BERLIN -- A law that would have excluded small left-wing parties from an all-German parliament was declared unconstitutional yesterday by West Germany's highest court.
The Federal Constitutional Court ruled that West Germany's election law discriminated against certain small East German political parties -- primarily the former Communists and leftist citizens' movements. To prevent these parties from being overwhelmed by bigger West German parties, the court said, East and West Germany must have separate election districts.
The law had said that parties must get more than 5 percent of the vote across all of Germany to be allowed to enter parliament. It also allowed small parties to make alliances with bigger parties in order to get over the 5 percent hurdle, providing that the parties did not run candidates in the same districts. In practice, this would have allowed only the right-wing German Social Union to enter parliament, because it had a West German ally. But the rule would have kept the left-wing parties out in the cold.
The court said it was unfair that some parties would be able to enter parliament just because they had West German allies. The court said small parties should be allowed to ally with any party -- not just non-competing parties -- paving the way for the citizens' movements, which helped overthrow the Communist government last fall, to ally themselves with the Greens. This wouldhave been impossible under the election rule, because the two parties plan to run candidates in the same districts.
As for the 5 percent hurdle, the court said that a minimum was acceptable in order to keep splinter parties out of parliament, but it said that for the first all-German elections it would have to be applied separately. There could be a 5 percent minimum for West German territory and one for East German territory, but not one for the entire nation, the court ruled, because East German parties haven't had the time or money to organize nationally.
West German Interior Minister Wolfgang Schaeuble said he was working on a new law that should meet the court's recommendations. The law must be passed by Oct. 16, the latest date that an election is allowed to be called if the government wants to keep to its timetable of having all-German elections Dec. 2.
"We're willing to follow the court's guidelines," Mr. Schaeuble said. "We've already had contacts over the telephone with the other parties. The elections should take place on Dec. 2."
Gregor Gysi, chairman of the former Communists, now the Party of Democratic Socialism, was in an exuberant mood after hearing of the decision, saying it meant "new life" for his party, which attracts considerable support, but only in East Germany.
He said West German Chancellor Helmut Kohl would have to "get used to the idea of sitting in parliament with us," Mr. Gysi said.
If the court hadn't overturned the election law, Mr. Gysi's party probably would have been the biggest loser. It polled 16.32 percent of the vote in national East German elections in March. But spread out across all of Germany, this would amount to only 3.5 percent. Spurned by all West German parties, the PDS would have been excluded.
By contrast, the German Social Union got only 6.27 percent in the March election, which would be only 1.3 percent across all of Germany. But the party had managed to make an alliance with the West German Christian Social Union, and this would have given it the muscle to clear the 5 percent hurdle and enter parliament.
The court's recommendation for separate East German and West German voting districts probably would allow both parties to enter parliament since both probably would get at least 5 percent of the East German vote.
The biggest loser in all this could be the Social Democrats, who face a further splintering of the leftist vote. Now they have to compete for similar voters not only with the Greens but also with the citizens' movements and the former Communists. Their chances of defeating Mr. Kohl were already slim but now appear to be virtually nil, especially as they have ruled out a coalition with the former Communists.