“Who protects the constitution from the Office for the Protection of the Constitution?” / Illustrations: Karsten Petrat (Cicero)
The Office for the Protection of the Constitution was founded to preserve the free democratic basic order as it has taken shape in the Basic Law, the current constitution. In the meantime, he is attacking the fundamental right of freedom of expression, which is essentially constitutive of this liberal democracy, and instead of protecting democracy, he is fighting it himself from an officially effective position. This reversal is structurally linked to the tasks of the Office for the Protection of the Constitution and is little known. The Freiburg constitutional law expert Prof. Dietrich Murswiek undertook to uncover them in a lecture that was printed in the Swiss newspaper “Weltwoche”.
The special path of the Office for the Protection of the Constitution
With its concept of the Office for the Protection of the Constitution, Germany is taking a rather unique path in the democratic world. Usually, domestic intelligence services limited themselves to protecting the state against coups, coups, terrorism – in short: against politically motivated violence. They are therefore limited to what is referred to as “state security”. But the task of the Office for the Protection of the Constitution goes far beyond that.
It should not only prevent a violent overthrow, but also prevent forces that want to eliminate democracy and the rule of law from coming to power by way of democratic elections.
So he not only makes political procedures – violence or coercion – his topic, but also political content, i.e. programs and opinions. He is already opposed to political efforts that are directed against the free democratic basic order in terms of their political orientation.
This is related to the German concept of “defensive” or “militant democracy”: it should be made impossible for the enemies of liberal democracy based on the rule of law to win a majority with democratic elections and then abolish democracy. Democracy, the rule of law and the guarantee of human dignity are unalterable according to the German Basic Law, so they cannot be abolished even with a constitutional majority. And parties that nevertheless strive for this could be banned.
These fundamental principles, which are summarised in the concept of the “free democratic basic order”, are therefore also part of the tasks of the Office for the Protection of the Constitution.
The conflict with free political decision-making
However, according to Prof. Murswiek, this task of the Office for the Protection of the Constitution is in tension with the basic principle of freedom of political decision-making. In a democracy, the political decision-making of the people must be free. The state is not entitled to impose certain opinions on its citizens or to influence the formation of political will by sovereign means. The constitution guarantees the freedom of political competition in the battle of opinions, and especially among political parties. In principle, the state should not interfere in this competition.
However, “militant democracy” makes an exception to this: If it is a matter of preventing enemies of democracy from taking over state power in order to then abolish democracy, she believes that the state may and must limit political competition. He is allowed to intervene against enemies of the constitution.
The Office for the Protection of the Constitution therefore analyzes and evaluates political expressions of opinion and communicates its assessments to the public. In doing so, however, he intervenes in the political battle of opinions.
If a political party is publicly classified as “extremist” by the Office for the Protection of the Constitution, this is a massive disadvantage for this party in political competition. This already applies if she is initially only observed as a ‘suspected case’. Such a party loses members, voters, sponsors. Their chances of recruiting new members are drastically reduced. She is stigmatized in the media as extremist. They report “no longer neutrally about their activities, but, if at all, only with the tendency to strengthen the assessments of the Office for the Protection of the Constitution.”
The Office for the Protection of the Constitution therefore sees its task not only in informing the government in good time about anti-constitutional tendencies, but it also sees itself as an organ for combating such tendencies. And the means to do this is to go out into the public eye. If the Office for the Protection of the Constitution describes an organization or a person as “extremist” (or even suspects it), this is a public stigmatization.
No Proof Certainty
There is a fundamental problem: one does not know whether the allegations and assessments of the Office for the Protection of the Constitution are correct.
“… this security does not exist. And it would not exist even if one could be sure that the Office for the Protection of the Constitution would not allow itself to be deliberately instrumentalized by the government to combat opposition efforts. Because the evaluations are often difficult, and there are often only assumptions about the underlying facts.”
If the assessments of the Office for the Protection of the Constitution are correct, then they benefit democracy, but if they are not correct, the damage to democracy is many times greater than the benefit in the opposite case.
However, the risk that the Office for the Protection of the Constitution will publish false extremism warnings is very high, even if the actors are basically not malicious. Even with the reports of suspicions, the Office for the Protection of the Constitution is fighting organizations of which it admittedly does not yet know whether they are really anti-constitutional. This is already a serious, unjustifiable encroachment on fundamental rights, which is not necessary to avert a danger and is therefore unconstitutional.
In general, the evidence in these matters is highly complex. The objects of observation by the Office for the Protection of the Constitution – i.e. the political parties or other organizations concerned – usually did not say that they wanted to eliminate democracy, the rule of law or the guarantee of human dignity. From the point of view of the Office for the Protection of the Constitution, they do not do this because they want to hide their true objective. The Office for the Protection of the Constitution wants to determine this on the basis of “factual evidence”. However, if nothing is found in the programs and official announcements of the object of observation, these are usually expressions of opinion by functionaries and other members. In many cases, the Office for the Protection of the Constitution denounces statements that, taken in themselves, do not express an anti-constitutional objective. This objective is then simply assumed.
Examples
“The most important example from recent years is the ethnic-cultural concept of the people. The Office for the Protection of the Constitution claims that anyone who uses an ethnic-cultural concept of the people, i.e. anyone who speaks in particular of a German people who is not defined by nationality but by characteristics such as language, culture, history or ancestry, is a right-wing extremist. Because he wants to discriminate against all people who do not belong to the people understood in this way in a way that is contrary to human dignity. But that is nothing but an unfounded insinuation.”
As another example of the influence of the Office for the Protection of the Constitution on the formation of political will, without this serving the protection of the constitution, Prof. Murswiek cites the so-called “de-legitimization of the state relevant to the protection of the constitution”. This means:
“Anyone who disparages the institutions of the free constitutional state wants to deny their legitimacy and in this way prepare the ground for replacing them with an undemocratic, unfree order. This is an anti-constitutional, extremist objective.”
In practice, however, the Office for the Protection of the Constitution already sees the disparagement of and agitation against democratically legitimized representatives as extremist de-legitimization. This blurs the line between protecting the constitution and protecting the government from criticism and ridicule. – Mocking the government is the traditional task of cabaret, and that is a basic democratic right of every citizen.
For example, it was also classified as extremist to describe the Corona lockdown policy as a “Corona dictatorship”. And the Office for the Protection of the Constitution has already identified “agitation against climate protection measures” as a new field of activity for “delegitimizers.” Even polemics against a party involved in the current coalition government have already been assessed by the Office for the Protection of the Constitution as de-legitimizing the state.
With its largely inaccurate assessments of expressions of opinion as alleged indications of anti-constitutional tendencies, the Office for the Protection of the Constitution exerts pressure to refrain from such expressions of opinion. The exercise of the freedom of expression guaranteed by fundamental rights becomes a risk for the individual. And since the Office for the Protection of the Constitution only marks oppositional expressions of opinion as “extremist”, but never statements by members of the government or by functionaries of the governing parties, it damages equal opportunities among political competitors. But this is one of the foundations of democracy.
My conclusion
In its efforts not only to protect the state against politically motivated violence, but to prevent forces that want to eliminate democracy and the rule of law from coming to power in advance, the Office for the Protection of the Constitution encroaches on the fundamental fundamental right of freedom of expression, in particular also on the freedom of political decision-making of the parties.
By not only checking political content, i.e. programmes and opinions, but also actively assessing them as “extremist” or even just suspecting them as an official authority, political parties, groups or individuals are stigmatised.
This is serious if only because it is always uncertain whether the allegations and assessments of the Office for the Protection of the Constitution are also true, since – also in view of the party affiliation of the civil servants – the evaluation processes are very complex, difficult and often based on assumptions. The risk of injustice being done to those affected is extraordinarily high.
Such public action by the Office for the Protection of the Constitution is therefore an unconstitutional encroachment on freedom of expression and democratic events, not only in cases of suspicion, but also in the case of well-founded indications.
Yes, even in the case of statements that are obviously and demonstrably directed against the values of the Basic Law, the Office for the Protection of the Constitution does not have to intervene publicly. They also fall within the scope of protection of the fundamental right to freedom of expression, as the Federal Constitutional Court stated on 28.11.2011: “In particular, the person expressing an opinion is not obliged to share the values on which the constitution is based, since the Basic Law builds on loyalty to values, but does not enforce it. (…) The mere worthlessness or even dangerousness of opinions as such is no reason to restrict them. (…)
Consequently, it is not the content of an opinion as such that may be prohibited, but only the manner of communication that already tangibly carries the transition to a violation of legal interests and thus crosses the threshold to an emerging violation of legal interests.” 3
And in the decision of 22.6.2018, the Federal Constitutional Court is even more specific:
“In particular, the Basic Law does not recognize a general basic principle that would permit a ban on the dissemination of right-wing radical or even National Socialist ideas with regard to the intellectual effect of its content. Rather, Article 5.1 and 5.2 of the Basic Law guarantees freedom of expression as a freedom of thought, regardless of the substantive assessment of its correctness, legal enforceability or dangerousness. Article 5.1 and 5.2 of the Basic Law does not permit the state’s access to the conviction, but only authorises encroachment if expressions of opinion leave the purely intellectual sphere of being considered correct and turn into violations of legal interests or recognisably into situations of danger.”
This means that the public prosecutor’s office, the courts and the Office for the Protection of the Constitution may only take action if a criminal statement has been made or if the persons concerned engage in actions or actions that recognisably endanger the existence of democracy.
The Office for the Protection of the Constitution has to observe this in the background, especially with regard to organizations and parties, and, if necessary, initiate a ban procedure with the government before the Federal Constitutional Court.
However, by publicly combating problematic attitudes and opinions of citizens and parties, the Office for the Protection of the Constitution is massively encroaching on the fundamental right of freedom of expression, which is essentially constitutive of democracy.
It is itself an undemocratic and unconstitutional problem.
In a democracy, uncovering unconstitutional attitudes and opinions and combating them with arguments is solely a matter of public intellectual debate between the citizens themselves and their organisations.
Translated and edited by L.Earth