How does the executive check the judiciary
Separation of powers in danger : The executive branch currently has extreme power, it cannot last
The strong state is in demand in the corona crisis. This means that the executive controls what is happening. Federal and state governments make decisions on a daily basis that deeply interfere with the fundamental rights of citizens: the fundamental right to freedom of the person, freedom of assembly, freedom of movement, the right to exercise a profession.
The current restrictions on these freedoms would have been unthinkable until recently. Just like the provision of "bazooka" rescue packages in the billions.
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So far, the population has largely had the confidence that these cuts, following the recommendations of virologists, are sensible to protect our health and are legal.
But the longer these conditions last and the more severe they may be, the more the question of their legitimacy and proportionality will arise.
Who should control the government when parliamentarians are in quarantine?
But who asks and controls government action? These are actually the Bundestag and the state parliaments as well as the independent judiciary. But these are just as affected by the pandemic, which limits their ability to work: The Bundestag, after all, an assembly of now 709 people's representatives, fears about its functionality.
Many MPs are already in quarantine at home and cannot take part in votes. The week of the Bundestag session was shortened, most of the topics were removed from the agenda, except for decisions on the corona crisis and on missions abroad whose mandates are about to expire. Courts also drastically reduce their work.
So far we have not had a constitutional crisis, but rather a technical problem. How can processes be organized in such a way that parliaments and courts continue to work without endangering their members' health? The Bundestag wants to temporarily change its rules of procedure so that it has a quorum when 25 percent of the MPs are present - in order to maintain the majority, all parliamentary groups should then send fewer MPs to vote.
The Federal Constitutional Court is still spreading normality
The Federal Constitutional Court is also still spreading relative normality: in an urgent decision it has just rejected the complaint of two lawyers who wanted to force suspend criminal proceedings because of the risk of corona infection. However, the Ministry of Justice is now examining an extension of the interruption of criminal proceedings.
But the situation is changing rapidly. Then you might come up with the idea of resorting to emergency regulations, in which a state parliament can be replaced by an emergency parliament or a special committee for certain cases. According to constitutional lawyers, however, these regulations are problematic. Since it is often not precisely defined in which situation they could be used. The parliamentary groups must therefore cooperate creatively and constructively and find ways to ensure their ability to work. This is also a school leaving examination for our parliamentarians.
Prime ministers must resist political competition
And the executive must ensure that it uses its power wisely. So far this has mostly been the case. A balancing element in this case is certainly federalism. On the one hand it leads to cacophony, on the other hand it also leads to a division of labor between the federal government and state leaders. The latter must resist the temptation to want to show strength at any cost, as this scores points in times of crisis.
The respective governments could explain their considerations and decisions even more and more systematically than before. What speaks for one measure, what speaks for the other? How is success measured? What are the indicators that have to be met in order to remove restrictions again?
Maximum transparency in times when normal and exceptional situations seem to flow into one another. So that the citizens can follow and not feel like subjects. Because then they could refuse to obey. Therefore, the opposition, the media and the public can and must question the executive's policy. Because the pandemic is an exceptional social situation, we can all feel it. But it must not become a political state of emergency.
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