Pierre Thielboerger reflects on government emergency measures in the constitutional context.
In the following contribution to the Verfassungsblog (in German), Pierre Thielboerger, Hertie School Adjunct and Professor of German Public Law and International Law at the Ruhr University Bochum, and Benedikt Behlert, Research Associate at the Institute for International Law of Peace and Armed Conflict at the Ruhr University Bochum, contribute to the debate in the German legal community on emergency measures to deal with the coronavirus (COVID-19). The authors thank Vanessa Bliecke and Rouven Diekjobst for their assistance in the translation. The German version is available here.
With the COVID-19 epidemic, Germany faces a unique threat the extent and duration of which can currently not be estimated. To this end, the German state has taken measures which – in the words of Chancellor Angela Merkel – “have never been taken before”: gatherings are being banned, shops, restaurants, bars and clubs are shut down, borders are being closed and the organizational separation of law enforcement and the armed forces is being overturned by extensive domestic deployment of the armed forces (Bundeswehr). These measures raise questions about the rules governing constitutional emergencies. This article seeks to contribute to the ongoing discussion, focusing on the fitness of the German constitution (the Basic Law) to address the current epidemic.
After a short overview of the respective regulations in the Basic Law, this article considers two subject areas which are of particular relevance in the context of the COVID-19 epidemic. On the one hand, questions regarding the law of state organization arise, in particular those regarding (the allocation of) competences. On the other hand, fundamental rights are currently experiencing drastic restrictions. Accordingly, there is a need to reflect on how these rights are protected in times of crisis. In assessing both dimensions, the contribution comes to the conclusion that the emergency regulations of the Basic Law are unclear, incomplete and in need of revision. The lack of provisions adequately regulating ‘internal’ emergencies and the absence of an explicit emergency constitutional framework may be a serious impediment – if not to fighting the crisis – then at least to resuming ‘normality’ once the COVID-19 epidemic is reduced to manageable levels.
Overview of the constitutional emergency provisions
Unfortunately, the current emergency regulations are not found in one place within the Basic Law, but are scattered across the text in a rather confusing fashion which is not particularly “crisis-friendly”. This decentralization does not make taking rapid action particularly easy. The objective of the provisions is to protect the very existence of the Federation, the Länder and the constitutional order in times of emergency by simplifying procedures and concentrating competences.
The Basic Law distinguishes between externally induced and internal emergencies. Externally induced emergencies may be present in a state of defense, i.e. when the German territory is being attacked or there is an imminent threat of such attack, or in a state of tension, the precursor to the state of defense. These emergencies are regulated in articles 115a to 115i and article 80a of the Basic Law respectively, and can give rise to competence shifts towards the federal government, simplifications in the legislative process and restrictions of fundamental rights.
Internal emergencies, on the other hand, are regulated by article 35(2), (3), and article 91 in connection with article 87a of the Basic Law respectively. Art. 35(2), (3) regulates cases of particularly serious danger for public security or order, as well as cases of grave accidents and natural disasters. In such cases a Land may request assistance from other Länder and the federal government. Where grave accidents or natural disasters affect the territory of several Länder, the federal government may instruct other Länder to make their police forces available to the extent necessary to combat the emergency effectively. Moreover, the federal government can employ federal border police and the armed forces. Here, the Basic Law takes a step back from its otherwise central federalist principles in favor of effectively addressing emergency situations. However, the measure must be lifted again “at any time at the demand of the Bundesrat and in any event as soon as the danger is removed”.
Article 91 of the Basic Law, on the other hand, regulates cases of an “imminent danger to the existence or free democratic basic order of the Federation or of a Land”. In such cases, a Land may call upon police forces of other Länder, or upon personnel and facilities of other administrative authorities and of the federal border police. Moreover, the federal government may take command of the police and deploy police officers from other Länder and the federal police if the Land in which the danger exists is not willing or able to combat the danger. If the danger extends beyond the territory of a single Land, the federal government may even issue instructions to the Land governments. Article 91 thus provides for considerable limitations of federalist principles in extreme cases. For such limitations, however, high requirements have to be met, as is shown by the qualification of the danger as “imminent”. Furthermore, Art. 87a(4) allows for the deployment of the armed forces in case of an article 91 emergency if federal police forces are insufficient. Measures taken under article 91(2) must also be discontinued either at the request of the Bundesrat or after the danger has been eliminated.
How do these regulations match the current COVID-19 epidemic? The epidemic certainly is not a state of tension nor of defense. (The situation might be assessed differently if a virus was used as a weapon by another state.) However, the current epidemic has recently been described by one of Germany’s leading virologists as a “natural disaster in slow motion”. Even though commentaries to article 35 of the Basic Law list mostly examples for “natural disasters” which unfold so fast that they seem to be happening in fast forward rather than slow motion (e.g. earthquakes, storms or floods), subsuming the epidemic under the article seems possible. Furthermore, should the impending collapse of the public health system materialize in Germany, as it already has in Italy, it would not be far-fetched to assume an imminent threat to the existence of the Federation.
Implications for the law of state organization
As regards the law of state organization, such a classification of the COVID-19 crisis would have two implications: first, potential short- or medium-term limitations to the federalist principles of the Basic Law, and secondly, an expansion of the physical means of power of the federal government, which under certain circumstances could also deploy federal police and the armed forces. But are these legal consequences sufficient to effectively tackle an epidemic?
The COVID-19 crisis has shown that most of the measures deemed necessary fall within the competence of the Länder. Accordingly, the particularly pronounced federal nature of Germany was identified by many commentators as the weak spot of German crisis management. Thus, as a result of the crisis summit held by the German federal government and the Länder on 16 March 2020, only guidelines for joint action were agreed. These are, however, being implemented differently and at different speed by the individual Länder. Some even explicitly opposed individual rules. On 18 March 2020, the Berlin Senate for instance decided, in deliberate and direct contradiction to the guidelines, to keep playgrounds and zoos open. The emergency provisions outlined above are not helpful in such situations. Classifying the epidemic as a supra-regional natural disaster would only grant the federal government the right to order Länder governments to make parts of their administrative apparatus available to other Länder. The federal government therefore could not order individual Länder to close playgrounds or zoos. The federal government could however do so in the event of a supra-regional imminent danger to the existence of the Federation. However, due to the strict requirements, an imminent danger within the meaning of article 91 of the Basic Law can only be assumed if the public health care system will collapse with certainty. Fortunately, as of now, this is not to be expected. However, the federal government could not take any binding measures at this moment to ensure that this remains the case.
Additionally, the ability of supreme federal bodies to act is increasingly in question, even though the Federal Minister of the Interior recently stated at a press conference that ministries can also be run well from home. On Verfassungsblog, Mattias Friehe recently played through what the current epidemic could mean for the functioning of the German parliament. At a time when even smaller gatherings are considered dangerous, plenary sessions of an organ with – at least formally – more than 700 members do not seem to be a great idea. By now, several cases of infections amongst German parliamentarians have become public. For this reason, several members of parliament have already been put in quarantine. Since members of the Bundestag fly in to Berlin from all corners of the republic, regular meetings of the legislative body would even contribute significantly to the spread of the virus.
How does the Basic Law deal with such situations? Unfortunately, the answer is: not at all. There are no provisions in the Basic Law for the case that the Bundestag or another supreme federal organ fails due to an internal emergency. Parliamentarians are therefore already deliberating tricks. For example, “pairing”, an agreement between parliamentarians of opposing parties, according to which a member of one side would abstain from voting in case a member from the other side could not attend. Such agreements could retain proportions within the body while making it smaller at the same time. However, the Bundestag as a whole would fall short of the necessary quorum to decide. The success of such agreements thus depends on assurances of the party factions not to question the (obviously not given) presence of the quorum. In the Land of Bavaria such agreements have already been made. One could call such tricks an abuse of rights (or does the end justify all means?). Moreover, such agreements presuppose the trustworthiness of all factions, something that in view of the recent events in Thuringia is doubtful for some of the party factions.
In contrast the rules for externally induced emergencies do provide for potential solutions. In case of a state of defense, a (small) joint committee takes over the position of Bundestag and Bundesrat in accordance with article 53a Basic Law. It can act more swiftly and effectively than the entire Parliament. Additionally, a simplified and accelerated legislative process may apply in accordance with article 115d(2), (3) Basic Law.
With regard to the law of state organization, the Basic Law is thus arguably much better equipped for externally induced emergencies than for internal ones. A justification for this discrepancy is not apparent.
Fundamental rights in times of crisis
What about fundamental rights in times of emergency? Here, the rules of the Basic Law are at least equally unsatisfactory but for a different reason. The Basic Law does not differentiate between the normal and the exceptional as regards fundamental rights.
On 16 March 2020, Chancellor Angela Merkel presented the abovementioned guidelines, which provide for fundamental rights restrictions which are so severe that they might even lead to the temporary suspension of some fundamental rights. The shutting down of businesses heavily limits professional freedom under article 12 of the Basic Law. The prohibition of gatherings in churches, mosques, synagogues and gatherings of other religions severely curtails the freedom of belief and religion under article 4(2). Currently debated curfews would also constitute drastic infringements on the right to liberty under article 2(2). Some of these limitations are so strict that their compatibility with article 19(2), which provides that the essence of the fundamental rights must not be infringed, is partially doubtful.
This leads to the question of how the Basic Law provides for fundamental rights protection in times of crisis and whether its regulations allow for an effective response to an epidemic while effectively protecting fundamental rights.
The Basic Law does not contain a general provision for fundamental rights in times of emergency. Some fundamental rights norms, such as the freedom of movement (Article 11), have specific regulations regarding their restriction in times of public emergency. However, there are no overarching regulations for fundamental rights. Thus, the regular framework for restrictions to fundamental rights („Schranken“ and „Schranken-Schranken“) has to suffice. And in some respects, it does. Under extraordinary circumstances, such as an pandemic, individual freedoms generally have to give way for the sake of the public good. Extraordinary measures are generally justified in extraordinary times, even within the regular framework. When the circumstances become normal again, the measures have to be lifted.
However, the lack of a clear distinction between the normal and the exceptional can also be dangerous. Eckart Klein argues in his article in Handbuch des Staatsrechtsthat a codification of a state of emergency is useful, when a clear distinction between the normal and the exceptional is made. Only a clear-cut codification of the state of emergency can prevent that these emergency provisions are used extensively, which in turn could lead to a slow deterioration of the protection afforded in normal times.
Concerning fundamental rights, the Basic Law only provides exceptions sporadically for some fundamental rights. For the other fundamental rights, the “normal” framework for restrictions has to suffice, although with the stipulation that the public interest generally outweighs the restrictions on individual rights significantly. This lack of a clear distinction between normality and exception could lead to a successive normalization of sensitive restrictions without special need for justification. This is supported by the surprisingly silent outcry of the general public. The prediction that such drastic measures as were carried out in China could only in great difficulty be transported to a western-democratic society, which some expressed a few weeks ago, turned out to be largely wrong. Protest against the current restriction of fundamental- and human rights in the general German public is nearly nonexistent.
Other fundamental- and human rights instruments, such as the European Convention on Human Rights (ECHR) or the International Covenant for Civil and Political Rights, contain explicit regulations for the restriction of fundamental rights in states of emergencies and can serve as an example for the Basic Law. The ECHR for example provides in its article 15:
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
The European Court of Human Rights defined the “other public emergency” in its famous Lawless-decision as “a situation of exceptional and imminent danger or crisis affecting the general public, as distinct from particular groups, and constituting a threat to the organized life of the community which composes the State in question”. Article 15(1) ECHR requires a high standard for the imposition of extraordinary measures. Moreover, measures might only be imposed „to the extent [they are] strictly required by the exigencies of the situation”. Furthermore, article 15(2) ECHR excludes certain rights from the possibility of derogation, and article 15 (3) ECHR provides for extensive information duties. Article 15 ECHR therefore does more than merely allow for restrictions. Rather, the added limitations and its warning function are decisive. By requiring a high standard, by explicitly excluding certain rights from the possibility of derogation and by setting specific requirements for the measures taken, the provision limits possible measures taken in a state of emergency significantly. The information duties under paragraph 3 moreover have a clear warning function, both internally and externally. States should be aware of the gravity of the imposed measures, and the public should be informed that their rights are only temporarily infringed upon because of the state of emergency.
For the Basic Law, a corresponding regulation was initially rejected due to the dramatic consequences of the emergency provisions of the Weimarer Reichsverfassung. Indeed, considering Germany’s past, such concerns do have their merit and must always be kept in mind. But these concerns should be weighed alongside the understanding of emergency provisions presented above. Given the object and purpose of fundamental and human rights, i.e. their effective protection, the function of emergency provisions in limiting the possibility of restrictions and warning the general public should be highlighted. The goal of the invocation of emergency provisions must always be the re-establishment of normality. They are designed to empower the state in extraordinary situations to protect itself, in order to secure the very basis for fundamental and human rights protection, but also to allow a return to normality as fast as possible. If that is clear, constitutional provisions which explicitly provide for the restrictions of fundamental rights in exceptional situations will contribute to effective fundamental rights protection in the long run. They clarify that the measures taken are extraordinary and thus counteract a creeping normalization of emergency measures.
Is the German Basic Law well prepared for an emergency like the current COVID-19 epidemic? In many ways, not really. The concentration of competences at the federal level is possible under certain circumstances. However, procedural simplifications for the supreme constitutional bodies exist to a large extent only for external emergencies; they would be equally appropriate for internal emergencies. In our view, the handling of fundamental rights in times of crisis is also insufficiently regulated in the Basic Law. Compared to international human rights treaties, the Basic Law is inferior in this respect as it refrains from explicitly regulating the restriction of fundamental rights in a crisis. In the discussion about such regulations for the Basic Law, the protective and warning function of such explicit regulations is often neglected.
Does this mean that the Basic Law in its current form impedes overcoming the crisis? Of course not. But in the current situation we are essentially dependent on all actors pulling together. The Länder need to cooperate with the federal government to draw up guidelines. The Bundestag’s ability to vote even with a minimal number of members requires the acquiescence of all parliamentary groups (not to challenge the absence of the quorum). And the acceptance by society of the glaring restrictions on fundamental rights is evidence of impressive solidarity and considerable care for those groups that are particularly vulnerable to the epidemic. Perhaps society is better and more cohesive than its reputation.
Nevertheless: When the crisis has subsided – since haste is always a bad advisor – the constitutional legislators should gather together and ask themselves the serious question of whether the state can prepare itself better for the next comparable crisis. In this post we have provided initial food for thought. Whether such solidarity and willingness to cooperate among all parties will be restored in the next crisis is anything but certain, especially in view of the numerous political and constitutional crises discussed extensively on this blog and elsewhere.
Suggested citation: Pierre Thielbörger and Benedikt Behlert, COVID-19 and the Basic Law: On the (Un)suitability of the German Constitutional “Immune System,”Int’l J. Const. L. Blog, Mar. 20, 2020, at: www.iconnectblog.com/covid-19-and-the-basic-law-on-the-unsuitability-of-the-german-constitutional-immune-system/