Law for the Federal Republic of Germany............................ Dr. Ranjeet Kedarta The Basic Law for the Federal Republic of Germany (German: Grundgesetz für die Bundesrepublik Deutschland) is the constitutional law of the Federal Republic of Germany. It was approved on 8 May 1949 in Bonn, and, with the signature of the western Allies of World War II on 12 May, came into effect on 23 May. Its original field of application (German: Geltungsbereich) comprised the states of the Trizone that were initially included in the then West German Federal Republic of Germany, but not West Berlin. The German word Grundgesetz may be translated as either Basic Law or Fundamental Law (Grund is cognate with the English word ground). The term Verfassung (constitution) was not used, as the drafters regarded the Grundgesetz as temporary for the provisional West German state and that a constitution be formally enacted under the provision of Article 146 of the Basic Law for an ultimate reunified Germany. The authors of the Basic Law sought to ensure that a potential dictator would never again have the chance to come into power in the country. Although some of the Basic Law is based on the Weimar republic constitution, the authors also ensured that human rights and human dignity was made the central and core part of the Basic Law. The principles of democracy, republicanism, social responsibility, and federalism are key components of the Basic Law; these principles are constitutionally entrenched, and they cannot be removed or repealed by the normal amendment process. Fundamental rights Main article: Fundamental rights in the German Constitution Fundamental rights (German: Grundrechte) are guaranteed in Germany by the Federal Constitution and in some state constitutions. In the fundamental law most fundamental rights are guaranteed in the first section of the same name (Article 1 to 19). They are subjective public rights with constitutional rank which bind all authorities of the state. For the case that the fundamental rights are violated and also the legal protection before the remaining courts fails, the fundamental law provides with the constitutional complaint an extraordinary appeal to the Federal Constitutional Court (Article 93 paragraphs 1 No. 4a Basic Law). Accordingly to this regulation the Federal Constitutional Court can be called not only against the violation by fundamental rights, but also by violation of the rights set out in paragraphs 4, 33, 38, 101, 103 and 104 of Article 20. Hence, these rights are called the rights identical to fundamental rights. Extensions of the field of application by Article 23 Since initially the Basic Law did not apply for all of Germany, its legal provisions were only valid in its field of application (German: Geltungsbereich des Grundgesetzes für die Bundesrepublik Deutschland). This legal term was frequently used in West German legislation when West German laws did not apply to the entirety of Germany, as was usually the case. Article 23 of the Basic Law provided other German states, initially not included in the field of application of the Basic Law, with the right to declare their accession (Beitritt) at a later date. Therefore although the Basic Law was considered provisional, it allowed more German states to join its field of application. On one side, it gave the Federal Republic of Germany – composed as it was in 1949 – no right to negotiate, reject or deny another German states wish to declare its accession to the FRG; while on the other side an acceding state would have to accept all laws so far legislated under the institutions of the FRG as they were. Article 23, altered after 1990, read as follows: Former Article 23 of the Basic Law for the Federal Republic of Germany For the time being, this Basic Law shall apply in the territory of the Länder of Baden, Bavaria, Bremen, Greater Berlin,Hamburg, Hesse, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Schleswig-Holstein, Württemberg-Baden, and Württemberg-Hohenzollern. In other parts of Germany it shall be put into force on their accession. Whereas the West German state had gained restricted sovereignty in May 1955, the Sarrois rejected in a referendum (1955) the transformation of their protectorate into an independent state. The Saar Treaty then opened the way for the Saar to declare its Beitritt (accession) to the West German state under Article 23, including the new Saarland into the field of application of the Basic Law. With effect of 1 January 1957 the Federal Republic included all of Western Germany (cf. Little Reunification with the Saar). The Communist regime in East Germany fell in 1990; the parliament of the GDR (East Germany) declared the accession of the GDR according to Article 23 to the Federal Republic of Germany, making unification an act unilaterally decided by the last East German parliament. East Germanys declaration of accession (Beitrittserklärung) included the East German territories into the field of application of the Basic Law. After the accession of East Germany to the Federal Republic of Germany Article 23 was repealed. Rather than adopting a new constitution under Article 146 of the Basic Law, the Bundestag (Parliament of Germany) only amended Article 146 and the Preamble of the Basic Law. As part of the process, East Germany, which had been a unitary state since 1952, was re-divided into its initial five partially self-governing states (Bundesländer), being granted equal status as the already existing Länder, with East and West Berlin reuniting into a new city-state (like Bremen and Hamburg). After the changes of the Basic Law, mostly pertaining to the accession in 1990, additional major modifications were made in 1994 (Verfassungsreform), 2002 and 2006 (2006 = Föderalismusreform). Drafting process . The West German minister-presidents debating the Frankfurt Documents in Koblenz German stamp commemorating the work of the Parlamentarischer Rat “ We must be sure that what we construct will some day be a good house for all Germans. ” – Karl Arnold speaking about the objective of the West German Basic Law at the Koenig Museum, 1948 Between February and June 1948, the London 6-Power Conference of the three western occupying powers (USA, United Kingdom, France) and the three Western neighbours of Germany (Netherlands, Belgium, Luxembourg) was debating the political future of the three western occupation zones of Germany. The negotiations ended with the conclusion that a democratic and federal West German state was to be established. As an immediate consequence of the London 6-Power Conference, the representatives of the three western occupation powers on 1 July 1948, convoked the Ministerpräsidenten (minister-presidents) of the West German Länder in Frankfurt/Main and committed to them the so-called Frankfurt Documents (Frankfurter Dokumente). These papers—amongst other points—summoned the Ministerpräsidenten to arrange a constitutional assembly, that should work out a democratic and federal constitution for a West German state. According to Frankfurt Document No 1, the constitution should specify a central power of German government, but nevertheless respect the administration of the Länder and it should contain provisions and guarantees of individual freedom and individual rights of the German people in respect to their government. With the specific request of a federal structure of a future German state the Western Powers followed German constitutional tradition since the foundation of the Reich in 1871. The Ministerpräsidenten were reluctant to fulfill what was expected from them, as they anticipated that the formal foundation of a West German state would mean a permanent disruption of the fatherland. A few days later they convened a conference of their own on Rittersturz ridge near Koblenz. They decided that any of the Frankfurt requirements should only be implemented in a formally provisional way. So the constitutional assembly was to be called Parlamentarischer Rat (lit. parliamentary council) and the constitution given the name of Grundgesetz (basic law) instead of calling it a constitution. By these provisions they made clear, that any West German state was not a definite state for the German people, and that future German self-determination and the reunification of Germany was still on their agenda. The Ministerpräsidenten prevailed and the Western Powers gave in concerning this highly symbolic question. The draft was prepared at the preliminary Herrenchiemsee convention (10 – 23 August 1948) on the Herreninsel in the Chiemsee, a lake in southeastern Bavaria. The delegates at the Convention were appointed by the leaders of the newly formed (or newly reconstituted) Länder (states). Beginning from 1 September 1948 the Parlamentarischer Rat was working out the definite text of the Grundgesetz. The 65 members of the Parlamentarischer Rat were elected by the Parliaments of the German Länder with one deputy representing about 750.000 people. After being passed by the Parliamentary Council assembled at the Museum Koenig in Bonn on 8 May 1949 – the Museum was the only intact building in Bonn large enough to house the assembly – and after being approved by the occupying powers on 12 May 1949, it was ratified by the parliaments of all the Trizonal Länder with the exception of Bavaria. The Landtag of Bavaria rejected the Basic Law mainly because it was seen as not granting sufficient powers to the individual Länder, but at the same time decided that it would still come into force in Bavaria if two-thirds of the other Länder ratified it. On 23 May 1949, the German Basic Law was promulgated and came into force a day later. The time of legal nonentity ended, as the new West German state, the Federal Republic of Germany, came into being, although still under Western occupation. Important differences from the Weimar Constitution Shielded from any public on the secluded Herreninsel (Isle of Lords) in a Bavarian lake the Constitutional Convention at Herrenchiemsee, held in summer 1948 at the monastery Herrenchiemsee Abbey, draw up the draft for the basic law, central part of the constitution of Germany. Basic rights are fundamental to the Basic Law, in contrast to the Weimar Constitution, which listed them merely as state objectives. Pursuant to the mandate to respect human dignity, all state power is directly bound to guarantee these basic rights. Article 1 of the Basic Law (in German legal shorthand GG, for Grundgesetz), which establishes this principle that human dignity is inviolable and that human rights are directly applicable law, as well as the general principles of the state in Article 20 GG, which guarantees democracy, republicanism, social responsibility, federalism, and the right of resistance should anybody undertake to abolish this order, remain under the guarantee of perpetuity stated in Article 79 Paragraph 3, i.e., those two cannot be changed even if the normal amendment process is followed. There are no emergency powers such as those used by the Reichspräsident in the Reichstag Fire Decree of 1933 to suspend basic rights and to remove communist members of the Reichstag from power, an important step for Hitlers Machtergreifung. The suspension of human rights would also be illegal under Articles 20 and 79 GG, as above. And right to resist is permitted against anyone seeking to abolish constitutional order, if other remedies were to fail under Article 20. The constitutional position of the federal government was strengthened, as the Bundespräsident has only a small fraction of the former power of the Reichspräsident. The government now depends only on the parliament. To remove the chancellor, the parliament has to engage in a Constructive Vote of No Confidence (Konstruktives Misstrauensvotum), i.e. the election of a new chancellor. The new procedure was intended to provide more stability than under the Weimar Constitution, when extremists on the left and right would vote to remove a chancellor, without agreeing on a new one, creating a leadership vacuum. In addition it was possible for the parliament to remove individual ministers by a vote of distrust, while it now has to vote against the cabinet as a whole. Article 32 of the Basic Law allows the states to conduct foreign affairs with states with regards to matters falling within their purview, under supervision of the Federal Government. Article 24 states that the Federal Government may transfer sovereign powers to international institutions and Article 25 states that general rules of international law shall be an integral part of federal law. Constitutional institutions The Basic Law established Germany as a parliamentary democracy with separation of powers into executive, legislative, and judicial branches. The executive branch consists of the largely ceremonial Federal President as head of state and the Federal Chancellor, the head of government, normally (but not necessarily) the leader of the largest grouping in the Bundestag. The legislative branch is represented by the Bundestag, elected directly through a mixture of proportional representation and direct mandates, with the German Länder participating in legislation through the Bundesrat, reflecting Germanys federal structure. The judicial branch is headed by the Federal Constitutional Court, which oversees the constitutionality of laws. Presidency In Germanys parliamentary system of government the Federal Chancellor runs the government and the politics of the day. However, the German President has a role which is more than ceremonial. The Federal President, by his actions and public appearances, represents the state itself, its existence, its legitimacy, and unity. The Presidents office involves an integrative role and the control function of upholding the law and the constitution. It has also a political reserve function for times of crisis in the parliamentary system of government. The Federal President gives direction to general political and societal debates and has some important reserve powers in case of political instability (such as those provided for by Article 81 of the Basic Law). Under Article 59 (1) of the Basic Law (German Constitution), the Federal President represents the Federal Republic of Germany in matters of international law, concludes treaties with foreign states on its behalf and accredits diplomats. Furthermore, all federal laws must be signed by the President before they can come into effect; however, he can only veto a law that he believes to violate the constitution. Executive branch[ Cabinet of Germany The Chancellor is the head of government and the most influential figure in German day-to-day politics, as well as the head of the Federal Cabinet, consisting of ministers appointed by the Federal President on the Chancellors suggestion. While every minister governs his department autonomously, the Chancellor may issue overriding policy guidelines. The Chancellor is elected for a full term of the Bundestag and can only be dismissed by parliament electing a successor in a vote of no confidence. Judicial branch[ The guardian of the Basic Law is the German Federal Constitutional Court (Bundesverfassungsgericht) which is both an independent constitutional organ and at the same time part of the judiciary in the sectors of constitutional law and public international law. Its judgements have the legal status of ordinary law. It is required by law to declare statutes as null and void if they are in violation of the Basic Law. The court is famous for nullifying several high-profile laws, passed by large majorities in the parliament. An example is the Luftsicherheitsgesetz, which would have allowed the Bundeswehr to shoot down civilian aircraft in case of a terrorist attack. It was ruled to be in violation of the guarantee of life and human dignity in the Basic Law. The Federal Constitutional Court decides on the constitutionality of laws and government actions under the following circumstances: individual complaint — a suit brought by a person alleging that a law or any action of government violated his or her constitutional rights. All possible solutions in the regular courts must have been exhausted beforehand. referral by regular court — a court can refer the question whether a statute applicable to the case before that court is constitutional. abstract regulation control — the federal government, a government of one of the federal states or a quarter of the Bundestags members can bring suit against a law. In this case the suit need not refer to a specific case of the laws application. The Weimar Constitution did not institute a court with similar powers. When the Basic Law is amended, this has to be done explicitly; the concerning article must be cited. Under Weimar the constitution could be amended without noticing; any law passed with a two-thirds majority vote was not bound by the constitution. Under the Basic Law, the fundamentals of the constitution in Art. 1 GG and Art. 20 GG, as well as elements of the federalist state, cannot be removed. Especially important is the protection of the division of state powers in the three branches, legislative, executive and judicial. This is provided by Art. 20 GG. A clear separation of powers was considered imperative to prevent measures like an over-reaching Enabling act, as happened in Germany in 1933. This act had then given the government legislative powers which effectively finished the Weimar Republic and led to the dictatorship of the Third Reich. Other courts Article 95 establishes the Federal Court of Justice, the Federal Administrative Court, the Federal Finance Court, the Federal Labour Court and the Federal Social Court as supreme courts in their respective areas of jurisdiction. Article 96 authorises the establishment by federal law of the Federal Patent Court, of federal military criminal courts having jurisdiction only in a state of defence or on soldiers serving abroad, and of a federal disciplinary court. Article 92 establishes that all courts other than the federal courts established under the Basic Law are courts of the Länder. General provisions for the judiciary and rights of the accused[edit] Article 97 provides for judicial independence. Article 102 abolishes capital punishment. Article 103 mandates a fair trial, forbids retroactive criminal legislation and multiple punishment for the same criminal act. Article 104 mandates that deprivation of personal liberty must be provided for by statute and authorised by a judge before the end of the day following the arrest (analogous to the common law concept of Habeas corpus), and that a relative or a person in the confidence of the prisoner must be notified of a judicial decision imposing detention. The German Constitution (i.e. the Basic Law of the Federal Republic of Germany) unmistakably outlines the presumption of innocence. Legislative branch[ The main body of the legislative branch is Germanys parliament, the Bundestag, which enacts federal legislation, including the budget. Each member of the Bundestag has the right to initiate legislation, as do the cabinet and the Bundesrat. The Bundestag also elects the Chancellor, the head of government, usually (but not necessarily) the leader of the majority party or the party with a plurality of seats in the Bundestag, and takes part in the election of the Federal President. Bundesrat[edit] The Bundesrat represents the Länder (states) and participates in federal legislation. The Bundesrats power has grown over the years, as the fields of federal legislation were extended at the expense of state legislation. In return, the number of laws requiring the assent of the Bundesrat was also extended. Early elections[edit] The Basic Law contains no clear provision to call early elections. Neither the chancellor nor the Bundestag has the power to call elections, and the president can do so only if the government loses a confidence vote if the chancellor so requests. This was designed to avoid the chronic instability of Weimar Republic governments. However, early elections have been called three times (1972, 1982, and 2005). On the last two occasions this was a controversial move and was referred to the constitutional court for review. In 1972, Chancellor Willy Brandts coalition had lost its majority in the Bundestag, so that the opposition CDU/CSU tried to pass a constructive vote of no confidence, thus electing Rainer Barzel as new chancellor. Surprisingly, two representatives of CDU/CSU voted for SPDs Willy Brandt so that the vote failed. Nevertheless, the coalition had no majority in the Bundestag, so that a new election was necessary. (Later it turned out that the GDR secret service had bribed the two dissenting representatives.) In 1982, Chancellor Helmut Kohl intentionally lost a confidence vote in order to call an early election to strengthen his position in the Bundestag. The constitutional court examined the case, and decided that the vote was valid, but with reservations. It was decided that a vote of no confidence could be engineered only if it were based on an actual legislative impasse. In 2005, Chancellor Gerhard Schröder engineered a defeat in a motion of no confidence after a power shift in the Bundesrat. President Horst Köhler then called elections for 18 September 2005. The constitutional court agreed to the validity of this procedure on 25 August 2005, and the elections duly took place. Role of political parties[ In contrast to Weimar, political parties are explicitly mentioned in the constitution, i.e., officially recognized as important participants in politics. Parties are obliged to adhere to the democratic foundations of the German state. Parties found in violation of this requirement may be abolished by the constitutional court. In the Weimar Republic, the public image of political parties was clearly negative and they were often regarded as vile. At the same time there was no obligation to adhere to democratic standards (in contrast, the Basic Law stipulates that parties ... internal organisation must conform to democratic principles, which precludes any party using the Führerprinzip, even internally.) Other stipulations Role of the military[ The Weimar Constitution contributed to the Reichswehr becoming a state within a state, outside of the control of the parliament or the public. The army directly reported to the President who himself was not dependent on the parliament. Under the Basic Law, during times of peace the Bundeswehr is under the command of the Minister of Defence, during time of war under the Federal Chancellor. The Chancellor is directly responsible to the parliament, the Minister is indirectly responsible to the parliament because it can remove the entire Cabinet by electing a new chancellor. The Basic Law also institutes the parliamentary post of the Wehrbeauftragter (defense commissioner), reporting once a year to parliament, not to the executive. The Wehrbeauftragter is a soldiers ombudsman who can be petitioned directly by soldiers, bypassing the chain of command. Disciplinary measures against soldiers petitioning the Wehrbeauftragter are prohibited. From eleven defense commissioners until 2013 eight performed military or war services. Six hold an officers rank (or reserve officers rank), two of them, as Vizeadmiral Hellmuth Heye, were high-ranking and decorated admirals or generals of the Wehrmacht. Although this is not explicitly spelled out in the Basic Law, a number of Constitutional Court cases in the 1990s established that the military may not be deployed by the government outside of NATO territory without a specific resolution of parliament, which describes the details of the mission and limits its term. There are also strict restrictions on the intervention of the military within Germany (i.e. a ban of the military being used for police-type duties), which generally only allow the military to act in unarmed roles within Germany (such as disaster relief). Referendums and plebiscites[ Unlike the Weimar Constitution, the Basic Law only names referendums, concerning the federal level of legislation, on a single issue: a new delimitation of the federal territory. Baden-Württemberg was founded following a 1952 referendum that approved the fusion of three separate states. In a 1996 referendum the inhabitants of Berlin and Brandenburg rejected a proposed merger of the two states. After referendums on reestablishing to Länder borders as existed in the Weimar Republic all failed, this institution has not been used, as some little border changes can be done by state contract. The denial of referendums in other cases was designed to avoid the kind of populism that allowed the rise of Hitler. Yet Article 20 states that All state authority is derived from the people. It shall be exercised by the people through elections and other votes [Abstimmungen] and through specific legislative, executive and judicial bodies. These other votes – the words are to be understood meaning votes on legislative issues – are, by now, common practice on the level of the Länder. Claims of extending this practice also to the federal level have an undisputed constitutional basis in the Article 20, being the general and unchangeable article on state structure. However, this could only be conferred by a constitutional amendment nevertheless. Amendments Process Article 79 states the Basic Law may be amended by an absolute two-thirds majority of the Bundestag along with a simple two-thirds majority of the Bundesrat, excluding amendment of those areas defined by the eternity clause. History[ The Basic Law has been amended 50 times as of 2003. Important changes to the Basic Law were the re-introduction of conscription and the establishment of the Bundeswehr in 1956. Therefore several articles were introduced into the constitution, e.g., Art. 12a, 17, 45a-c, 65a, 87a-c GG. Another important reform were the introduction in 1968 of emergency competences, for example Art. 115 Paragraph 1 GG. This was done by a grand coalition of the two main political parties CDU/CSU and SPD and was accompanied by heated debate. In the following year there were changes to the articles regarding the distribution of taxes between federal government and the states of Germany. During reunification, the two states discussed the possibility of drafting a new common constitution followed by a plebiscite, as envisioned in Art. 146 (1990), but this path was ultimately not taken. Instead the Federal Republic of Germany and the German Democratic Republic decided to keep the Basic Law with only minor changes, because it had proved to be effective in West Germany. To facilitate reunification and to reassure other states, the FRG made some changes to the Basic Law. Article 23 was fulfilled by reunification itself, and then withdrawn to indicate that there were no other parts of Germany that existed outside of the unified territory. The question of “using″ Article 146 to draw a new constitution, and hold a referendum, was left to the twelfth (and first all-German) Bundestag, who after considering the question decided against a new draft. However, the Bundestag passed the constitutional reform of 1994, a minor change, but still fulfilling the constitutional question together with some other amendments between 1990 and 1994. For example, affirmative action was allowed in womens rights, and environmental protection was made a policy objective of the state in the new Article 20a. In 1992, membership in the European Union was institutionalised (Art. 23 GG). For the privatisation of the railways and the postal service, amendments were necessary as well. Since then, there have only been minor amendments, with the exception of the Balanced Budget Amendment added in 2009, which becomes fully effective in 2016. In 2002, protection of animals was explicitly mentioned in Art. 20a GG. The most controversial debate arose concerning the limitation of the right to asylum in 1993 as in the current version of Art. 16 a GG. This change was later challenged and confirmed in a judgment by the constitutional court. Another controversy was spawned by the limitation of the right to the invulnerability of the private domain (Unverletzlichkeit der Wohnung) by means of acoustic observation (Großer Lauschangriff). This was done by changes to Art. 13 Paragraph 3 and Art. 6 GG. The changes were challenged in the constitutional court, but the judges confirmed the changes. Other changes took place regarding a redistribution of competencies between federal government and the Länder. Dr. Ranjeet Kedarta, HP University Shimla
Posted on: Wed, 17 Dec 2014 14:17:06 +0000
Trending Topics
© 2015