Basic Law for the Federal Republic of Germany
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The Basic Law for the Federal Republic of Germany (German: Grundgesetz für die Bundesrepublik Deutschland) is the constitution[1] of Germany. It was formally approved on May 8, 1949 and, with the signature of the Allies, came into effect on May 23, 1949 as the de facto constitution of West Germany.
The German word Grundgesetz may be translated as either Basic Law or Fundamental Law. The term Verfassung (constitution) was not used, as the drafters regarded the Grundgesetz as a provisional document, to be replaced by the constitution of a future united Germany. This was not possible in the context of the Cold War and the communist orientation of the Soviet sector of Germany, which later in 1949 proclaimed itself the German Democratic Republic, dividing Germany into two states.
Forty years later, in 1990, Germany finally reunified when the states of the GDR peacefully joined the West German Federal Republic of Germany. After reunification, the Basic Law remained in force, having proved itself as a stable foundation for the thriving democracy in West Germany that had emerged from the ruins of World War II. Some changes were made to the law in 1990, mostly pertaining to reunification, such as to the preamble. Additional major amendments to and modifications of the Basic Law were made in 1994, 2002 and 2006.
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Drafting process
The idea for the creation of the Basic Law came originally from the three western occupying powers. In view of the Nazi usurpation of Germany's prewar Weimar Constitution, they made their approval of the creation of a new German state conditional on:
- a complete rejection of the ideology that the German people are a master race (German: Herrenrasse) — superior to others, born to be leaders, and entitled to commit genocide, or barbaric treatment of those not belonging to it;
- an unequivocal commitment to the inviolability and inalienability of human rights.
The draft was prepared at the Herrenchiemsee Convent (10 August 1948 – 23 August 1948) on the Herreninsel in Chiemsee, a lake in southeastern Bavaria. The delegates at the Convent were appointed by the leaders of the newly formed Länder (states). After being passed by the parliamentary council assembling at the Museum Koenig in Bonn (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 (12 May 1949), it was ratified by every parliament of the Länder with the exception of Bavaria (Bayern). 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 German state, the Federal Republic of Germany, came into being.
Important differences from the Weimar Constitution
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 shall be 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 as those of the Reichspräsident, which were used 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 Hitler's Machtergreifung. The suspension of human rights would also be illegal by Articles 20 and 79 GG, as above.
The constitutional position of the federal government was strengthened, as the Bundespräsident has only a small fraction of the 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, where extremists on the left and right would cooperate to remove a chancellor, without agreeing on a new one, creating a leadership vacuum. In addition it was possible for the parliament to remove single ministers by a vote of distrust while it now has to vote against the cabinet as a whole.
Constitutional institutions
The Basic Law established Germany as a parliamentary democracy with separation of powers into executive, legislative, and judicial branches. The legislative branch reflects Germany's federal structure in which the German Länder were to be represented in the upper house of parliament, the Bundesrat. The lower chamber, the Bundestag, was to be elected directly through a mixture of proportional representation and direct mandates. The head of government is the chancellor, normally (but not necessarily) the leader of the largest grouping in the Bundestag, while the head of state is the nonpartisan and largely ceremonial president. The Federal Constitutional Court oversees the constitutionality of laws. Many of the Basic Law's provisions contrast strongly with those of the Weimar Constitution.
Presidency
The German Bundespräsident (federal president) is the head of state. It is largely ceremonial position with only a small role in daily politics. Whereas the Weimar Constitution provided the president with far reaching executive powers, turning him into a de facto substitute emperor, the federal president is now limited in favor of the cabinet and the parliament. His main function is representative and ceremonial, though he remains the formal head of state, signs laws before they can enter into force and appoints federal officials. In contrast to the Weimar president, the new federal president can neither take the initiative to dissolve the Bundestag nor name a new chancellor without a prior majority vote in the parliament.
Executive branch
The Chancellor, elected by the Bundestag, is head of the executive branch. He or she heads the federal Cabinet.
Judicial branch: Federal Constitutional Court
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 can 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 remedies available 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 third of the Bundestag's members can bring suit against a law. In this case the suit need not refer to a specific case of the law's 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.
Legislative branch
The legislative branch consists of two chambers, the Bundesrat, representing the states, and the directly elected Bundestag. The Bundestag elects the Chancellor, the head of government, who usually but not necessarily is the leader of the majority party or the party with a plurality of seats in the Bundestag.
Bundesrat
Germany's upper chamber of parliament, the Bundesrat, represents the Länder (~States). It has great influence in legislation, whereas the Reichsrat of Weimar only had a suspensive veto over legislation passed by the parliament. However, a major difference between the two systems is the relative size of the German Länder. During the Weimar Republic, most of Germany's population and 60 percent of its land area was held by a single state, Prussia; its smallest state, Schaumburg-Lippe, had a population of only tens of thousands. A 1932 coup in Prussia, the Preußenschlag, did much to destabilize Germany as a whole, leading to Hitler's seizure of power months later. In contrast, while widely varied in size and population, today's Bundesländer are strictly regional entities.
Bundestag
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 Basis Law stipulates that parties' "... internal organisation must conform to democratic principles", which precludes any party using the Führerprinzip, even internally.) Extremist parties with anti-constitutional agendas like the communists (KPD), right-wing conservatives (DNVP) or the Nazis (NSDAP) could increase their influence without much opposition.
Other stipulations
Role of the military
The Weimar Constitution contributed to the Reichswehr becoming a state inside 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 reports to the secretary of defence, during time of war to the chancellor. The chancellor is directly responsible to the parliament, the secretary is indirectly responsible to the parliament because it can remove the government by electing a new chancellor. The Basic Law also institutes the parliamentary post of the Wehrbeauftragter, reporting 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.
Although this is not explicitly spelled out in the Basic Law, a number of Constitutional Court cases in the 1990s established that the army 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.
Referenda and plebiscites
Unlike the Weimar Constitution, the Basic Law only allows referenda on a single issue: changing borders of the Länder. 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. The denial of referenda in other cases was designed to avoid the kind of populism that allowed the rise of Hitler.
Development since 1949
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 possibility of drafting of a new common constitution by the two states and a subsequent plebiscite, as envisioned in Art. 146 (1990), was discussed but was 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 146 was amended so that Article 23 of 1990 version of the constitution could be used to acquire further territories. Then, once the five new federal states of East Germany had joined, the Basic Law was amended again to indicate that there were no other parts of Germany, that existed outside of the unified territory.[2][3]
Since then there have only been some minor changes. In 1992 membership in the European Union was institutionalised (Art. 23 GG), in 1994 and 2002 environmental protection and animal protection were included in Art. 20a GG as policy objectives of state. 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.
Early elections
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 Brandt's coalition had lost its majority in the Bundestag, so that the opposition CDU/CSU tried to do a constructive vote of no confidence, thus electing Rainer Barzel as new chancellor. Surprisingly, two representative of CDU/CSU voted for SPD's 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 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 August 25, 2005 and the elections duly took place.
See also
Former Constitutions
- Constitution of the German Empire (1871-1919)
- Weimar Constitution (1919-1933)
- Constitution of the German Democratic Republic (German Democratic Republic; GDR, 1949-1990)
Others
- Bremen clause
- Bundesrechnungshof
- German Emergency Acts
- History of Germany
- Politics of Germany
Footnotes
- ↑ Deutscher Bundestag: Grundgesetz
- ↑ Johnson, Edward Elwyn. International law aspects of the German refunification alternative answers to the German question. Page 11 footnote 18, and Page 26.
- ↑ periodic reports of States parties due in 1993 International Covenant on Civil and Political Rights (CCPR), 22 February 1996. Introduction: paragraph 6.
External links
- Full text:
- official English translation (updated: June 2008)
- Original text: HTML, PDF, non-official table of contents (status: August 2006)
- Former Constitutions:
- Constitution of the German Empire (1871-1919). In English. Full text from Wikisource.
- Constitution of the Weimar Republic (1919-1933). In English, as HTML file.
- Excerpts from the 1968 Constitution of the GDR. In English, as HTML file.
- Other links:
- Introduction to the basic and the constitutional law (on JurisPedia).
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