On December 31st, Berlin’s police issued a note to all officers, telling them to not use „insensitive” language in their communications. Tabloid „Bild” quickly lambasted the order to use more „politically correct” terms. But it didn’t pick up the most worrisome aspect of the letter. The reason given therein for calling certain migrants „west asian” instead of „southern” („südländisch”) was that „media hostile to the constitution” („verfassungsfeindliche Medien”) used such „negative” terms.
There are no media in Germany that are hostile to the constitution.
Flashback to 2020. In an interview with leftwing daily „neues deutschland”, Benedikt Lux, the Berlin Greens’ parliamentary group leader, noted that the ruling leftwing coalition had brought in a new police leadership. Here is the full quote: „We have exchanged the complete leadership of all Berlin security authorities and brought in pretty good people. Firefighters, police, the public prosecutor’s office, the office for the protection of the constitution” (Germany’s domestic secret service). „I really hope that the results will be felt in the future.”
The New Year’s police note to all officers may well be such a result.
So Berlin now has a leftwing police leaderhsip, state prosecution and secret service. A formidable power base for politicians who know how to use it.
There is more. On the federal level, a new whistleblower law has been dubbed „Schnüffelgesetz” (colloquial for „spying law”) by rightwing media such as „Tichy’s Einblick”. That’s a scary-sounding name implying that citizens are encouraged to spy on their neighbors.
Initially it was planned as a simple implementation of an EU directive for the protection of whistleblowers who report violations of EU regulations. But Germany’s leftwing coalition changed the wording at the last moment to include violations, or even just criticism of Germany’s fundamental law. Allegations of such acts, even if those acts are not unlawful, and/or indeed unproven, can be used to fire any cicil servant. Allegations will not need to be proven in court. A simple administrative act will suffice to terminate the employment of, say, teachers, policemen, or civil servants working in the state administration.
With that, the law may well become an instrument for a deep political power grab in Germany.
Previously, civil servants could only be fired if a court decided that they opposed Germany’s constitutional order. With the new rule, no court decision and no proof will be needed. Allegations will be enough. Those will be „investigated”. But by administration officials, not by a judge. Victims can fight the decision in court, but at their own expense.
Spying on co-workers and neighbors will not be limited to state organizations. Companies with at least 50 employees are ordered to create – at their own expense - „Meldestellen” – („reporting offices”) were anyone can report anyone if they think they saw, heard or otherwise witnessed something improper.
Originally, this aspect of the law (just as the part regarding civil servants) was intended to protect whistleblowers who signal violations of EU regulations. But the rule regarding violations, or criticism of Germany’ constitution applies here as well. On the state level as well as in the private sector, informants may choose to remain anonymous. Informants may not be fired for any reason until their claims are investigated.
Misuse – making untruthful claims on purpose in order to harm someone – will be punished. But if informants choose to remain anonymous, it remains unclear how they could be identified.
Freedom of speech thus remains protected by the constitution. But if you exercise it, and you are a civil servant, you may lose your job. In the private sector, obviously, no state authority has the power to lay off workers accused of misdeeds.
Now imagine you are a teacher, and that you dislike another teacher in your school – perhaps because you cherish a leftwing world view, and the other comes across as rather conservative. Maybe she or he said something disparaging about the EU? Or the government? Or the gender debate? Just anonymously report him or her.
Or perhaps, in a private company, you envy the job of a colleague and would like it for yourself? Just report them. Or perhaps you fear that you are about to be laid off in your company for whatever reason? Just report on someone. From then on, until the matter is investigated, you cannot be fired.
Bona fide whistleblowers – say, in cases of corruption - do need to be protected. And Germany’s „basic law” is a fine and fairminded one. But interpretations can evolve over time. For instance, it prohibits discrimination based on „sex”. What the authors of the basic law meant by that was that there should be no discrimination between men and women.
But in 2017, Germany’s Constitutional Court ruled that the exclusion of a „third option” besides „male” and „female” in citizens’ legal civil status violated the constitutional right of gender equality. Now, imagine that a colleague at work states his view that there are only two biological sexes, and that marriage should be for man and woman. Although that is in principle a perfectly law-abiding view, he or she may now be reported for being in violation of the constitution. This will not have to be proven in court. Some official may decide that that person can no longer serve the state.
At private companies, employers may not want to be seen as a place with an „uninclusive” corporate culture. Although the whistleblower law says nothing about consequences in the private sector for anyone accused of straying from the basic law, there may well be very serious consequences in real life.
Finally, for political parties, the law opens up new options in their quest for power. To pick a party at random, the Greens for instance could decide to strategically place activists in big companies and state institutions (or to activate those who are already there), and then proceed to report anyone who disagrees with them. The result might be, over time, a political cleansing of state institutions and big companies.
One of the conceptual pillars of the Rule of Law is the assumption of innocence „until proven guilty”. The German law turns that on its head: Although legally, you may still be presumed innocent, materially your existence can be destroyed if you are suspected of „wrong” opinions.
One may be forgiven for suspecting that Germany’s left is trying to capture informal domestic power bases by branding conservatives as „enemies of the constitution” and putting them under material pressure.
At the same time, leftwing NGOs are being coopted into state service. A planned new „Demokratiefördergesetz” (meaning a law to „strengthen democracy”) would secure permanent state financing for NGOs that „fight rightwing extremism”.
„Civil society”, or at least its leftwing camp, would thus become a „state-sponsored society”.
The draft law stipulates that its aim is to enable „third parties” (meaning NGOs) to pursue activities that are „of importance for the state”. „Non-governmental organizations” would thus become de facto state actors.
The backdrop for all this is an alleged planned rightwing coup attempt by two dozen people who dub themselves „Reichsbürger” (meaning citizens of the German empire) last year. They believe the German Federal Republic to be an illegal construct. In that sense, „protecting the constitutional order” against such extremists seems perfectly reasonable.
Police swooped on December 7th in with 3000 officers to make arrests, making sure to inform every media outlet in the country well in advance so they could report on the spot. The alleged coup plan is now used by the government to justify its new laws: Democracy is in danger and needs to be protected.
The coup plot was derided as „bizarre” by domestic and international media. Yet, as Die Welt pointed out, that was also the case with Adolf Hitler’s failed putsch attempt in 1923. However, there can be no serious comparison between these two events. Germany’s democracy in 2023 is not in danger. In 1923, it was.
The new laws now passed (or planned) to protect and strengthen democracy and the constitutional order may prove to be a bigger danger. They herald the advent of an omnipresent, moralizing state keen on punishing those who’s political views are deemed unappropriate.