The limit imposed by the Basic Law to public relations activities and electoral campaigning can also be infringed
if the federal government’s official publications, although they are confined to providing objective information to
the citizenry, that is, without identifying their contents or presentation as campaigning measures, serve to benefit
their own objective of having a given political party staying in power, because that is done in the pre-election
period. This type of information does not appear on the political stage because it can only be viewed in the context
of finding consistency in clear situations. The fact that the government is periodically informing the citizenry of
its achievements and successes on the basis of public relations activities, has impacts whose consequence also
involves favoring political parties that are part of the government. This is not unconstitutional as long as the
publication concerned is not directly related to the pre-election period and therefore exerts a limited influence as
campaigning in elections. Nevertheless, the federal government would infringe its ban on interfering in the
election’s outcome by the citizenry for the benefit of a given political party or promoting its continued power, if it
were to publish, during the pre-electoral period, material that would, because of its contents or presentation, be
banned, especially if it appeared, ostentatiously and in large amounts, in the form of reports relative to the
administration, productivity, and achievements or that it did not prevent its distribution for purposes of
campaigning during the elections.
When this limit is overstepped, the probable influence exerted by said publications on shaping the voters’ political
opinion can no longer be justified by the Constitution, but exactly when the boundary is crossed cannot be
ascertained in general. It depends, above all, on the number and scope of the measures, the proximity to the
election period, and the intensity of the electoral campaign. The closer the publications are to the start of the “hot
phase” of the campaigning, the fewer are the possibilities of dismissing their impacts on the outcome of the
election. Because of that, here the government’s duty and competence of providing citizens with objective
information on past political facts, events, and achievements must be confined, to the extent possible, to
supporting the duty to continue shaping the people’s the will for the elections without state intrusion. The federal
government’s obligation to refrain from exerting any partisan influence in the elections must ultimately lead to
the utmost moderation and the banning of any work of transparency on the basis of the state’s assets in the shape
of so-called working reports, performance reports, or results reports. In the “hot phase of the electoral campaign,”
this type of publication generally acquires the character of partisan means of advertising in the electoral contest,
which the government is forbidden to engage in, according to the Constitution (…)
Which also might indicate that there is a partisan intrusion in the electoral campaign if the federal government
publicly states its intent to “remain in office,” because it is providing positive reports about what it has fulfilled
and achieved during its administration, and thus it is assuring that it is the only one that can offer guarantees for
a safe future and it is doing that during the pre-election period. (…) In the period prior to the elections, using
government funds in the amount of 10 million German marks, the federal government made a series of large-scale
announcements in newspapers and magazines, violating the principle of neutrality, which exerted a partisan
impact on the federal elections. 52
67. The Constitutional Court of Guatemala, in one case, also declared that the former spouse of the President in
office at the time, could not participate as a candidate to the presidency, as Article 186(c) of the Constitution
establishes that no kin up to the fourth degree of consanguinity and second degree of affinity to the president
or vice-president of the Republic when he or she is currently in office can stand as a candidate for the office of
president or vice-president of the Republic. In said ruling, it made observations that are relevant to the instant
case:
(…) since the middle of the past century until now, there has been a ban on those who are next of kin of the
president of the republic to stand for election to this office. It is also relevant here to infer that the drafters of those
texts intended to prevent dynastic succession or nepotism regarding the office of president of the republic and to
thus uphold the principle of political rotation for the above-mentioned office. Contemporary world history and
modern trends in history have been advocating the above-mentioned principle, so as to prevent undue
prolongations in the exercise of power, which of course foster the emergence of dictatorships in which the right
to live in an authentic democracy is notoriously constrained, and the same holds true for basic rights the adequate
enjoyment of which is to be guaranteed in a democratic regime.
52
(…) When applying this method of interpretation (purposive) to the contents of subparagraph (c) of Article 186
of the Constitution, the same conclusion was reached as the one drawn by the Constitutional Court on the same
principle in the advisory opinion of the sixteenth of November nineteen hundred eighty nine (case file 212-89),
Federal Constitutional Court of Germany, Judgment BVerfGE 44, 125, V-1.