Constitutional Judge Müller: “We did not cause the crisis”

Peter Müller was a judge at the Federal Constitutional Court for twelve years, and is now stepping down. In the ARD interview He talks about the court’s budget ruling, party bans and personal plans.

tagesschau.de: Just over a month ago, the Second Senate of the Federal Constitutional Court, with her participation, passed a judgment on the debt brake. Since then there has been a virtual budget crisis in Berlin. Were you aware of the earthquake you were triggering with this verdict?

Peter Müller: The Federal Constitutional Court is required to examine political actions against the standards of the constitution. We did that. In my view, the decision is legally binding. We have fulfilled our role of being guardians of the Constitution. The political consequences resulting from this must now be dealt with by those responsible in Berlin. But we didn’t cause this crisis. The cause of this crisis is the breach of the constitution in the supplementary budget for 2021.

tagesschau.de: Now it was the first judgment on the debt brake, as stated in the Basic Law. You say your verdict was compelling. But in view of these enormous consequences – not only for this supplementary budget for 2021, but also for other special funds – couldn’t one have said: This is unconstitutional, but we are limiting the effect to the future?

Müller: That was a violation of the constitution. And you can’t say: Dear people, you have broken the constitution. But let’s look past that now. You just can’t do it again in the future. We just have to decide, was this law constitutional? That wasn’t it. And then the rule is that this law is void from the start.

tagesschau.de: It’s the rule sequence. But in certain cases, for example, there is also the option for the court to simply declare a law “incompatible with the Basic Law” and determine when it no longer applies. Why wasn’t that considered?

Müller: I think the crucial point is that we are dealing with the question: Does the declaration of invalidity of the law lead to a situation occurring that is even further removed from the constitution than the situation that arises when the invalidity of a legal regulation is determined becomes? That can certainly be the case. But that wasn’t the case here. On the contrary, this was a decision that restored the constitutional situation. This was about assessing a budget law that was passed in the past. The case law on incompatibility does not apply.

“This is not a slap in the face for politics”

tagesschau.de: Now the verdict creates a bit of the impression: Politics is once again too stupid in Berlin, after all, that’s what the Basic Law says with the debt brake. However, it’s not the case that you receive a lawsuit like this, take a quick look at the Basic Law and say the next day that it doesn’t work that way, but that it also takes time for you?

Müller: That’s why I also believe that this thesis, which we hear again and again when we object to a legal regulation, that it is a slap in the face for politics, is wrong. We have time. We have time to ask very fundamental questions: Is a regulation still within the framework of the constitution or is it not? Politics doesn’t have this time. Politicians have to decide on things very quickly and cannot examine things as intensively as we do. Politics is a structural compulsion to superficiality. You can’t blame politics for that. And then there is a risk that things will go wrong.

tagesschau.de: When you moved to the Federal Constitutional Court twelve years ago, there was a lot of criticism. Because shortly before that you were Prime Minister of the CDU in Saarland. Can you understand that some people wonder how politicians are supposed to decide on the unconstitutionality of laws for which they have just made policy?

Müller: I think this is a legitimate debate, it has to be possible, it has to be able to be held. Ultimately, I think the opinion: “Anyone who has been in politics should not become a constitutional judge” is wrong. The opposite is true. If the court’s job is to investigate, what did the legislature want? What did he mean? How do I have to interpret a law so that I know what is the content that I have to measure against the standard of the constitution? Then it is simply advantageous if there is one or two people in every Senate of the Federal Constitutional Court who know how legislation works. Who knows the processes of politics, who knows the inevitabilities. This is enriching for the court. But one thing is clear: the dose makes the poison. These can only ever be individuals.

tagesschau.de: One of the most important decisions that you wrote as a rapporteur in twelve years at the Federal Constitutional Court was certainly the ruling on the NPD ban proceedings. In 2017 you said: the NPD is unconstitutional. But they rejected the requested party ban. On the grounds that the party is too insignificant to endanger democracy. How did that happen?

Müller: Yes, we looked at it closely. We looked at the constitutional protection reports from the individual federal states. We looked at individual situations in individual places and came to the conclusion: the NPD is not capable of a majority anywhere in the parliaments or local councils, and not at the state or federal level anyway. The number of members is declining. The effectiveness in public is minimal. This does not hinder democratic discourse to any relevant extent, and the development prospects are not good either. And then there is no reason to ban such a party.

“The Basic Law wants committed Democrats”

tagesschau.de: When is the right time to ban a party? So to put it another way: Is there a point in time when an anti-constitutional party is perhaps so strong that it can no longer be banned politically or legally or perhaps even purely factually?

Müller: Actually, the primary aim must be to ensure that a situation does not arise in which democracy can only help itself by submitting an application to ban a party. The commitment of the Democrats is required. In Germany, a democracy has already collapsed because too few people were prepared to serve it, because too many people remained silent and looked the other way. And this challenge has not changed. And that, I believe, is also the philosophy of the Basic Law. The Basic Law wants committed Democrats. If there is no other option, then there is the option of banning a party.

tagesschau.de: But if that doesn’t work, is there really still the possibility of banning a party – if we look at history – once a party is in power?

Müller: There is certainly a point at which this tips. Of course, once you “seize power” you won’t be able to turn things around and that’s a question that is then addressed to the applicants in such proceedings. When is the right time to say: Now we have to use the instrument of prohibition?

tagesschau.de: Suppose the federal government comes to you next year and asks you for your expertise because it wants to ban the AfD, which the Federal Office for the Protection of the Constitution has classified as definitely right-wing extremist in many countries. What do you say?

Müller: The question is cleverly integrated. But you will understand: my successors may have to decide on this. I don’t want to influence this in any way by making hasty statements. I just hold back.

tagesschau.de: Your time in Karlsruhe is over. What are you doing now? Are there any plans yet?

Müller: So there are some requests from different areas. From the NGO sector, from journalism, from the legal sector. I want to take a little time, gain a little distance, before I decide what I’m going to do. Two things are certain. First: I will no longer seek a political mandate. You shouldn’t warm up cold coffee. And secondly: I’m not staying completely at home. I can’t expect that from my wife.

The interview was conducted by Kolja Schwartz, SWR

The complete interview You can hear about many other aspects in the ARD audio library in the ARD podcast “The Justice Reporters”.