The former President of the Federal Constitutional Court, Hans-Jürgen Papier, has strongly criticized the conscription law proposed by Defense Minister Boris Pistorius (SPD). Speaking to “Welt am Sonntag” Papier stated, “This is a prime example of legislation that is technically inadequate”. He expressed his disbelief regarding how Paragraph 3, Subsection 2 of the conscription law could pass through not only the responsible ministry of defense but also the ministries of justice and the interior, all of which are responsible for upholding the constitution. He suggested that the defect was either overlooked or, even worse, fundamentally misunderstood.
The conscription law, which took effect on January 1st, included an amended Paragraph 3, Subsection 2. This provision mandates that men must obtain approval from the armed forces if they wish to leave the Federal Republic of Germany for more than three months, a rule that applies until they reach the age of 45. The legal scholar argues that this regulation only makes sense if a conscription system is in place, suggesting that the system should be subject to monitoring. Currently, however, service is voluntary, so such a requirement for approval is essentially meaningless. According to Papier, this requirement constitutes a severe infringement on freedom rights when no conscription exists, rendering it “clearly unconstitutional”.
Papier also deemed inadequate a correction presented by the defense ministry on Thursday, which proposes suspending the mandatory statutory approval requirement through an administrative regulation. “My recommendation would be for the law to clearly state that Paragraph 3, Subsection 2 is only applicable when an active conscription is introduced” the professor advised. He explained that a cornerstone of the rule of law is that existing laws must be applied, meaning the executive branch cannot unilaterally decide when, how, or if a law is to be enforced. Suspending the approval requirement via an administrative ruling, he stated, is an “extremely questionable procedural step in terms of the rule of law”.
Overall, the legal scholar warned that the situation is not a minor issue. He noted that based on past experiences with restricting freedom of movement in previous illegitimate regimes, caution is paramount when such limitations are considered. Papier concluded with his concern that, “with such a nonsensical provision, the state is becoming increasingly unbelievable. That is my fear”.
