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Parity law overturned in Brandenburg: why the constitutional judges decided so


Brandenburg's constitutional judges have overturned the parity law, which provided for fixed places for women on electoral lists - and clearly. What does this mean for the fight for equality?

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Constitutional Court in Brandenburg

Photo: Soeren Stache / dpa

It was Germany's first parity law - and now it's history.

The Potsdam Constitutional Court has declared the Brandenburg election amendment law, which the state government passed in 2019, to be null and void.

According to the Parity Act, the parties would have had to fill their electoral lists equally with men and women from the 2024 state election.

The AfD and NPD, the Young Liberals and the pirates filed constitutional complaints.

After hearing the complaints from the AfD and NPD, the court in Potsdam has now decided in their favor.

The Thuringia case

The Thuringian Constitutional Court had already declared a similar law in the country null and void in June.

But the state constitutions of the two federal states are different in terms of content - as are the electoral amendment laws.

Supporters of the parity rule had therefore hoped for a different decision in Brandenburg until the end.

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Demonstrators in Potsdam

Photo: Soeren Stache / dpa

In front of the court they gathered again this Friday with their "Pari, Pari" masks and their banners.

Some of the women wore white, others wore at least a white scarf.

They wanted to remember the suffragette movement that demonstrated in white clothing for women's suffrage at the beginning of the 20th century.

“Parity, it's time!” They shouted in front of the Constitutional Court.

The Potsdam judges saw it differently.

A particular setback for the advocates of the law: They decided unanimously.

While three judges in Thuringia had opposed the verdict with separate opinions and declared that the constitutional equality requirement also justified quoted lists, the Brandenburg judges were not receptive to the arguments of the representative of the state parliament, Jelena von Achenbach.

In her argument, von Achenbach referred to a difference in the two state constitutions:

  • For example, Paragraph 12, Paragraph 3 of the Brandenburg Constitution stipulates that the state should work towards real equality between the sexes with "effective measures".

  • In the Thuringian state constitution, however, there is only talk of "suitable measures".

Equality paragraph does not allow quotas

Von Achenbach argued that the state constitution thus enables quoted electoral lists.

The country, so they argue, thus compensates for the factual disadvantage of women when they participate in political office.

But the Brandenburg Constitutional Court found in its judgment that the parity law could not be justified by the equality requirement of the state constitution.

Because the actual equality is a pure state goal determination.

That means: The legislature should work towards ensuring that women and men are equal.

However, a quoted list cannot be derived from this goal.

The paragraph is not explicitly formulated for this.

The ruling raises the question of what these "effective measures" could look like instead - because in the state parliaments and in the Bundestag it has been shown in recent years: Without quotas, the proportion of women in parliaments will not increase.

On the contrary.

Most recently, fewer women came to parliament in the Lantag elections, especially in the eastern federal states.

The further arguments of the counsel for Achenbach hardly played a role in the decision of the court:

  • Already in Thuringia the judges had justified their judgment against the parity law with

    that voters

    could no longer freely decide

    whether they wanted to send more women or more men to parliament.

    The Brandenburg judges saw it similarly.

  • The passed parity law also

    interferes with the parties'

    freedom to make



    Because state election lists that do not comply with the zipper principle could be rejected.

  • In addition, the court in Potsdam found that the

    parties' right to equal opportunities had been


    Because the parity law disadvantages parties with an unbalanced gender ratio compared to those with a higher proportion of women.

  • The implementation of a parity law could ultimately lead to a party

    with fewer list places - or not at all - being able to run in the elections


    This point had caused the lawyers of the NPD and AfD to angry tirades about their discrimination during the summer trial.

    Well they got right.

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Achenbach lawyer

Photo: Simone Ahrend

Von Achenbach had objected in the process: The parties are mediators between the people and politics.

Therefore it is not a question of how many women are in the party.

It is significant that half of the population is female.

The parties would therefore have to seek women for their list places.

The reasoning for the judgment also stated:

  • The parity law affects the

    passive electoral


    because it can deny candidates access to a certain list position.

    Von Achenbach had discussed this in August: Nobody was entitled to a specific place on the list.

  • In addition, the court found that no section of the population could

    derive a certain representation in the state parliament from the principle of democracy


    Von Achenbach had opposed this: the freely elected members of parliament were "representatives of the entire people" - nobody prevented them from representing various opportunities for participation.

  • The court also ruled that

    a political party was free to shape its goals


    Whether or not they want to comply with the demand for equality is left to the parties' freedom of content.

Parity law only with constitutional amendment

This second decision against a parity law at federal state level sends a clear signal for parity projects in other federal states - and also for those who are still debating a comparable law at federal level.

On the one hand, it should now be clear that comparable laws are hardly possible without a constitutional amendment.

For example, the French government had passed its parity law.

On the other hand, the ruling shows the parties that if you don't want equality between men and women, you don't have to implement it.

It fails to recognize that the parties could ultimately use such a quota for women as an opportunity to make themselves more accessible to women, to give them more opportunities.

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SPD politician Geywitz

Photo: Monika Skolimowska / dpa

It also fails to recognize that a number of man-made regulations have in fact penalized their chances of holding political office for centuries.

For example, parliamentarians are not allowed to take parental leave.

And that these regulations mean that there is practically a male quota in politics.

After the verdict, the lawyer Jelena von Achenbach is the last in the room.

The former SPD member of the state parliament, Klara Geywitz, observed them from the audience.

The two women talk briefly.

It was Geywitz who had brought the parity law in Brandenburg through the state parliament.

At that time she was chairman of the interior committee.

"I did not expect that they would decide unanimously"

Geywitz looks dejected.

Von Achenbach is also disappointed that her argument was so little echoed.

"I didn't expect them to decide unanimously," she says.

Unlike the lawyer who defended the Thuringian law, she does not want to file a complaint with the Federal Constitutional Court.

She does not consider such an approach to be very promising.

But she wants to discuss with members of parliament in the coming week how things can go on.

She says: "Parity laws need staying power."

The issue will not be gone, stressed SPD woman Geywitz.

She also knows that parity in Brandenburg can now only be regulated by changing the constitution.

But whether the state parliament will go that far?

Icon: The mirror

Source: spiegel

All news articles on 2020-10-23

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