Article 3(3) of the German Constitution prohibits discrimination against persons on the basis of various characteristics. Among these prohibited characteristics is that of "race". This is intended to hinder racial discrimination. Although this term was intended as a counter concept to National Socialist racial ideology at the time the constitution was drafted, it proves problematic because there are no different kinds of human "races.”
REFORM PROPOSALS OF TWO PARLIAMENTARY GROUPS
The parliamentary groups of the Left Party and the Alliance 90/The Greens are opposed to this wording and have submitted draft bills to amend the constitution. According to the drafts, the term "race" is to be replaced by "racist". Furthermore, an explicit state obligation to protect against discrimination is to be created and the state's mandate to work toward the elimination of existing disadvantages is to be preserved in the constitution.
The draft bills can be viewed on the Bundestag website here (link) (Left Party) and here (link) (Greens).
PROFESSOR PAYANDEH SUPPORTS THE REFORM PROPOSALS
This past May Prof. Dr. Mehrdad Payandeh was already involved with the reform proposals of the parliamentary groups in the Bundestag. On behalf of the Alliance 90/The Greens parliamentary group, he prepared an expert opinion on their draft and presented it to the parliamentary group. On June 21, 2021, the Bundestag Committee for Legal Affairs and Consumer Protection held a public hearing on the reform proposals. Prof. Payandeh was also invited to attend.
In his statement he supported the proposals. According to Prof. Payandeh, they are to be welcomed without reservation in terms of constitutional policy, as they address a socially important problem and send an important signal in dealing with racial discrimination. They strengthen the constitutional framework for dealing with discrimination and fit into the existing constitutional, international and the European Union law framework. They thus bring the German legal situation into line with international and European law and increase legal clarity.
Prof. Payandeh's written testimony can be accessed here, and a recording of the public hearing can be accessed here.
PROFESSOR PAYANDEH: EXPERT IN THE FIELD OF ANTI-DISCRIMINATION LAW
Prof. Dr. Mehrdad Payandeh, LL.M. (Yale), holds the Chair of International Law, European Law and Public Law at Bucerius Law School. His research interests include, in particular, anti-discrimination law. Due to his expertise in this area, he was elected to the UN Committee on the Elimination of Racial Discrimination in 2020 upon the recommendation of the German government.
