Tag Archives: freedom of speech

Germany – A muzzle for the president? President Gauck and the limits of freedom of speech(es)

The election of Joachim Gauck’s election as Germany’s 11th Federal President was a novelty in many respects. Gauck was not only the first president from the former German Democratic Republic, but also the first non-partisan to ascend to the Germany’s highest office. Gauck himself promised to be ‘an uncomfortable president’ who would voice his opinion more often even if it contradicted the policies of the government or went counter to prevailing public opinion. His remarks towards the far-right were welcomed by public and politicians alike. Yet Gauck’s calls for the need for greater German military involvement abroad and criticism of the possibility of a leftist politician being elected minister-president of Thuringia have been met with opposition. Now coalition politicians are reportedly seeking ways to ‘muzzle’ the ‘uncomfortable president’.

Joachim Gauck during his speech after being elected president | photo via bundespraesident.de | © Jesco Denzel / Presse- und Informationsamt der Bundesregierung

The powers of the German presidency are generally very limited and the role of its incumbents is thus largely ceremonial with very little potential for independent political action. One of the few opportunities for German presidents to influence politics are their speeches and interviews and most office-holders to date have through these been able to install themselves as a ‘moral compass’ in the public debate. Due to his work as a Lutheran pastor, opposition activist and Federal Commissioner for dealing with the records of the Stasi (the secret police of the German Democratic Republic) during the 90s as well as his oratory skills incumbent president Joachim Gauck had been established as a notable public figure even before his election and received overwhelming public support for his candidacies (his first one was unsuccessful) for the country’s highest office. Since his inauguration in March 2012, several of Gauck’s speeches have been met with acclaim (also internationally, e.g. his speech on European integration), just like his clear stance against the extremist far-right. In the latter case, the German Constitutional Court even confirmed that Gauck was allowed to label members and followers of the extremist far-right National Democratic Party (NPD) ‘nutcases’ and had the right to free expression as long as he does not ‘take sides in an arbitrary manner’.

Despite Gauck’s general popularity, German politicians have recently criticised Gauck for overstepping his constitutionally prescribed role. In the first instance, this was due to his speech at the Munich Security Conference in January this year in which he called for greater German military engagement abroad. The German president does not even possess ceremonial powers with regard to the military or foreign policy and elites were thus unhappy with his remarks. The government was also not pleased with Gauck’s interpellations in the wake of the Ukrainian crisis (among others, Gauck accussed Russian president Vladimir Putin of breaking international law) and had to employ great diplomatic effort to keep open a channel of communication with the Russian leadership. It should be mentioned Gauck’s remarks were also unusual for other reasons. The German public is not only traditionally wary having their troops deployed abroad, but Gauck’s pre-predecessor Horst Köhler resigned after he felt unduly criticised for declaring that German military deployments abroad (which are usually labelled as ‘humanitarian’ in the German discourse) also served to secure the country’s economic interests.

President Gauck was faced with second wave of criticism when he told journalists that he would be ‘uncomfortable’ with seeing leftist politician Bodo Ramelow’s being elected as minister-president of the German state of Thuringia. While his remarks were generally less surprising, they too meant means that Gauck entered (politically) uncharted waters. Ramelow is local leader of ‘Die LINKE’ (“The Left”) a successor party to the United Socialist Party (SED) – the GDR’s party of power. While ‘Die LINKE’ has participated in a number of coalition governments in the East German states (and even tolerated a Social Democrat-Green minority government in the West), it has never nominated the minister-president. Given Gauck’s role in the GDR opposition movement – among others he was co-founder of the ‘New Forum’ opposition movement – and his work as Federal Commissioner for dealing with records of the Stasi (the GDR’s secret police) 1990-2000, his criticism of LINKE-led government is understandable. Nevertheless, it is the first time in German post-unification (potentially even post-war) history that a president has taken a public stance on the political situation in one of the 16 German states.

It is thus not a coincidence that it was revealed last week that Peter Gauweiler, a prominent member of parliament for the Christian Social Union (CSU; currently in government), commissioned the parliamentary research service to draft a legal opinion on ‘the competence of the president to make foreign policy statements’ (as Gauweiler’s CSU is fiercely opposed to ‘Die LINKE’, the focus on foreign policy alone is not surprising). The paper, which was leaked to a number of newspapers, clearly states that the president was not allowed to conduct an ‘alternative foreign policy’ and can be required to closely coordinate the content of public statements. While this describes the existing political practice (the general content of speeches is coordinated with the respective government ministries and the Chancellor’s office), the paper seems to open the possibility for a word-by-word coordination which would significantly reduce the presidents ability to influence political and public debates. Nevertheless, the opinion also tends towards rejecting a requirement for countersignature for speeches. While the vast majority of presidential decisions and actions is already subject to countersignature, the currently dominant opinion in legal scholarship argues against it.

It is unlikely that the government of parliamentary majority will initiate any steps towards formally restricting Gauck’s ability to make public statements. Nevertheless, the debate and the fact that the criticism has shifted from the fringes of the political spectrum (radical right and radical left) to mainstream parties should be food for thought for Gauck. While it is unclear whether he wants to seek re-election once his term ends in 2017 (he will be 77 years old by then), he might need be a more ‘comfortable’ president in any case to make sure that his words do not fall on deaf ears among those who can turn them into actions.