Democracy - Deficit III

A liberal democracy requires mechanisms based on the rule of law. There are also deficits in this respect.

Liberal democracy is inconceivable without the rule of law. One mechanism of the rule of law is the separation of powers. However, in my opinion, the separation of powers is not sufficiently implemented in Germany and therefore represents a further argument that there is a democratic deficit in Germany.

1. In general:

The checks and balances, enshrined in the Constitution (Art. 20 II GG), is another elementary criterion for a democratic state order. The separation of powers is a practical instrument intended to limit the power of the state. The power of the state is divided into three main functions: The power of legislation (legislator), the executive power (executive) and the judicial power (judicial). The power of the state must be limited, as there is a person behind every post. And human beings are naturally subject to weaknesses.

Montesquieu describes this weakness as follows: “Political liberty is only to be found under moderate governments. However, even in moderate states it does not always exist, but only when power is not abused. Eternal experience teaches, however, that every person who has power is driven to abuse it. They go further and further until they reach their limits. Who would have known: even virtue needs limits. So that power cannot be abused, it is necessary to ensure through the construction of the state that power restrains power. Because: “Power corrupts. Absolute power corrupts absolutely.” From this Montesquieu concludes that if the three powers collapse into one person, there are no more freedoms. For there is always the possibility that he will enact tyrannical laws in the role of the legislature and then exercise them tyrannically in the role of the executive. The same applies to the administration of justice. “There is no freedom even if the judicial power is not separated from the legislative and executive power. The power over the life and liberty of citizens would be unrestricted if it were coupled with the legislative power, because the judge would be the legislator. The judge would have the coercive power of an oppressor if it were coupled with executive power.”

And even if one does not share the view that humans are naturally inclined to abuse power, one must still recognize that it is quite possible for a person to abuse his power. Just as there have been far-sighted, public-spirited kings, there have also been authoritarian, quarrelsome, selfish kings who exploited their people. It is not the belief in the good or bad in people that is important in this consideration, but merely the potential of what is possible. It is therefore imperative that the power conferred by an office is limited, so that it does not matter whether the person occupying this position tends to abuse power or not. Society has influence over the construction of the office, but not over the characteristics of the person. In the following, I will take a look at the constitutionally enshrined separation of powers.

2. Connection between legislation and government:

The proportion of government bills in legislative proposals is high. During the 17th electoral term (2009-2013), the government submitted 492 bills, 54.3% of all bills. During the 18th electoral term (2013-2017), the proportion of government bills rose to 67.3 % (530 bills); in the 19th electoral term, the proportion fell to 52.0 % (489 bills).

The really important key figures are the number of laws passed. Here the extent is even clearer. The proportion of government bills that were ultimately passed by the Bundestag was 78.5 % during the 17th electoral term (434 in total), 87.9 % during the 19th electoral term (488 in total) and 81 % during the 19th electoral term (443 in total).

To summarize again: The government submits bills to the Bundestag, 82.5 % of which have become laws on average during the last three electoral terms. This is largely due to the problem of the coalition agreement mentioned in Democracy-Deficit II.

If we think of Montesquieu's ideas: separation of powers should prevent the king from making laws for himself. Forgive the polemic, but we are certainly still a long way from the executive and legislative powers coinciding. For me, however, this is a political practice that should be denounced or at least publicly discussed.

3. Connection between the government and the judicative:

According to the constitution, there should also be a separation between the executive and the judicative. In terms of state organization, however, this is not the case. Rather, the judiciary is integrated into the executive at state level.

For example, the Minister of Justice is responsible for the selection and appointment of public prosecutors. The Minister of Justice can issue instructions to public prosecutors (§146 GVG), and the Minister of Justice decides on the promotion of judges and public prosecutors. The following three examples show the connection between the government and the judiciary.

a. Example by Udo Hochschild

As a first example, I would like to quote a contribution by Udo Hochschild. Udo Hochschild was a judge from 1975 to 2008 and wrote his doctoral thesis on “The separation of powers as a constitutional principle”. Udo Hochschild has been retired since August 1, 2008. He runs the website“www.gewaltenteilung.de”, where he takes an in-depth look at the lack of separation between the judiciary and the executive and argues for their institutional separation. He offers more in-depth content there, so that interested parties are recommended to take a closer look at this site. According to his website, his content can be used without permission. I have therefore taken the liberty of quoting his analysis verbatim below:

“In Germany, politicians appointed as ministers and the civil servants subject to their directives decide on the selection, appointment, grading in references and promotion of judges. This executive power over judges is power over the lives of individuals. Every judge knows that their career depends on whether their behavior pleases the government. This leads not only to social, but also to psychological dependencies of judges.

The power of the minister extends into the courts: contrary to a widespread misconception, the presidents of the courts are not judges in their role as presidents, but administrative officials bound by instructions. Only while they are carrying out judicial activities (processing court files, conducting court hearings) do they have the same status as judges. As representatives of the court and in their capacity as organs of the administration of justice, however, they are civil servants (in the ministerial field service) subject to the instructions of the executive and as such are the superiors of the other judges at their court.

The presidents of the courts regularly give the judges grades with the character of a transfer. The standard for determining when a judge is “good” and is “transferred” to the next higher grade level in the certificate is determined by another state authority (the ministry) in assessment guidelines. The presidents of the courts are bound by these ministerial guidelines. The selection for promotion is made in this way – also – according to the political ideas and interests of the government.

It may be in their fiscal interest to give better marks to judges who work superficially than to judges who work carefully. Because those who spare themselves the trouble of asking questions and making inquiries, who ignore the factual or legal arguments of the parties to the proceedings, who refrain from thinking through expert opinions, who cut citizens off during the hearing and deal with them in the judgment using sentence templates, handle more cases per year than a citizen-friendly judge who strictly adheres to the constitution and the law is able to. This reduces costs: the more cases a judge can handle in a year, the fewer judges are needed. Superficial and careless judges help the government to save on judges. Politicians appointed as ministers can reward judicial misconduct: the cost-saving “fast judge” rises in the grading scale and makes a career, while his diligent colleague “stays put”. The constitutional principles of the right to be heard and of selection of the best are left behind.

The same applies all the more to public prosecutors, who are bound by instructions in Germany.

The career paths of judges and public prosecutors in Germany are often intertwined: a public prosecutor can be rewarded with a judgeship, a judge with a promotion in the public prosecutor's office. Constantly switching between the roles of prosecutor and judge, this can lead to the highest positions at federal and state level. But how neutral can a criminal judge be between the prosecution and the defense when the public prosecutor is a colleague, a good old acquaintance, a friend from the regulars' table, while the defense lawyer is meeting him for the first time? Similarly, in some places, the careers of civil servants and administrative court judges are intertwined.

It is within the power of the executive to mislead the public about its method of selecting the best for the judiciary by, on the one hand, prescribing appropriate criteria for assessment that can be read in publicly accessible ministerial guidelines on evaluation, but then, on the other hand, promotion in individual cases (the awarding of grades) due to informal ministerial “suggestions” and are overlaid by unwritten criteria such as 'willingness to adapt', 'fulfilment of targets' or the “recommendation” of unlawful 'standards'.

The talk is of the executive's ability to exercise power over the judiciary. But isn't it rather unlikely that this power would be used in a negative way in Germany, a country governed by the rule of law? – An enlightening sentence from Max Frisch: “The improbable is only a borderline case of the possible, and when it does occur, the improbable, there is no reason for astonishment, for shock, for mystification” (Homo Faber, Stuttgart · Hamburg, 1957 pp. 28 f.). Even what is claimed to be improbable is a real possibility. Does the German democratic constitutional state have open flanks?” (https://www.gewaltenteilung.de/#4)

b. Example of the Council of Europe

The Council of Europe also dealt with the German judicial system. In doing so, the Council of Europe examined whether the German judiciary enjoys the necessary independence from the government. The result: the independence between the judiciary and the government is not sufficiently guaranteed.

c. Example of the ECJ

The European Court of Justice also commented on this issue. In its judgment of May 27, 2019 in Case C-82/19 PPU, the European Court of Justice ruled in a preliminary ruling procedure on the interpretation of the term “issuing judicial authority” within the meaning of Article 6 I Rb-EuHb. This provision regulates the determination of the competent authorities when issuing a European arrest warrant.

The reasoning stated, among other things, that “as the German government confirmed at the hearing before the Court of Justice, this right of instruction gives the Minister of Justice the power to exert direct influence on the decision of a public prosecutor to issue or not to issue a European arrest warrant. The German government added that the right of instruction can be exercised in particular at the stage of considering whether the issuing of a European arrest warrant is proportionate.” The result of the procedure: the German public prosecutor does not fall under the term “issuing judicial authority”. The consequence: the German public prosecutor may not issue a European arrest warrant.

4. Summary

What was most surprising in the examination of the various problems was that those circumstances are accepted practice. Proposals to eliminate the deficient separation of powers have existed for many years. Both politicians and the judiciary have been trying to solve this problem for years.

To a certain extent, this has an impact on the problem of the electoral mechanism. Because the more the election campaign is reduced to a “best” interest, the more risky a separation of powers that is not firmly established becomes. This is because the electoral mechanism, to a certain extent, creates incentives to engage in populism. Not because the voter is stupid or anything like that. But because our electoral mechanism rewards populism. For this reason, it is particularly important to establish the separation of powers between the judiciary and the executive as quickly as possible. It is still in our hands to limit the power of the organs. Once the populist tendencies are too strong, it may already be too late. And Montesquieu's hypothesis could again be given an empirical example.

In the context of the best interest, another question naturally arises: Should politics really answer individual interests? Or shouldn't it be much more about the question of what is best for the whole people? And how can this question be answered, and how could one determine the representatives of the people on that basis? However, I do not want to open that can of worms at this point. In any case, there are further questions that we must ask ourselves for the sake of our democracy.