Former member of parliament Marcel Luthe has filed an organ complaint with the Berlin Constitutional Court. He accuses the members of parliament of no longer having any democratic legitimacy and yet continuing to “play parliament”.
Franziska Giffey after the election as the new Governing Mayor in the House of Representatives in Berlin on December 21, 2021.
After the Berlin Constitutional Court ruled that last year’s elections were invalid, the House of Representatives must be dissolved immediately. This is what the former state deputy Marcel Luthe demands in an organ lawsuit that was received by the Berlin Constitutional Court on Friday and is available to the NZZ. Luthe belonged to the FDP parliamentary group in the House of Representatives and then to the Free Voters.
Luthe considers it inadmissible that “unelected and therefore not legitimized MPs” continue to make decisions. “If we allow unopposed people to govern this country who are not elected – which has been clear since Thursday – we are burying the principle of democracy and the free-democratic basic order,” explained Luthe.
Luthe filed the organ suit in his capacity as an elected member of the House of Representatives from 2016 to 2021 and thus wants to obtain constitutional clarification. According to the Berlin election law, members of parliament and district councilors lose their seats if the election is declared invalid, argues Luthe. This means that only the previous parliament has democratic legitimacy, he explains, and calls for the 18th House of Representatives (election period 2016 to 2021) to be reinstated before the new elections. “I’m appalled at the people who shrug their shoulders at not being democratically legitimized and now just want to continue playing in parliament,” explains Luthe.
The state of Berlin has a period of 90 days after the decision of the state constitutional court to repeat the elections. Voting is scheduled for February 12, 2023.
Luthe also considers the state government to be illegitimate
On Thursday, the Berlin Constitutional Court declared the September 26, 2021 election to the House of Representatives and the district assemblies invalid due to the many mishaps and irregularities and demanded a complete repetition. From the Court’s point of view, the principles of liberty, universality and equality of choice had been violated.
Even the preparation of the elections did not meet the requirements and was in itself an electoral error that led to further significant electoral errors, the court found. In last year’s polls, there were too few ballot papers in numerous polling stations or wrong ones were handed out, long queues formed, sometimes with waiting times lasting hours, and voters often voted after 6 p.m., sometimes even hours after the official closing time.
In his organ complaint, Luthe demands clarification of the legal consequences of the far-reaching judgment of the State Constitutional Court. The court does not have the right to appoint a parliament, he explains. “This is all the more true since, as is well known, Parliament determines the court.” Not only does the acting House of Representatives no longer have any democratic legitimacy, but the executive should not be allowed to provide such legitimacy either.
SPD wants to continue working despite invalid elections
Luthe demands a judicial clarification “in order to prevent an imminent encroachment on the rights of members of parliament and on the principle of democracy”. In his complaint for organs, he relies on a 1993 ruling by the Hamburg State Constitutional Court, which found that only democratically appointed and elected representatives of the people in the constitutional state are entitled to make political decisions.
After the elections were declared invalid, the SPD parliamentary group leader in the House of Representatives, Raed Saleh, announced: “The House of Representatives and the Senate will continue to work in a concentrated manner in the interests of Berliners until the elections are repeated.”