The Constitutional Court of Hamburg almost always stops popular initiatives, at the request of the Senate. The President of the Court, Birgit Voss Kühler, explains why.
This was the end: activists of the popular initiative for an unconditional basic income in 2023 before the Constitutional Court of Hamburg Photo: dpa/Ulrich Perrey
taz: Mrs Voß Kühler, do you agree with this statement: in Hamburg it has become almost impossible to start a popular initiative that you do not stop?
Birgit Vosscooler: I do not agree with the statement. The only thing that matters is whether the popular initiative is compatible with the higher law.
But the last referendum took place more than a decade ago. Since he took office in 2020, he has stopped the five popular initiatives presented to him and three more are currently awaiting his verdict.
Yes, the Constitutional Court did not consider the recently presented popular initiatives legally compliant. The initiatives were so flawed that we had to come to this conclusion. But this had very different reasons in the different procedures; Each sentence is an individual decision. There is no anti-popular attitude behind this.
Isn't it an unfair obstacle that popular initiatives present bills that not even the authorities always manage to present?
First of all, the referendum law offers two possibilities: on the one hand, bills can be presented and put to a vote. If a law is passed by referendum, it comes into force with the same effect as any law passed by parliament. It then links state bodies and citizens. In its interest, a law formulated by popular initiative must meet the same requirements as a parliamentary law. This has nothing to do with “justice” towards popular initiatives, but is a matter of the rule of law. Bills must be appropriate to a popular initiative in Hamburg, fit into the complex legal system and be formulated in accordance with constitutional requirements.
What does that mean specifically?
Aged 61, she has been president of the Hamburg Constitutional Court since 2020. She has also been president of the Hamburg State Labor Court since 2021.
Legislative proposals can only be put to the vote by popular initiatives in Hamburg if they can be approved at the state level. Therefore, it must first be found out whether another level, such as the federal government, is responsible for implementing a political project. And if a project can be regulated at the state level and the limits of the state constitution for popular initiatives are maintained, the initiative must formulate a law that is consistent with the higher law, especially the law at the federal level. Turning a political concern into an initiative, i.e. turning the political idea into a law that fits into this corset, is not easy.
And is it easier the other way around?
In addition to the legislative proposals, so-called “other models” are possible. They are aimed at specific and selective actions, as opposed to an abstract and long-term law. The original idea behind the opening of these two roads was that the people should be able to make decisions in the same way as citizens. Parliaments can also pass laws, on the one hand, and simple resolutions, on the other, asking the government to act on a specific issue. However, such a simple decision is not binding; rather it is a signal to the government that Parliament considers it necessary to take action on the matter. With the referendum law, as introduced in 1996, there was also a call for a referendum.
But is that different today?
Originally, the other popular legislation proposals were not binding like citizen resolutions. If the Hamburg Senate tells the citizens in simple parliamentary resolutions: “I don't want it” or “I want it another way”, then it proceeds as it sees fit: simple citizens' resolutions do not bind it. In 2008, however, the Constitution was modified and the other models were given binding force: since the constitutional amendment came into force, the Senate and citizens have been linked to other models and obliged to implement them.
So this path is easier for popular initiatives and, if successful, also binding on those in government?
The next hearing of the Constitutional Court on a lawsuit by the Hamburg Senate against a popular initiative will be known on Friday of next week.
The popular initiative “Hamburg without advertising” wants to massively limit the number of digital advertising spaces in Hamburg. An advertising regulation law aims to reduce light pollution and stop the privatization and commercialization of public spaces.
The number of advertising spaces. on public land in Hamburg has more than quadrupled since 2010.
The binding effect of other models, which were introduced in favor of referendums, means that the requirements have become higher: other models can now only contain those obligations that are legally permitted by the responsible state body; Normally it can be implemented through the Senate. A different proposal may only be put to a vote if what is required complies with the legal system. Therefore, the legal requirements are no less for other templates. It may be a little less complex to launch another template. Ultimately, choosing the path for a popular initiative depends on what it wants to achieve.
Now it is always the Hamburg Senate that brings initiatives to its court and therefore wants to stop them. “The Senate sues for everything” is a phrase often said in recent years by people involved in popular initiatives. Is there really nothing like that?
It is true that in recent years the Senate has brought the series of referendums you mention to the Constitutional Court. It should be noted that the Senate must follow the requirement of the Referendum Law to submit popular initiatives to the court for review whenever there are significant doubts about their compatibility with higher-ranking laws. And it should be noted that the Senate's doubts have always been confirmed in the procedure decided so far. What bothers me about the statement “The Senate sues for everything” is that it accuses the Senate of pursuing the goal of preventing popular legislation. This is not the case. A prior examination of legality prevents the people from approving a law or voting in favor of a bill that later turns out to be illegal. That would generate a lot of frustration.
You have already mentioned these “important doubts” in the law, which are a condition for initiating a process. But it seems like a very broad term that the Senate can exploit to its advantage.
“Significant doubts” about compatibility with higher legislation are not a prerequisite for a Senate lawsuit before the Constitutional Court. The Senate, like citizens and one fifth of their representatives, has the right to initiate proceedings before the Constitutional Court, even if there are simple doubts about legality. The idea behind the rule, which requires the Senate to submit the initiative to the court for consideration if there are significant doubts, is that it should not be subject to the Senate's discretion over whether or not to take action against a popular initiative. It should not be able to allow initiatives that suit it politically to pass, despite considerable doubts about their constitutionality.
From your legal perspective, do initiators often make the same obvious mistakes?
A common mistake is to start an initiative in an area in which Hamburg, as a federal state, has no competence. But every time we review a popular initiative, we work through a catalog of evidence and in our decisions we also make statements about points of evidence that are ultimately unimportant.
Because?
We do this because we also consider it our task to create clarity for future popular initiatives. We intensely discuss the decisions throughout the committee; each sentence of a decision is confirmed by the members of the Constitutional Court. We are very aware of the importance of our decisions. Popular legislation is a powerful but also very demanding instrument that must be treated with respect and care by popular initiatives and the Constitutional Court.