Lawyer on AfD report: “Ethnic-origin-based concept of people” is not unconstitutional
The report, in which the Federal Office for the Protection of the Constitution classifies the AfD as "certainly right-wing extremist," was supposed to remain classified. At least, that was what the Interior Ministry under Nancy Faeser ( SPD ) had announced. Faeser's successor, Alexander Dobrindt of the CSU , wanted to have the publication reviewed. But on Tuesday, the magazine Cicero posted the entire secret document online. Now anyone can get an idea of the work of the intelligence service and the positions of numerous party members – the 1,100-page report is available to all citizens.
This will also intensify the debate about the AfD's alleged anti-constitutional nature and a possible ban on the party. Is the entire party truly "right-wing extremist"? The Berliner Zeitung interviewed constitutional lawyer Hubertus Gersdorf. He holds the chair for constitutional and administrative law and media law at the Faculty of Law at the University of Leipzig .
"The standard for classifying a political party as 'confirmed right-wing extremist' ultimately corresponds to the standard of our Basic Law for a ban on political parties by the Federal Constitutional Court ," says Gersdorf. Very high hurdles apply to such a ban. It requires "that a party, based on its goals or the behavior of its supporters, is aimed at impairing or eliminating the free democratic basic order or endangering the existence of the Federal Republic of Germany."
The free democratic basic order encompasses several central principles, explains Gersdorf. These include the guarantee of human dignity and fundamental equality before the law. In addition, there are the principles of democracy and the rule of law, control by independent courts, and the state's monopoly on the use of force.
"The accusation of an 'ethnic-based concept of the people' is not sufficient to constitute a violation of the free democratic basic order, specifically the guarantee of human dignity," the constitutional lawyer emphasized. However, this is precisely what the Federal Office for the Protection of the Constitution is raising against the AfD; it is a central aspect of the report. Nancy Faeser further justified the party's upgrade by arguing that the AfD advocates an ethnic concept of the people that discriminates against entire population groups and treats citizens with a migration background as second-class Germans.
It is constitutionally permissible to "link citizenship law to descent," says Hubertus Gersdorf. The principle of descent, according to which a child receives the citizenship of its parents—or at least one parent—regardless of the place of birth, is "a globally recognized, permissible criterion for citizenship law and also applied in Germany until 2000." Only then was the principle of place of birth introduced here, according to which children born in Germany to foreign parents could acquire German citizenship under certain conditions.
"However, the principle of birthplace is not constitutionally prescribed," says Gersdorf. "The design of citizenship law, and thus also the choice between the principle of descent and the principle of birth, is the responsibility of the legislature, which decides on this based on political considerations." The Basic Law does not recognize a constitutional concept of the people. "The legislature determines who belongs to the German people according to political criteria." Therefore, it is permissible to demand a return to the principle of descent in citizenship law. "One may judge such a demand politically however one wishes. It does not violate the free democratic basic order," emphasizes Gersdorf.
Among other things, the AfD is accused of distinguishing between Germans with and without a migration history—that is, between "Germans" and "passport Germans." Such differentiation actually violates the guarantee of human dignity and thus the free democratic basic order, explains Gersdorf. "This applies to the law of descent as well as to all other legal areas. According to our constitution, there are no two classes of Germans. Germans are Germans, regardless of how they became Germans." Demanding a "remigration" of so-called passport Germans would be incompatible with the free democratic basic order.
However, the constitutional lawyer does not see in many of the quotations listed by the Federal Office for the Protection of the Constitution “an inadmissible distinction between ‘first- and second-class Germans’”.
Rather, the "constitutionally permissible demand for a change in citizenship law" would be made, according to Gersdorf. For example, if the – quote – "exploded naturalizations in recent years" or "a mass without solid cohesion from all countries of the world" were denounced. According to Gersdorf, the statement that "pure passport Germans" also "unfortunately" belong to the German people also reflects "the political demand for a return to the former principle of descent, which is constitutionally permissible, and therefore does not violate the free democratic basic order." The same applies to the statement: "There's more to being German than simply having a citizenship certificate in your hand." Or: "This nation doesn't deserve to be filled with immigration and no longer have any money for our own citizens."
All of these are statements “that imply a return to the old citizenship law, but do not justify classifying the AfD as definitely right-wing extremist,” says Gersdorf.
Even if statements made by individual party members are racist and unconstitutional, the accusation of a violation of the free democratic order is only justified "if these statements reflect the party's 'basic tendency'." The courts will now decide on this. The AfD is legally challenging the classification by the Office for the Protection of the Constitution. The Cologne Administrative Court is currently reviewing an urgent application from the party. Until a decision is made, the intelligence agency has pledged to remain silent and will not publicly communicate the upgrade for the time being.
Berliner-zeitung
