Sunday, July 15, 2007

Who needs terrorists with…?

Who needs terrorists with leaders like…

Mr. Schäuble.

Do you know Mr. Schäuble? Probably not. Do you know the German famous magazine “Der Spiegel”? Maybe not.

”Spiegel #28/07, ‚Der Preis der Angst’, p. 25:
Der Rechtsstaat, so kann man den Innenminister verstehen, funktioniert nicht mehr…
Dann muss der Rechtsstaat eben dran glauben.
(The Rechtsstaat doesn’t work anymore, the Secretary of Interior can be understood....Therefore the Rechtsstaat has to bite the dust.)”

Rechtsstaat – do you know, what “Rechtsstaat” means?

The Principle of Constitutional State

I. The Principle of constitutional state includes and grants the following aspects:

The Federal Republic of Germany is a "Rechtsstaat". But what is a Rechtsstaat ? The Idea of Rechtsstaat is not new. Already in the 19th century basic elements of a Rechtsstaat were invented as the division of powers, legality of administration and the possibility for everybody to go to a court to claim his rights. But this only was a kind of formal Rechtsstaat. The recent history of Germany has shown, that these provisions aren´t enough to provide justice.

Even the Nazi-Government kept these formal provisions. But it was possible at this time to make a law, to be applied by the institutions of the formal Rechtsstaat which was unjust.

The Grundgesetz strengthened the Rechtsstaat by adding substantial, material contents to the constitution. As it was possible in former times to adjust the fundamental rights by the law, now its only possible to adjust the law to the fundamental rights. As Art. 1 III demands: The following basic rights shall bind the legislature, the executive and the judiciary as direct enforcable law.

After this provision all important decisions of the state need a basis on a statute that has to be legal under the provisions of the Rechtsstaat and the fundamental rights. In particular the Rechtsstaatsprinzip contains the following principles:

· Division of powers

· Hierarchy of laws

· Primacy of codified law (Vorrang des Gesetzes)

· Provision of legality (Vorbehalt des Gesetzes) - Theory of importance

· Principle of propotionality

· Prohibition of retroactive law - protection of confidence

· Principle of exactly defined law

· Guaranteed legal recourse (Art. 19 IV)

· Independence of judges (Art. 97)

· no one may be removed from the jurisdiction of his lawful judge (Art. 101 I 2)

· Existance of the Constitutional Court (Bundesverfassungsgericht)

· Existance of the Constitutional Court (Bundesverfassungsgericht)

· Existance of the Constitutional Court (Bundesverfassungsgericht)

· immediate validity of fundamental rights for all state institutions

II. Impact of the Rechtsstaatsprinzip on the German Law

The Rechtsstaatsprinzip is the one principle with the most important impact on almost every field of law. Not only statutes have to be proved by the Rechtsstaatsprinzip, also administrative decisions and actions as well as court decisions.

To show the importance two very basic impacts will be shown now:

1. The possibility for everyone to go to the constitutional court

One very important impact of the Rechtsstaatsprinzip is everybodies possibility to go to the constitutional court to claim for his constitutional rights. If this opportunity would not be given, the Rechtsstaatsprinzip could not take any effect on the law. If the state would act in a way that does not respect the Rechtsstaatsprinzip and nobody could file an action against it, the state could go on acting in this unjust way without any consequences.

To avoid this and to make the state respect justice, the Grundgesetz provides actions against any kind of constitutional offences. In Art. 93 not only the peoples right to file an action is regulated (Art. 93 I No. 4a). The right to file an action is also given to state institutions with own subjective rights that could not be filed by individuals. E.g. in No. 1 highest Federal Institutions like the Parliament or the government can file an action if they have doubts about the interpretation of the constitution by one of the other federal institutions (E.g. a parliamentary group in the opposition can file an action against a law launched by the majority - of course this forces the Constitutional Court very often to decide political questions; so a decision is not made by over 600 MPs but by 8 Members of the Constitutional Court This fact isoften critizised). In No. 2 the Länder can file an action if there is a disagreement between them and the Federation. In No. 4b also local communities get a right to file.

All kinds of offences against the constition can be checked by the Constitutional Court. Not only offences against basic rights but also offences against the other fundamental principles of the state.

2. The Principle of proportionality

One very important element of the principle of constitional state is the principle of proportionality

All statutes, all adminstrative actions have at least to be proportional. The principle often is the last anchor to protect a right. To point that out: Fundamental rights can legally be limited by a law. Even the Constitution provides this opportunity. (E.g. Art. 8 regulates: All Germans have the right to assemble peacefully and unarmed without prior notification or permission. In the case of outdoor assemblies this right may be restricted by or pursuant to a law.)

After this article the state may restrict the right of outdoor assemblies by a statute, or if there already is this statute the administration e.g. the police can perform particular means at any assembly which offends this law. However neither the law nor the particular means of the administration may offend the Principle of Proportionality. This principle demands that the purpose of the statute or the action has to be fulfilled by an appropriate, necessary and adequate law or action.

This means that a restriction shall only go that far as necessary, not further.

E.g. if there is an outdoor assembly the state could have several means to avoid riots. It could prohibit the whole assembly. This is a appropriate means as it will surely take effect. But is this the only way to avoid riots ? If there is any other action imaginable which could reach this aim as good as a prohibition but which does not totally restrict the right of assembly a prohibition would not be necessesary.

In this particular case one could also think about a restriction to the place where the assebly can meet. If there is a place where riots can easily be controlled it is not necessary to prohibit the whole assembly. It wouls be sufficient to allow the assemply under the condition that ithas to take place at a less dangeraous place (E.g. a demontration of Kurds was replaced by the local authorites of Bonn from the city centre on a saturday to the opposite side of the Rhine)

But at least this less restricting means has also to be adequate. That means that after a comparison of the disadvantages on both sides, the restriction means must not be less important than the restricted right of the assembly.

This principle is to be applied on all law, on all statutes, on all ordninances and of course on all judgements.

(At the moment, the link is not reachable “due to the flooding which occurred in Hull and across Yorkshire on Monday 25 June.”)

”Spiegel #28/07, ‚Der Preis der Angst’, p. 27:
Mit den Kollegen bespricht der Innenminister seinen Plan, das Verfassungsgericht auszuhebeln.
(With other foreign ministers the Secretary of Interior will dicuss his plot to disempower the Constitutional Court)”

Against the Constitutional Court, against the Rechtsstaat...

Germany’s own Secretary of Interior openly and overtly declares the Rechtsstaat as too weak – so conclusion? He is against the Rechtsstaat...

And he is in “good” company: Google search “gegen den Rechtsstaat” (against the Rechtsstaat) shows Schäuble and the RAF (and Jörg Haida, btw)...

i guess, you don’t know the RAF – it was the German terrorist group fiercly fought by Germany in the 80s...

and now, Germany allows her leadership to do exactly the same as the RAF...

and worse...

because you certainly know these famous words:

”‚Nuremberg Diary’, Gilbert, G.M., New York: Farrar, Straus and Company, 1947 (pp. 278-279):

"Why, of course, the people don't want war," Goering shrugged. "Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece. Naturally, the common people don't want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship."

"There is one difference," I pointed out. "In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare wars."

"Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."”

It works the same way in any country, even in Germany...

and it starts with?

All you have to do is tell them they are being attacked”...

Remember? “The recent history of Germany has shown, that these provisions aren´t enough to provide justice” – that exactly was the reason for Germany’s “Grundgesetz [to] strengthen[ed] the Rechtsstaat”.

Each and everyone who attacks the Rechtsstaat goes the way of Hitler, because the Rechtsstaat was invented to protect the country against having to suffer the same fate as Nazi-Germany.

How could that have changed?

20 years ago Germany fought the RAF strictly inside the rules of the Rechtsstaat – and as it turned out, it was the only way to go. Germany got rid off the RAF without paying the price of appointing copies of the RAF as government.

What has changed?

The RAF was much more “effective” than Al-Qaeda, at least regarding Germany, and actually, as the “usual deaths” on our streets show, much less effective than cars and trucks – but the RAF couldn’t convince Germany to betray the Rechtsstaats.

There are two things different to the 80s:

America and the Secretary of Interior.

The first changed from a country, where war was not “biz as usual” to a country, where anything goes with the battle cry of “being attacked” (sounds familiar?)

And America is more than just a country for Germany, she is even more than just a friend – she is the “substitute id” of Germany. While Germany allowed Hitler to change history, America always stood tall against the evil, always defended democracy, always respected the human dignity of the individual as the best protection against dictatorship and (yes!) suffering, so it was much easier to deny the own identity and to copy the White Knight, which works fine...

as long as the Knight remained White...

And the second? The Secretary of Interior?

Wolfgang Schäuble:
"On 12 October 1990, Schäuble was the target of an assassination attempt by 32-year-old Dieter Kaufmann, who took the Smith and Wesson of his father and fired three shots at Schäuble after an election campaign event in Oppenau, injuring a bodyguard and Schäuble's backbone and brain severely. Schäuble has been paralysed and confined to a wheelchair ever since.”

Now, think of everything he says and does again.

“War and peace can hardly be distinguished”, “be able to use military means in extreme situations” and especially his urge to control and monitor everything, to look into private lives and computers...

is easily to understand, when you know “Dieter Kaufmann”, isn’t it?

The man is a VICTIM!

Out of a crowd of faceless people there came a shot – and crippled him for life.

His brain will never forget that, will never forget that he could walk and jump and go everywhere he wants until an evil guy destroyed his life – until Dieter Kaufmann.

His brain will never forget the harmless people around him – not able to protect him against Dieter Kaufmann.

His brain will never forget the bodyguards and policemen around him - not able to protect him against Dieter Kaufmann.

His brain will never forget the judges of Dieter Kaufmann – not able to give back his health.

No, of course he wants to avoid anything like that happen once more – he is a VICTIM and i guess, each and every psychotherapist knows the impact of a trauma like that on a human mind.

But why do the Germans follow? They live in peace since decades, they live in a country with one of the highest life expectancies, where the children can go to school and women can walk at night (mostly) without fear.

Decadence of pampered people?

That’s why they risk freedom, family, finances and future? They know about the destiny of people in nations without democracy and law – remember Russia? Remember China? And especially Hitler-Land?

No one should know the price for betraying democracy better than Germany.

”Spiegel #28/07, ‚Der Preis der Angst’, p. 24:
‚Wenn wir erkannt haben, dass jemand an die Wurzel des Gemeinwesens will’, sagt Schäuble, „dann können wir das doch nicht sehenden Auges hinnehmen.’.
(‚When we see, that someone is attacking the roots of the society, we cannot accept this with open eyes’, says Schäuble.)”

Sir, Yes, Sir!

But for me, the root of our society is democracy, is the respect for the individual, the search for the common good, for freedom and human dignity, all represented and protected only and solely by the Rechtsstaat...

and that, Sir, does not go with Big Brother and killing innocents for protection of innocents”. The “relativity of human dignity” (p. 28), you long for so much (i guess, because you wish, Dieter Kaufmann would have been killed before he could have shot)...

... is nothing else than a "rating" of life - understandable regarding self-preservation, but rating means rating ...

in Life worthy of Life and Life unworthy of Life - and that we know, don't we? Is nothing else than Hitlers attitude towards “untermenschen”.

Nothing else, Mr. Schäuble.

You should know better. Germany should know better.

Btw: For everyone interested in Riverbend – seems she is still alive and healthy and if my wishes could change things...

Yes, guys, that’s the fate of Nobodies, of people like you and me and Riverbend in countries without democracy, without a Rechtsstaat.

Do you really want THAT?


Long Live the Rechtsstaat! Long Live Democracy!


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