Opinion: Applying existing law - without any alternative | Opinion | DW | 15.04.2016
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Opinion: Applying existing law - without any alternative

The chancellor is allowing Turkey's President Erdogan to press charges against satirist Jan Böhmermann under a German law that's historically out-of-date. Merkel is right to want its abolition, says DW's Richard Fuchs.

Chancellor Merkel on Friday once again showed her strengths as an administrator of German state duties. For days, there'd been speculation as to whether the German government would give in to Turkish President Recep Tayyip Erdogan's demands to press personal insult charges against Böhmermann, an anchor with public service broadcaster ZDF, in a German court. Now Merkel has paved the way for German courts to decide whether Böhmermann, by reciting his "abusive poem," actually insulted the Turkish head of state.

Merkel administers current legislation

Merkel's decision to let the rule of law take its course is a sensible one - for multiple reasons. Firstly, she is applying the Federal Republic's current legislation. That includes the controversial Article 103 of the penal code, according to which insulting a foreign head of state can be punished by up to five years in jail, or a fine.

Fuchs Richard Kommentarbild App

Richard Fuchs is a DW correspondent in Berlin

This particular article sounds outdated and obsolete - and that's what it is. It was established at the beginning of the 20th century, in a different Germany. At the time, the law did not take principles of equality all that seriously, and those insulting the powers-that-be had to reckon with the toughest of responses from the ruling elites, who meted out their punishments despotically and arbitrarily. In a modern democracy, such thinking appears to be not merely old-fashioned, but downright undemocratic. It is, therefore, appropriate that the chancellor, having assessed the Böhmermann case, announced that the government intended to get rid of the article in question by 2018. It was "dispensable," Merkel said - thereby putting it mildly.

By the same token, the chancellor has to be commended for not walking into the trap of abandoning the rule-of-law path in the face of the difficult German-Turkish relationship. For this reason, she is insisting that existing law be adhered to - including those parts that, by today's standards, do not at all reflect a modern understanding of legislation. In a nutshell: Regardless of one's perception of the Turkish president as an individual - whether he is felt to be credible, dubious or despotic - punishing him personally for German lawmakers' long-standing failure to scrap this particular section would not be a good model of how to behave in a state governed by the rule of law. Merkel said today that she was convinced of Germany's strength as such a state, and it's exactly this confidence that is the intended message to Turkey and to President Erdogan contained in her response.

A whiff of political extortion - and a learning curve

Since the German government set up an EU-level deal with Turkey to stem the refugee crisis, every issue between Germany and Turkey has quickly reeked of susceptibility to blackmail. Consequently, political commentators all over the country will accuse the chancellor of giving President Erdogan preferential treatment in the Böhmermann case, because she needs his support in dealing with the refugee situation. Such allegations, however, will trail off as soon as judicial proceedings begin, because the trial will offer tremendous opportunities: for a realignment of media and press freedom in Germany.

The contents of Böhmermann's poem may elicit disapproval. The poem may well be called immature, vulgar or even misanthropic. Whether all this is indeed punishable under criminal law remains to be seen - in the course of a trial that will publicly renegotiate the question of where insult in public discourse starts and where it stops, and how we can handle personality rights in a media-dominated society.

All equal before the law

The charm in all of this is that the answers to those questions will then apply not just to sovereign heads and rulers of foreign countries, but to ordinary people as well - no matter whether they hold high office or are just average citizens. For when people find themselves at the receiving end of an insult, it doesn't matter whether the person affected is the chancellor, a pensioner or unemployed. Human dignity cannot be ranked according to a hierarchy. If this notion is eventually upheld via the Böhmermann case, it could turn into a real asset for our democratic culture. For insulting Mr. Erdogan from Ankara must not carry any more weight than telling Mr. Fuchs from Berlin, in words full of scatological language and sexual insinuations, that he's written a load of codswallop.

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