Anti-demo law threatens innocent

Press, 2 August 1983, Page 19

Anti-demo law threatens innocent

Controversy over the West German Government’s plans to tighten the law governing demonstrations is growing, both within the CentreRight coalition and outside it. The junior coalition partner, the liberal Free Democratic Party, is trapped by an agreement after the March elections that the law needed amending, but it is still far from happy at the present outcome.

Under compromise proposals presented to the Cabinet this month the police will have the power to arrest anyone who refuses to leave the scene of a demonstration which turns violent. There will be only one defence, that an arrested person was actually trying to pacify other participants — but the burden of proof will be on the defendant. lhe Free Democrats, through their Justice Minister, Hans Engel-

hard, wanted it to be an absolute defence but were outmanoeuvred by the Interior Ministry, under the control of the Right-wing Bavarian, Friedrich Zimmermann.

The liberals’ parliamentary spokesman on home affairs has lashed out at the way Zimmermann bulldozed his proposals into the Cabinet Co-operation between the liberals and the Christian Democratic Union and its Bavarian sister party, the Christian Social Union, was now non-existent in legal and home policies, he said. Inside the Justice Ministry itself, there is still hope that the draft bill can be amended — or even buried — when it gets the committee stage of the Lwwer House, the Bundestag.

Although the Justice Committee is dominated by the conservative parties, the key member is a liberal and it is thought likely he might accept amendments to return the onus of proof to the prosecution.

Apart from the question of whether the police actually need new powers to deal with demonstrations which get out of hand, it is this matter of where the burden of proof should lie which has excited most adverse comment on the draft bill.

One of the strongest critics outside the Government is the president of the Federal Supreme Court, Professor Gerd Pfeiffer, who has gone public in a virtually unprece-

dented way. Writing in the news magazine “Der Spiegel,” Judge Pfeiffer acknowledges that the present law sometimes creates difficulties for the authorities in convicting “violent rowdies” who commit criminal actions while protected by the anonymity of the crowd. Even so, he says, it cannot be right for the State to turn all peaceful participants in a demonstration into criminals just to convict the violent few. “A regulation which allows this is hardly compatible with the principle of being innocent until proven guilty,” he adds.

“The present proposals take into account the balance between the civil rights of the indivi-

dual and the State’s right to prosecution. Just the opposite: it could easily bring about the situation that a dozen rowdies will succeed in taking away the right to demonstrate from thousands of peaceful people.” Judge Pfeiffer also questions how the law will be implemented. Are thousands of demonstrators to be led away “like prisoners of war”? he asks. Or will the police merely grab an arbitrary few from the crowd? “A criminal law which cannot be properly enforced shakes the trust in the over-all legal order,” he says. The judge’s intervention has attracted wide criticism, even from

those who agree with him, such as the Justice Ministry. A spokesman pointed out what “Der Spiegel” did not — that Judge Pfeiffer is a member of the opposition Social Democrats and although as a private person he had a right to his opinion, it was questionable whether he should express it publicly as a judge. It was a matter of the separation of powers: the judiciary should not be seen to be involved in the drafting of laws. The Christian Democrats went further, saying Judge Pfeiffer had involved himself in a party political matter, which placed a question mark over his impartiality. It is a measure of the strength of feeling over the proposed law that the judge was prepared to put himself in such an equivocal posiA*tion. — Copyright, London Observer Service.