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Why the Karlsruhe judges also failed the AfD

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After its attempts in the Bundestag, the AfD also failed in its attempt in court to elect a Deputy Speaker of the Bundestag from among its ranks. On Tuesday, the Federal Constitutional Court rejected the complaints of the parliamentary group and one of its members (Az.: 2 BvE 9/20, Az.: 2 BvE 2/20).

The party has been trying for years to send politicians from its ranks to the Presidium of the House of Representatives. But the parliamentary majority usually fails its candidates. In the last legislature, this affected six proposals. Most recently, an AfD man was turned away last December.

The publication is not influential, but it has great symbolic importance. Speakers of parliament occupy a prominent place in the hierarchy of state leadership. Their work is mainly organizational. She and her deputies preside over the sessions of the House and deal with bills first. Here the AfD called for participation.

This claim could not be dismissed from the outset. The focus of the two procedures in Karlsruhe was the question of what participation rights the Basic Law grants to parliamentarians in said elections.

Article 38, which defines elected representatives as “representatives of all the people”, is fundamental to this. At the same time, the internal rules of the Bundestag stipulate that each parliamentary group is represented in the Presidium by a vice president. It was not clear which bindings develop the provisions in the specific case.

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Therefore, in the first organ dispute procedure, the AfD parliamentary group had demanded that the Bundestag take procedural precautions to rule out negative results for them in the presidential election. However, such an obligation does not exist, the Second Senate, chaired by the Vice President of the Court, Doris König, has now decided by resolution. The complaint was “manifestly unfounded”.

It is true that parliamentary groups, as associations of deputies, have the right under article 38 to participate in parliamentary decision-making. However, this right to participate is effectively limited by the election of the Bundestag Presidium, which is also stipulated in the constitution.

According to the court, the “legitimating added value” could not be achieved otherwise

As a result, the right to participate, which is guaranteed in principle, is subject to the condition that there is actually a majority in the Bundestag for the proposed candidate. The Basic Law “explicitly provides for an election and not a right of occupation that is independent of an election.” The “legitimating added value” associated with an election cannot be achieved if there is a “duty to elect a specific candidate.”

In the court’s opinion, the provisions of the Bundestag’s internal regulations are in line with this: the aim is to represent all parliamentary groups in the parliament’s management structures. However, this provision is also subject to a real choice by the deputies. The so-called basic mandate is designed not as “the right of each faction to the position of vice president, but as the right to nominate a member of parliament for election.”

In the second organ dispute, AfD MP Fabian Jacobi sued. He is of the opinion that even as an individual member of parliament, regardless of his parliamentary group, he has his own right to appoint a deputy president of the Bundestag. However, the Presidium of the Bundestag refused to do so. The court also rejected his claim with a ruling announced on Tuesday: Article 38’s mandate freedom extends to all matters of parliamentary decision-making, in principle also to the presidential election. However, it is justified to restrict the right of proposal in the internal organization of the Bundestag to the parliamentary groups themselves.

MEPs are free to convince their group

Senate President König justified this with the Bundestag’s autonomy in procedural rules, which the courts can only control to a limited extent. In addition, the ability of the Cortes Generales to function is a legal right of constitutional rank equivalent to the rights of individual participation and capable of restricting these rights. Those affected are not unduly harmed as a result. After all, individual MPs are free to convince their group of their own ballot proposal and then present it as a group proposal.

The Bundestag has a wide reach in its constitutionally protected self-organization, he said. The Federal Constitutional Court can only intervene here if its design is clearly inappropriate.

In the Jacobi case there was no evidence of this. The Rules of Procedure had been legitimately interpreted in such a way that the proposals of individual deputy candidates could be rejected. The intrusion on Jacobi’s participation rights, which exist in principle, is also proportional because the restriction to a right of proposal for parliamentary groups could open up an “intergroup potential for understanding and compromise”.

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