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Organstreit proceedings on the “Federal Convention” without success
Press Release No. 50/2014 of 10 June 2014
Judgment of 10 June 2014
2 BvE 2/09, 2 BvE 2/10
The re-election of Horst Köhler as Federal President by the 13th Federal Convention (Bundesversammlung) on 23 May 2009 and the election of Christian Wulff as Federal President by the 14th Federal Convention on 30 June 2010 do not meet with objections under constitutional law. This was decided by the Second Senate of the Federal Constitutional Court in a judgment delivered today. The applications by a member of the two Federal Conventions, which were directed against the Federal Conventions and against the President of the Bundestag as their chair, were thus unsuccessful.
Facts of the Case:
1. The 13th Federal Convention convened on 23 May 2009. It had 1,224 members, namely the 612 members of the Bundestag and 612 members elected by the parliaments of the Laender (federal states). In the parliaments of 10 Laender, only one list of candidates, which had been jointly drawn up by all groups represented in the respective parliament, was put to the vote. The lists contained substitute candidates, which were listed separately for each parliamentary group. The day before the Federal Convention, the applicant, the parties who joined the proceedings, and another member of the Federal Convention submitted written motions to adopt rules of procedure for the Federal Convention and to include the item "Presentation of the Candidates" on the agenda. Later, a motion to adopt rules of procedure was made by the majority of the members of the Federal Convention, requesting that the German Bundestag's Rules of Procedure be applied correspondingly, with the stipulation that procedural and other motions could only be made in writing, and that there were no oral explanations or debate.
In the Federal Convention, the President of the Bundestag, as chair of the Federal Convention, first ascertained the presence of a quorum; he then declared that in the absence of rules of procedure, there was no basis for requests for leave to speak and for debates. Subsequently, he put the majority's motion to the vote; it was adopted by the Federal Convention. The President of the Bundestag did not admit the motion to give each candidate the opportunity to present him- or herself for up to 30 minutes.
2. The 14th Federal Convention, which convened on 30 June 2010, had 1,244 members, namely the 622 members of the Bundestag and 622 members elected by the parliaments of the federal states. Again, in 10 state parliaments, a single list of candidates was put to the vote, with substitute candidates listed separately according to parliamentary groups. The applicant and the parties who joined the proceedings submitted three written motions, announcing that they would state their reasons orally. The majority of the Federal Convention's members submitted a joint written motion for rules of procedure which corresponded to those adopted by the 13th Federal Convention.
The President of the Bundestag did not permit the applicant's first motion, which challenged the legal validity of the election of the Federal Convention's members in 10 Laender, and did not allow that reasons for the motion be stated orally. Subsequently, the President of the Bundestag put the majority's motion to the vote; it was adopted. Neither did the President of the Bundestag permit the applicant's second motion, which called for every candidate to be given the opportunity to present him- or herself for up to 30 minutes. The applicant's third motion, which called for permitting the nomination of "election observers", was put to the vote by the President of the Bundestag without a prior opportunity to state reasons. The Federal Convention denied the motion.
Key Considerations of the Senate:
1. The applications concerning the validity of the election of the Federal President and the composition of the Federal Convention are inadmissible.
a) The applications are impermissible insofar as the applicant seeks that the election of the Federal President be declared invalid and a repeat election be ordered, and in the alternative seeks a declaration that the election is invalid and that a repeat election would have had to be held. In Organstreit proceedings [proceedings relating to disputes between constitutional organs], the Federal Constitutional Court establishes whether the challenged act or omission violates a provision of the Basic Law. A decision in Organstreit proceedings cannot have constitutive effect or oblige the respondent to adopt a certain conduct. Findings which change the legal relations between the parties are impermissible as well.
b) Insofar as the applicant challenges the incorrect composition of the Federal Convention, he has not substantiated that, as a member of the Federal Convention, an organ of the state, he might have a constitutional right to challenge the election of the delegates sent to the Federal Convention by other Laender, and thus to have the composition of the Federal Convention reviewed. Legal protection regarding errors in the election of the delegates by the state parliaments is only granted pursuant to § 5 of the Act on the Election of the Federal President by the Federal Convention (Gesetz über die Wahl des Bundespräsidenten durch die Bundesversammlung - BPräsWahlG). Pursuant to the Act, every member of the respective Landtag (state parliament) and every listed candidate is entitled to lodge an objection. The applicant does not belong to this group of persons; he does not contest the election in the Landtag of Mecklenburg-West Pomerania, of which he is a member, but the mode of election in other Laender. Nor can the applicant invoke any other rights as a member of an organ. Apart from the cases mentioned in § 5 BPräsWahlG, the Federal Convention is neither obliged nor authorised to decide on the validity of the election of its members. The applicant assumes that the constitutional organs have such a right to review this issue themselves as a matter of course; this, however, is not the case.
2. The applicant's applications claiming a right to speak and to bring motions in the Federal Convention are unfounded.
a) Pursuant to Art. 54 sec. 1 GG, it is the exclusive task of the Federal Convention to elect the Federal President. It is merely an organ that creates another organ. Therefore, the status of the members of the Federal Convention cannot be assessed separately from the position granted to the Federal President by the Basic Law. The drafters of the Basic Law designed the office of Federal President following their experiences with the Weimar Reich Constitution. The Federal President's office is shaped in such a way that he or she belongs to none of the three classical powers, but embodies the unity of the state. The authority and the dignity of the office are expressed by the fact that it is largely based on the President's intellectual and moral impact. The election procedure corresponds to this position. Particular attention has been paid to the way in which the election itself is organised. Apart from electing the Federal President, the Federal Convention is called to emphasise the particular dignity of the office in its procedures.
Against this backdrop, one cannot resort to the rights of the members of the German Bundestag in order to determine the rights of the members of the Federal Convention. Unlike in the Bundestag, the course of the procedures in the Federal Convention is largely pre-determined. In the same vein, there is no provision in the Basic Law according to which the Federal Convention adopts its own rules of procedure. Publicity has a different function for the Federal Convention than for the Bundestag. What is decisive is the visibility of the act of voting with its real and symbolic aspects; a public debate is not intended.
b) Pursuant to Art. 54 sec. 1 sentence 1 of the Basic Law (Grundgesetz - GG), the members of the Federal Convention are granted (only) the right to elect the Federal President. This includes their right to participate in the election by casting their votes, and the right to have their votes counted pursuant to Art. 54 sec. 6 GG and the principles of free and equal election. Pursuant to Art. 54 sec. 1 GG, the election takes place "without debate". Accordingly, the members of the Federal Convention are not entitled to debate on personalities or policies about, or with, the candidates. The prohibition of debates protects the dignity of the voting act, which is intended to be detached from party-political dispute. The prohibition therefore applies not only to the members of the Federal Convention but also to the candidates. In order to allow the Federal Convention to properly comply with its tasks, its members are called to acquire the information that is necessary for their electoral decisions outside the Federal Convention.
Rights of participation of the members of the Federal Convention that go beyond the actual right to vote can, if at all, only apply insofar as they are necessary to exercise the right to vote. The course of the Federal Convention can be influenced by its members by adopting rules of procedure and by electing an Electoral Board. These powers, however, do not follow from a right conferred on them by the Constitution; they merely result from § 8 sentence 2 BPräsWahlG, which has been enacted on the basis of Art. 54 sec. 7 GG. The casting and the counting of the votes generally do not require a right to speak and to bring motions. Moreover, a debate is not prohibited, but also not required by the Constitution. Instead, Art. 54 sec. 7 GG provides that the details of the election procedure shall be regulated by ordinary law.
c) As chair of the Federal Convention, it is the task of the President of the Bundestag to ensure that the election takes place correctly. In this function, he has further-reaching powers than when chairing sittings of the Bundestag. The only task of the Federal Convention is to elect the Federal President. Accordingly, the Convention's chair shall not put to the vote at least those motions which do not concern the organisation of the election as such, or which are clearly not consistent with the Constitution, and thus preserves the ceremonial and symbolical significance of the voting act. The chair of the Federal Convention is authorised to examine the admissibility of the motions according to these standards without having given the floor to the motion's originator.
However, the Federal Convention's chair must take into account the equal status of the members of the Federal Convention. Their rights encompass both the right to have their votes count equally, and the right to equal participation in the organisation of the election. With regard to the powers of the President of the Bundestag, this means that he or she must decide on the admissibility of motions in a way that is free from arbitrariness, i.e. not guided by irrelevant considerations.
d) aa) According to these standards, the President of the Bundestag was entitled to examine the admissibility of the motion to include in the agenda of the 13th Federal Convention the item "Presentation of the Candidates". Such a presentation would have violated the prohibition of a debate pursuant to Art. 54 sec. 1 sentence 1 GG. In order to allow the Federal Convention to properly fulfil their tasks, it was therefore necessary not to put this motion to the vote. The same applies to the amendment of the rules of procedure of the 14th Federal Convention sought by the applicant.
bb) The President of the Bundestag did not violate the applicant's rights by not putting to the vote his motion to exclude members of the Federal Convention because their elections in the state parliaments had been incorrect. By dealing with this motion, the Federal Convention would have usurped a competence which it does not possess under the Basic Law.
cc) The applications are unfounded insofar as the applicant claims that his right to speak was violated by the decisions on the rules of procedure taken in the respective Federal Conventions. As a general rule, the Basic Law does not grant the members of the Federal Convention a right to speak.
dd) The President of the Bundestag did not violate the applicant's rights by not giving him leave to speak in order to substantiate his motions. This applies in particular to the motions to exclude members, which were inadmissible from the outset. Nor was the President of the Bundestag obliged to admit oral contributions before the decision on rules of procedure. If it is already discernible that the Federal Convention intends to adopt its own rules of procedure, the Rules of Procedure of the German Bundestag, which provide for such a right to speak, are from the outset not applicable.
There is no need to decide on which fundamental rules of procedure the chair of the Federal Convention must always comply with. At any rate, there are no concerns regarding the actual actions of the President of the Bundestag because the procedural motion brought by the majority of the Federal Convention clearly aimed at not admitting any oral contributions at all in the Federal Convention. This would have been undone if the President of the Bundestag had given the applicant leave to speak before voting on this motion.
Nor was the President of the Bundestag obliged to give the applicant leave to orally substantiate his motion for the nomination of "election observers" in the 14th Federal Convention. In this respect, the President of the Bundestag acted in compliance with the rules of procedure that had previously been adopted; the provision in the rules of procedure that motions could only be submitted and substantiated in writing is not objectionable under constitutional law, and did not leave him any discretion.
3. Insofar as the applicant contests the Federal Convention's denial of his motion to permit the nomination of an "election observer", who was to be present at the counting of votes in the 14th Federal Convention, this application is unfounded. In preliminary injunction proceedings concerning the 15th Federal Convention, the Federal Constitutional Court held in 2012 that a member of the Federal Convention is clearly not entitled to such a right. It argued that the Basic Law has not conferred on the members of the Federal Convention the right to participate as "election observers" in the counting of votes and the determination of the election result after each ballot. Neither does the principle of the public nature of the election demand that the nominators of candidates may nominate "election observers".