May 24, 2024 - 7:00am

“Whom the gods would destroy, they first make mad” has become something of a worn-out trope, but it comes to mind when observing the current state of Germany. Berlin’s self-destructive energy policy has received plenty of attention, but now the madness is spreading to other sectors.

Take the recently passed “Self-Determination Act”, which allows an individual to change their gender simply by declaring it at a civil registration office. Such a change, however, can become null and void in the case of war and the introduction of mandatory military service, a condition under which a person’s biological male sex would determine whether they serve in the army, regardless of any previous legal recognition as a woman.

The changes don’t stop there. Last week, a law was approved that would downgrade the possession of child sexual abuse material from a felony crime to a misdemeanour. Supposedly, this was done to “respond appropriately and with the necessary flexibility to the large proportion of juvenile offenders”, but it remains unclear why German lawmakers did not simply address this issue separately, instead opting for future leniency towards all offenders regardless of age.

At least as concerning is a proposed legal reform involving an overhaul of the disciplinary law for public servants, with steps taken to remove those deemed “extremists” or engage in activities which are “hostile towards the constitution”.

What makes this law so worrying is that there is no clear definition of what kind of behaviour would fall under the cited categories, with much room left for interpretation. Essentially, this now grants the government the power to punish anyone who dissents, a tendency clearly present in the current administration. That’s because members of the coalition government, including Vice Chancellor Robert Habeck, have shown how thin-skinned they are through numerous lawsuits under the existing legal framework against those who have engaged in humorous or satirical depictions of current ministers.

One case involved an impersonation of Foreign Minister Annalena Baerbock, while another featured a German who rented billboards which poked fun at Green ministers. For now, the courts have sided with freedom of expression, but there is a growing tendency to move power from the courts to the bureaucracy.

Minister of the Interior Nancy Faeser appears to have an especially troubled relationship with freedom of expression. After calling for “hard reactions” by the state against those who dare to mock the government, she is now pushing for this law reform that would allow “extremist” civil servants to be removed from office.

What might seem like a good idea on the surface becomes more problematic when one looks closer at the ambiguous definition of “extremism” being employed. Is it extreme to support or be a member of a legal political party such as Alternative for Germany (AfD) — which was yesterday expelled from the Identity and Democracy group in the European Parliament — or should this already be grounds for getting sacked from the civil service? Federal Envoy for the Police Uli Groetsch certainly thinks so, saying: “It is highly problematic if police officers are members of the AfD.”

Another law the government is pushing for would alter the process for appointing judges at the constitutional court, in an attempt to ensure that no matter how many people vote for the AfD, the party would never have a say in the way key institutions are staffed. What makes this sudden need for a legal change even more suspicious is the very low number of disciplinary proceedings. Out of 190.000 public servants in Germany, 0.2% have been subject to disciplinary proceedings, not a number that indicates that the bureaucracy is a hotbed of extremists planning to overthrow the government. So why is there this sudden urgency to address a problem that, judging by the numbers, barely exists?

Although it is not stated directly, this appears to be a first step towards a two-class legal system in Germany, where right-of-centre voters and civil servants would be treated differently by the law and — where possible — excluded from public service. The government claims this is done in the name of defending democracy, but these practices are characteristic of the exact opposite.

All of this is designed to create a chilling effect, where either private citizens or public servants are discouraged from using their constitutional rights out of fear of being dragged through the courts. The state has deep pockets — so even if someone wins the case, the process itself can be the punishment in terms of time and money. Tyranny is usually capricious, and creating laws that are deliberately ambiguous in order to intimidate people is unworthy of a democracy.


Ralph Schoellhammer is assistant professor of International Relations at Webster University, Vienna.

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