The former president of the Federal Constitutional Court, Hans-Jürgen Papier, has sharply criticized the conscription law put forward by Defense Minister Boris Pistorius. Speaking to “Welt am Sonntag” Papier stated that he views the legislation as an example of poorly drafted law. He expressed his astonishment that Article 3, Paragraph 2 of the Conscription Law was able to pass through not only the relevant department of the Defense Minister but also the Ministries of Justice and the Interior, all of which are responsible for constitutional compliance. He questioned whether this occurred due to oversight or, worse, a fundamental misunderstanding of the law.
The Conscription Law came into force on January 1st, including an amended Article 3, Paragraph 2. This article mandates that men must obtain a permit from the Armed Forces if they intend to leave the Federal Republic of Germany for more than three months, and this applies until they reach the age of 45. According to the constitutional law professor, this regulation only makes sense if a conscription system is in place; otherwise, it becomes a monitoring requirement. Currently, such a system does not exist, and military service is voluntary. Papier argues that the permit requirement constitutes a serious infringement on freedom rights, rendering it unnecessary and therefore “clearly unconstitutional”.
Papier also found insufficient a correction presented by the Ministry of Defence the previous Thursday, which proposes suspending the legal permit requirement via administrative regulation. He recommended that the law should clearly stipulate that Article 3, Paragraph 2 is only applicable if an active conscription system is introduced. He emphasized that a pillar of the rule of law is the mandatory application of existing laws, preventing the executive branch from unilaterally determining the timing, method, or even validity of a statute. For him, suspending the permit requirement through administrative rule is a “legally very questionable” approach.
Overall, the constitutional lawyer believes the entire situation is not minor. He urged caution, particularly given historical experiences with restricting freedom of movement in previous unjust systems. His main concern is that the state is becoming increasingly unreliable with such a nonsensical provision.