With the votes of the CSU, Free Voters and AfD, the Bavarian state parliament also elected AfD candidates as honorary constitutional judges on Wednesday. In the afternoon there was a vote in the block, i.e. on a list with all the personnel suggestions from all parliamentary groups.
Ultimately, none of the parliamentary groups were in favor of a vote on every individual judge, as there was consensus that this would be constitutionally problematic. Instead, the CSU and FW should have voted against their own candidates in order to prevent the AfD candidates – which they did not do. The MPs from the Greens and SPD, on the other hand, voted against the list of candidates across the board.
The vote was preceded by discussions on how the election of the AfD candidates could be prevented. The basis for the decision was the assessment of VGH President Hans-Joachim Heßler. In a letter to State Parliament President Ilse Aigner (CSU), he came to the conclusion that the “partial non-election” of judicial candidates would “give rise to considerable constitutional uncertainty.” The letter is available to the SZ. It emphasizes the principle that the political balance of power in the state parliament must be reflected in the appointment of judges.
Since this legal situation cannot be changed “from one day to the next”, Parliament must “preserve fundamental rights” so that the Constitutional Court remains operational, said the parliamentary managing director of the CSU, Michael Hofmann, on behalf of the government factions. “A constitutional or judicial crisis is really the last thing we need at this time.” Hofmann spoke of “a really difficult balancing act”. They are prepared to create the legal requirements to change the rules for electing judges in the future.
SPD parliamentary group leader Florian von Brunn showed understanding given the difficult legal situation. Brunn said he “doesn’t blame” the CSU and FW for their stance. The SPD still decided not to vote for “the new Nazis in this country.” The mistake was not to change the current regulation sooner. Green Parliamentary Secretary Jürgen Mistol announced that his group would present a draft law to “make the organs of our constitution resilient” against enemies of the constitution with a view to future judicial elections.
According to the current legal situation, all parliamentary groups are allowed to send a certain number of judges to the Bavarian Constitutional Court (VGH) depending on their size. The AfD is entitled to two positions (including deputies) as “non-professional constitutional judges” who are not allowed to have a mandate in the state parliament. 15 such judges complement the 22 professional judges in the chambers of the Constitutional Court, which is responsible for interpreting and upholding the state constitution. The AfD candidates were already approved by the state parliament in the last legislative session.
The same AfD candidates have now been re-elected: the former senior public prosecutor Wolfram Schubert and the Weilheim lawyer Rüdiger Imgart. In the summer of 2020, Imgart mingled with those demonstrators who wanted to storm the Reichstag during Corona protests in Berlin. Imgart said he just wanted to get an idea of the demo, but didn’t agree to “obscure demands.”
The election of the honorary constitutional judges took place on Wednesday on the day on which the state parliament commemorated the victims of National Socialism in a memorial act. In the evening, the CSU, FW, Greens and SPD took a joint stand against right-wing extremism. In a joint emergency motion directed against the AfD, the four parliamentary groups condemn any “effort to deliberately weaken, damage and delegitimize democracy in Bavaria and the organs of our Bavarian democracy.”
“You want to undermine this state, you want to destroy it,” said CSU parliamentary group leader Klaus Holetschek in the direction of the AfD during the associated debate. FW parliamentary group leader Florian Streibl announced that they would “continue to oppose any anti-constitutional actions by extremist forces at an early stage in the future.” Johannes Becher (Greens) said: “Anyone who despises parliament should not sit in parliament.” And SPD parliamentary group leader Brunn described the AfD as “misanthropes.”
AfD parliamentary group vice-president Martin Böhm defended himself. “It is not us who are discrediting the state institutions,” but rather his party is being excluded from positions “to which we have a legitimate claim,” said Böhm, who declared in the course of the discussion about the controversial AfD MP Daniel Halemba that it was “legitimate political The aim is to damage State Parliament President Aigner. One consideration was therefore to have Halemba, who was still wanted with an arrest warrant in October, arrested in parliament in a high-profile manner.
In the debate, Richard Graupner (AfD) called this a “loose thought by one of our group members” that was being stylized as a threat to the rule of law. He accused the other factions of “anti-right hysteria”. His party colleague Böhm refused to apologize to Aigner on Wednesday.