Basic Law for the Federal Republic of Germany

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File:Preamble Grundgesetz.jpg
Preamble of the Grundgesetz

The Basic Law for the Federal Republic of Germany (German: Grundgesetz für die Bundesrepublik Deutschland) is the constitution of modern Germany. It first came into effect in 1949 as the constitution of West Germany.

The German word Grundgesetz may be translated as either 'Basic Law' or 'Fundamental Law'. The usual word for 'constitution' in German is Verfassung but Grundgesetz was chosen for the title of the document adopted in 1949 in order to suggest that both the new constitution, and the West German state it created, were merely provisional and would serve only until the achievement of reunification. The belief at the time was that this would not take long; however, the emergence of the Cold War caused the division of Germany to last forty years.

In 1990 reunification came about in the form of East Germany joining the Federal Republic. Since this time the Basic Law has continued in force as the constitution of all of Germany. The Basic Law has not been renamed but some changes with respect to reunification were made in 1991 and 1994.

History

The Basic Law was adopted in the aftermath of World War II while West Germany was still under allied occupation. The first state of the creation of a democracy in the western areas of Germany was that the individual West German states, or Länder, were given constitutions. The new constitution for West Germany was originally to be drafted by a constituent assembly and submitted to a plebiscite for ratification. However, for the same reasons that the document was ultimately called a 'basic law' and not a 'constitution', the leaders of the Länder insisted that the drafting body be called the 'Parliamentary Council' and that plans for a referendum be abandoned.

When it met the Parliamentary Council consisted of delegates elected by the parliaments of each Land. After being passed by the council and approved by the occupying powers the Basic Law was submitted to the governments of the Länder for ratification, it having been provided that the document would not come into effect until it had been ratified by at least two-thirds of the states. After meeting these requirements the enactment of the Basic Law was proclaimed on May 23 1949.

First sentence of the Basic Law

Art. 1, paragraph 1 - Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt. (official translation: Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.)

Content

Important differences to the Weimar Constitution

Basic rights are fundamental to the Basic Law, very much in contrast to the Weimar Constitution which listed them merely as "state objectives." Under the premise to respect human dignity, all state power is directly bound to guarantee these basic rights. Article 1 Basic Law (GG)--as well as the general principles of the state in Article 20 GG--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. Laws like the Reichstag Fire Decree of 1933 which suspended the human rights listed in the original constitution would no longer be permissible.

The position of the president has also been decreased considerably. 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 government and the parliament. His main function is representative and ceremonial, though he remains the formal head of state. 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.

The constitutional position of the federal government was strengthened. The government now depends only on the parliament, instead of also relying on the favor of the president as prescribed by the Weimar Constitution. 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.

The guardian of the Basic Law is the Federal Constitutional Court (Bundesverfassungsgericht) whose judgements have the weight of ordinary law. It can declare acts and decrees of the parliament as null and void if they are in violation of the Basic Law. 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 jurisdiction. This is provided by Art. 20 GG. A clear separation of powers was considered imperative to prevent measures like an Enabling Act (Ermächtigungsgesetz), as happened 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.

But the court cannot itself take the initiative against any given act. The procedure is highly formalized. It usually acts on suits brought forward by members of parliament or other constitutional bodies, as well as on suits brought forward by individuals when fundamental rights are concerned and all other judicial means have been exhausted.

Political parties--in contrast to Weimar--are explicitly mentioned in the constitution, thereby officially recognizing them 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. 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.

The Bundesrat (federal council), representing the Bundesländer, has great influence in legislation, whereas the Reichsrat of Weimar only had a suspensive veto over legislation passed by the parliament.

The constitution of Weimar 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 of the parliament. Under the Basic Law, during times of peace the Bundeswehr reports to the secretary of defence. The secretary is indirectly responsible to the parliament because it can remove the government by electing a new chancellor.

A plebiscitary element, as in Weimar, which gives the people the right to pass laws is conspicuously absent. This is intentional because anti-constitutional parties in Weimar often abused this element for propaganda. Although Germany often is chided with being immobile in its legislative procedure, this procedure has been used of late to pass many government-expanding international treaties, like the European Monetary Union or the European Constitution, which failed in other countries because of plebiscites. This represents an inherent preference for the will of governing parties over the will of the people at large.

Development of the Basic Law 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 SPD and CDU 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 western 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 for reunification. Once the five "reestablished federal states" in East Germany had joined, the Basic Law was amended again to indicate that there were no other parts of Germany, which existed outside of the unified territory, that had not acceded.

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. 20 a 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 judgement 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 Bundesländer.

Analysis: Importance and Criticism

The Basic Law is regarded as a successful example of re-democratizing a country, and as a singularly lucky turn in German history. This is especially true in the introduction of the federal constitutional court which in its judgments and constitutional interpretations significantly shaped life in Germany. A constitutional court with similar powers was without precedent in Europe in 1949, but since then has served in various instances as a model, for example in Spain after the fall on Franco and for the European Court of Justice. The same is true for the central role of human dignity in the constitution.

Often it is noted that the development of a stable democracy in Germany is due less to the concept of the Basic Law, and more to the economic prosperity of postwar Germany and the Wirtschaftswunder. This argument can be countered by arguing that the economic prosperity would not have been possible in the absence of stable political conditions and the rule of law. The Basic Law has been in no small part responsible for stable political conditions. It states that the federal republic is a social state (Sozialstaatsgebot), and stipulates as well the existence of labour unions and employers' organisations (Art. 9 Paragraph 3 GG). These make agreements about working conditions without government interference (Tarifautonomie). The system is intended to give them parity of power, so they can resolve labour conflicts without resorting to strikes or lock-outs, but by deliberation. Historically and by international standards the prevalence of strikes in Germany is very low.

Another success is the organisational structure of the state, and here the implementation of mutual control of government. The stability of governments is relatively high in Germany, the dissolution of parliament because of shifting majories rare. Nowadays the concept of federalism as practised in Germany has come under criticism because it allegedly hinders the implementation of reforms. The party alignment in the Bundesländer tends to be just the opposite of the ruling coalition in Berlin which leads to blockades or significant amendments of legislative initiatives in the arbitration committee (Vermittlungsausschuss). But others contend that most of those reforms which are supposedly blocked only serve short-sighted economic and social interests, and therefore caution a change in the federalist system or the current election system. The loss of democratic control and legitimacy should not be underestimated.

Early elections

A peculiarity of the Basic Law is that it makes it very difficult 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. This was designed to avoid the chronic instability of Weimar republic governments.

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 was based on an actual legislative impasse.

In 2005, Chancellor Gerhard Schröder engineered a defeat in a vote of no confidence. President Horst Köhler then called elections for September 18, 2005. The constitutional court agreed to the validity of this procedure on August 25, 2005 and the elections duly took place.

See also Constructive Vote of No Confidence.

Referenda

Another peculiarity of the Basic Law is that it explicitly forbids referenda. This was designed to avoid the kind of populism that allowed the rise of Hitler, although it ignores the long-running stability of the Swiss Confederation.

See also

External links

de:Grundgesetz für die Bundesrepublik Deutschland es:Grundgesetz fr:Loi fondamentale nl:Duitse Grondwet ja:ドイツ連邦共和国基本法 pl:Konstytucja Niemiec