Professor Papier, irrespective of the dramatic developments that have unfolded due to the corona pandemic, our first question to you is: What is the importance of democracy and democratic values for you personally?
Democracy is the only form of government that upholds human dignity and can guarantee this over the long term. Democracy means that all state authority originates from the people and is carried out through elections and votes. But this principle of the sovereignty of the people must also be accompanied by the rule of law. Democracy and the rule of law are inseparable. The organs of state power legitimised by the people are governed by the principle of the separation of powers and have to respect the individual basic law and human rights granted by the constitution. This needs to be overseen by an independent judiciary. The liberal democratic rule of law – not an illiberal democracy – is the defining force behind our constitutional values.
In times like these, democracies across the world are facing the challenge of finding a reasonable balance between freedom and security while operating in ‘crisis mode’. Is the corona crisis putting our democracy to the test?
The constitutional state has the dual function of safeguarding the freedom of its citizens and also protecting their safety through a state monopoly on the use of force. If the constitutional state were to be understood as unilaterally guaranteeing safety without regard for the ideal of freedom, the rule of law would be compromised. It is up to the state and its legislature to establish an appropriate balance between freedom and security. Neither the demand for a better climate protection policy nor the current emergency measures for the protection of the life and health of the population can justify the relinquishment of civil liberties in favour of an authoritarian and surveillance state. It is the duty of the state to protect these important assets, such as the climate and the health and life of its population, and it may do so only through the means of the constitutional state. In this respect, the corona pandemic is certainly a challenge and a test for constitutional democracy.
Instead of a lockdown, restrictions limiting contact between persons have been in place throughout Germany since 23 March. Which measures can be politically mandated under the German Protection against Infection Act and which would be unconstitutional?
The current restrictions preventing people from leaving their homes or coming into contact with others represent a very significant and serious infringement of basic rights. This mainly affects the basic rights to personal freedom in terms of freedom of movement pursuant to Article 2(2) of German basic law and also the basic right to freedom of assembly. These infringements of freedom by the state are only justified if and to the extent that the articles of the basic law in question contain a clause for statutory restrictions and there is statutory authorisation for such restrictions of freedom. In any case, these infringements must comply with the constitutional principle of proportionality. The basic right in its essence cannot be infringed under any circumstances. In my opinion, the current restrictions on going out are still constitutional. The basic right to personal freedom, which is of particular relevance in this context, expressly includes the clause that this basic right may be infringed pursuant to a law. The required statutory authorisation can be found in Section 28(1) of the Protection against Infection Act. Given the acute threat to the health and life of the population, the principle of proportionality is still being upheld, in my view. The constitutional state is in a highly tense situation. On the one hand, it has a duty to safeguard the relevant rights to freedom in principle, specifically the basic right to personal freedom pursuant to Article 2(2) of German basic law. On the other hand, the basic right to life and health is in the same article of the constitution that imposes on the state a duty to protect. If such important goods protected under basic law, such as the life and physical integrity of a substantial part of the population, are seriously threatened, then it is not only the right but also the duty of the state to protect the basic rights of its citizens and impose restrictions on freedom to the extent required for this protection.
Specifically, this means that in order to fulfil its duty to protect the life and health of the population, the state can and must respond with the appropriate, necessary and proportionate restrictions of civil rights. However, even in performing its duty to protect the health of the population, the state is not authorised to impose excessive restrictions on freedom. For example, a complete lockdown that is not limited regionally to specific risk areas nor to a narrow time frame would be a violation of the constitution’s prohibition on excessive measures and would therefore be legally problematic. In other words, I believe that the principle of proportionality would be violated if the state decided to enforce a complete lockdown that is not restricted to any region or limited in terms of time. The existing restrictions would also have to be lifted or significantly eased whenever the risk situation allows. According to the rule of law, all restrictive measures are subject to the judicial control of their legality.
Keyword data protection: Deutsche Telekom is considering whether to provide the Robert Koch Institute (RKI) with anonymised movement data from mobile users. What would be the legal implications of this measure?
If the data is anonymised, I do not believe that the provision of this data would pose any legal concerns. In this case, the individual’s basic right to informational self-determination is not really affected.
According to media reports, the German federal government is planning urgent changes to the Protection against Infection Act – in other words, to increase access rights for the federal government. Is this legally benign or is it an ‘acid test’ for federalism?
German federalism, which is part of the core identity of the constitutional order of the Federal Republic, has been repeatedly discredited in political discourse as an impediment. People are always very quick to make accusations of territorial fragmentation. In reality, Germany’s federalism is also an important factor in democracy and the rule of law, especially for the separation of powers and the people's right to self-determination, which are more easily managed in specific fields in smaller political units than in larger ones. The German Protection against Infection Act may need to be amended in some respects, but the general jurisdiction of the federal states should not be challenged for the purposes of enforcing this federal law, in my opinion. Generally speaking, the federal states are actually in a better position to quickly take local or regional conditions into account.
In the fight against the corona virus, borders are being closed and personal freedoms restricted. Are you concerned that some of these measures will remain permanent and change democracy for good?
The constitution would definitely not allow that to happen. It is already prohibited by the constitutional principle, which allows for the enforcement of restrictions on freedom only within the time frame and to the extent necessary for the protection of higher-ranking or equivalent constitutional goods.
Professor Papier, our seventh question is always a personal one: How has your life changed since the beginning of the corona crisis, and what are your plans for the rest of the year?
I am working exclusively from home at the moment. All of my lectures and meetings have been cancelled. I very much hope that I will be able to carry on with my work again without so many restrictions at the beginning of summer.
Thank you for the interview, Professor Papier!
INTERVIEW Sven Lilienström, Founder of the initiative Faces of Democracy
INITIATIVE FACES OF DEMOCRACY
Since its founding in the spring of 2017, the Faces of Democracy Initiative has been working for a better understanding of democracy, a strengthening of multilateralism, and for an open, pluralistic, and tolerant society. Nearly 80 national and international personalities from politics, media, business, and society—including numerous European heads of state and government—support the initiative. They are all the "faces of democracy.”