geändert / updated: 17/04/08


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(Lawmaking; 06-02; p.4)

The majority's opinion that the second round had not happened "because the Bundesrat's president had no right to question and absolutely not in the form, it took place" (par. 155) could in respect to not-granting the right "not convince" (par. 170); the implication of partiality was "not applicable" (par. 170).

One may prove the majority's flawed conclusion by firstly considering the following form of the argument as appropriate:
(A) If asked again, the asked have the chance to correct their vote;
(B) Asking again was illegal;
(A+B) Thus, the correction of voting was illegal (cf. par. 169).
- In this form the conclusion is incorrect, the faulty reasoning is named "denying the antecedent": just because one of perhaps several possible conditions (A) is not given, it does not follow that the consequence (A+B) is not.
The condition stated becomes limited by the judges' majority as follows: instead of "if asked again", they set "only if legally asked again" (cf. ibid.). - The conclusion described above this way becomes correct; but the limitation is not allowed in the opinion of the minority: the right to correct a vote could "be violated, but not annihilated" (par. 169).

In addition, a Land could correct a vote until the end of the voting process (par. 167) and the Bundesrat's president might consider a Land to be willing to vote; therefore an undemanded second questioning was allowed and not partial (par. 170).
The criterion established by the judges' majority that posing a question again is to be considered illegal, if one could foresee that an unanimous vote would not be reached during the session (par. 143) was furthermore "everything else than clear and therefore unsuitable as constitutional standard to measure the behaviour of the Bundesrat's president" (par. 172; cf. also par. 171).

The second round of voting had been opened by the question of the Bundesrat's president and had closed with a consent of the Land Brandenburg's delegate, minister-president Stolpe; "a no-vote had not been given anymore" (par. 177), because the utterance of another Brandenburg delegate, minister Schönbohm, was not to be considered as a clear vote (par. 178f.). (read on here)

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