
One may regret that.
But where, if not in a pandemic that runs in recurring waves, would legal ordinances make sense - especially to be able to quickly withdraw restrictions if they should no longer prove to be necessary?
In this respect, a law that contains an authorization to issue statutory ordinances could be referred to in purely linguistic terms as an "enabling law".
Since this term is historically proven and burdened, it is - rightly - avoided in this general context.
But whoever applies it with this historical charge to the Infection Protection Act has either not understood anything or deliberately wants to deceive the ignorant.
Anyone who equates right and wrong, democracy and dictatorship may be up to some things, but certainly not good.
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