"I hope society wakes up"

Heribert Prantl, a lawyer and the former Süddeutsche Zeitung politics editor, says the German constitution is coming under strain during the pandemic.

Heribert Prantl<br><br>
Heribert Prantl

Jürgen Bauer

Berliner Zeitung: Mr Prantl, you recently said on a talk show that in your 33 years as a journalist you've never felt as afraid as now. What are you afraid of?

Heribert Prantl: I am afraid for our fundamental rights. I'm worried. Fundamental rights are the most beautiful and most important thing we have in our state. I have the feeling that they are being minimised or pushed aside in the pandemic.  The essence of fundamental rights, however, is that they must be able to withstand a crisis. That's why they're called fundamental rights. They're the beacons that shine in a democracy. It is fatal to believe that they can be left to shine less brightly for a while. But this attitude seems dominant to me when I look at the current political landscape. I could never have imagined that we would experience such significant restrictions on our freedom.

Hans-Jürgen Papier, the former president of the Federal Constitutional Court, said he could never have imagined that such severe restrictions on freedom would be decided by the executive branch. He pointed out that decisions on fundamental rights require a broad social and democratic basis. Policymaking is being determinated by scientists and virologists, but the government must also listen to constitutional lawyers, educators, sociologists, economists and paediatricians. Fundamental rights aren't a bunch of gibberish. In a democratic constitutional state, strength lies in the promise of fundamental rights - especially in times of crisis. The corona policies indequately respect our fundamental rights.

The restrictions can be used as a blueprint for the next disaster.

Restrictions on fundamental rights are not entirely new. We have seen this in the fight against terrorism.

This didn't fall from the sky. We've had restrictions on fundamental rights since the RAF and terrorist era. Even then we were told these were only temporary measures. But these laws are still almost completely in force today.

What restrictions came with the  anti-terrorism laws?

The protection of mail and telecommunications privacy, i.e. article 10 of the Grundgesetz [German constitution], was compromised. Eavesdropping was introduced. The protection of the inviolability of the home was violated by bugging. The system of informants was expanded. The concept of the "crown witness" was introduced. After 9/11, this process continued. "Temporary" laws were introduced, i.e. they said the restrictions only applied for a certain period of time. Then the restrictions were extended and extended and extended. I fear the same now: that the restrictions will become the norm. The restrictions can also be used as a blueprint for the next virus, for the next disaster. But the constitution cannot be subject to a pandemic.

Which fundamental rights have been restricted during the pandemic?

There are rather harmless restrictions such as face masks. This is uncomfortable, but can and must be tolerated. What is problematic are contact bans, where the state suddenly tells us which and how many people we are allowed to meet and where. There are curfews. There are restrictions on the freedom of trade that threaten the livelihoods of restaurant owners, artists, hairdressers. It is a fundamental right to maintain contact with other people. That is the basis of democracy. Freedom of movement is a fundamental right. To be able to earn one's living freely is a fundamental right. Not the right to earn as much money as possible, but the right to be able to earn one's livelihood. The current measures will destroy the livelihoods of hundreds of thousands of people. If you're a civil servant, you have a secure income and it's easy to say: you'll just have to stick it out. I wish that the people deciding on measures would think about the people who could lose their jobs.

It is a fundamental right not to die in isolation.

Which fundamental rights are restricted by the contact ban?

The freedom of the person, the freedom of movement, the right to communicate. Democracy lives from overcoming social distance. Now we are imposing social distance. This is being done with a rigour that I consider dangerous. What we need is not more harshness in the lockdown, but more differentiation. The right to life is a fundamental right - of course. But the means to secure this right must be appropriate, adequate and necessary. It is about moderation and proportionality. We're seeing politicians who want to score points with tough measures, how one politician tries to outdo the other. Fundamental rights are obligatory: they oblige us not to proceed in a generalising, sweeping way, but in a differentiated way. Democracy does not mean lumping everything together.

The contact restrictions have had drastic consequences in retirement homes. What fundamental rights are being violated here?

It is a fundamental right that old people are accompanied and supported. It is a fundamental right that they do not have to die isolated, alone and abandoned. It is part of human dignity that a relative can hold their hand in their final days and hours, if that is what they want. That belongs to the core of human dignity. Human dignity is inviolable. That is the first and most important sentence of the constitution. This sentence was brutally violated, especially during the first phase of lockdown. We created horrific situations in our old people's and nursing homes. If my mother had still been alive - she was in a nursing home - I would have pulled out all the stops, from the Constitutional Court to the European Court of Human Rights, to be allowed to see and accompany her despite corona. It is a fundamental right not to die in isolation.

Another group that is particularly affected are kids and adolescents.

Children don't have a strong lobby fighting for them. There is a right to education. The closure of schools and kindergartens restricts educational opportunities. The rapid and prolonged school closures exacerbate social inequality beyond measure. Children from poorer, educationally deprived backgrounds are hit the hardest. They do not have the opportunity to be well looked after at home. With the closures, educational inequality has drastically worsened. Schools must be reopened as soon as possible, of course with all the necessary precautions. Teaching must take place at school. We have compulsory schooling but, as the corona crisis shows, no school law. But we need exactly this - we need a basic right to school.

If every measure is declared to be without alternative, that's undemocratic.

Are we returning to a class society? Those who can afford it can provide for their children during lockdown. This is also true on a global scale. Rich countries have more opportunities. Are we heading towards global feudalism?

I'm afraid so. Corona has brought to the surface and exacerbated existing conflicts. That is perhaps also the merit of the virus - provided the manager's mantra holds true that there is opportunity in every crisis. The question of the right to life was already an urgent one due to the deaths of refugees we have seen in the Mediterranean. The questions about the necessity of massive state intervention and the role of parliament in this were already pressing in the banking crisis and they will be even more so in the climate crisis. The question of the collection and use of data was also a pressing one after Edward Snowden's revelations. One can go on enumerating the questions, and it is tedious, terribly tedious, to try to find answers.

But one thing has also become clear through corona: whatever answers are sought and found, the seeking and finding must not become authoritarian. The seeking and finding must remain democratic. If every measure is declared to be without alternative, that's undemocratic. We must take the arduous path of listening to and weighing up the multitude of answers. The goal should not just be to fight the virus but also to find a way to do so in a way that preserves the health of democracy and social equilibrium.

Is democracy in danger?

Suddenly, we have bodies that are not mentioned in the constitution that are making decisions about our fundamental rights. In the German legal system, no "council" made up of the state premiers and the chancellor officially exists. It cannot be that Merkel, Laschet and Söder are making decisions behind closed doors and then saying: this is the way it goes now. That is not what the democracy described in our constitution looks like. The second thing that worries me is a kind of corona fundamentalism. Discussion has become very toxic. The viral poison has also taken hold of social discourse. This affects supporters of the measures as much as the opponents. We see acrimonious arguing, not discussion. But democracy lives from the nuances. In a democracy, nothing is without an alternative.

What role should parliaments play? Don't they also feel the pressure to conform to this corona fundamentalism?

It's terrible. Before the lockdown of economic and social life there was self-imposed political lockdown of the parliaments. It was self-castration. Parliaments are supposed to be the place for discussion, for political debate and democratic decisionmaking. Parliaments represent the sovereign. But in this crisis they are playing a secondary role. Questions of life and death are decided by decree, that is, by the executive. This cannot and must not be the case. Precisely these questions must be discussed in parliament. Since this hasn't happened, a sub-legislative parallel legal system was able to emerge. This has had and continues to have unfortunate effects. These unpleasant effects also include the protests against the state's fight against the pandemic, some of which are completely irrational. Parliament is partly to blame for the contrarians. And when it comes to vaccination, there is a suspicion that there has been a major organisational failure on the part of the government in the procurement of vaccines. The EU purchase contracts must be disclosed. An investigating committee must create some transparency. Transparency is essential for a democracy.

A democracy cannot live behind closed doors.

And if that does not succeed?

The Bundestag has so far failed to act appropriately in this historic corona era. The MPs have handed over the sceptre to Merkel and Söder. The Bundestag has tolerated turning on and off fundamental rights by decree - as if a fundamental right could be opened and closed like a tap. Parliament must finally find and assume its proper role.

And if it doesn't?

I hope the judiciary will intervene. The Federal Constitutional Court made clear during the financial crisis that no central decisions may be taken without parliament. There needs to be more public debate, which is fostered by parliamentary deliberation. I hope society will wake up. We, the journalists, must also shout louder. The press has the freedom to defend fundamental rights. Freedom of the press is the only fundamental right granted to a professional group. That is why the media have a special responsibility.

Are the media also under certain pressure to conform?

The media performed well as an early warning system at the beginning of the crisis. Then they became too much of a permanent warning system. We need to discuss the measures and the alternatives. We are not there to parrot the lack of alternatives. Seeking solutions cannot be done in an authoritarian style.

At the moment, critics of government policy are having a hard time. So many people - doctors, lawyers, entrepreneurs - now tell journalists: "You're welcome to write this or that, but please don't write it under my name."

A democracy cannot live behind closed doors. We have to discuss openly what is the right way through the crisis. However, I am concerned that even those who defend fundamental rights must arm themselves. It must not be the case that a defender of fundamental rights is suspected of being a corona denier. Corona deniers are outside the discourse.

Fundamental rights are at the heart of liberal democracies in Western Europe. If we give them up, aren't we moving closer to authoritarian states in which these rights do not apply in full? Russia and Turkey implemented restrictions very quickly. China boasted about how quickly it imposed lockdown on a city of millions of people.

I'm surprised by how many now look with longing eyes to Asia, where the pandemic is being fought with Big Brother methods. But the fight against the pandemic is not just about the health of citizens. It is also about the health of our democracy. Corona has shaken so many things we thought were stable. People were prepared to accept restrictions much more quickly than with the terrorist threat because they feel personally threatened.

But it is an illusion to be able to completely escape illness and pain and viruses, to make them disappear. It is also a matter of integrating them into life, into personal and social life. Coping with them requires more than fighting them with medicines and vaccinations. The struggle for healing and survival is urgent; the search for the right ways to achieve this is indispensable. Privatising and austerity in the care and health sectors has been an aberration and is part of the aforementioned policy of supposed lack of alternatives. Corona has made this muck visible. But in adversity we must also accept to some degree that we are mortal, and believe in the power of hope - that is, a healthy optimism, despite the threat.

For the time during and after corona I hope that people can talk to each other again, that the frightening polarity of people's reactions to corona gives way to listening and discussion.

Heribert Prantl was born in Nittenau, Upper Palatinate, in 1953. After studying law, history and philosophy, he worked as a judge and public prosecutor before switching to journalism at the Süddeutsche Zeitung. He is an honorary professor at the University of Bielefeld. His new book Not und Gebot. Grundrechte in Quarantäne. (Need and Commandment: Basic Rights in Quarantine) will be published in March.

This interview was conducted by Michael Maier.