Introduction to the basic and the constitutional law (de)
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The Basic Law (Grundgesetz) of the Federal Republic of Germany has the effect and force of a constitution without the formal enactment of a constitution that governs the state and protects the rights of the state’s citizens and other persons. The Federal Constitutional Court (Bundesverfassungsgericht) was furthermore created to be the Basic Law’s guardian. It is to protect the basic rights and other funamental principles established within Germany's Basic Law.
I. Historical development and evolution
After World War II it revealed necessary to think about the construction of a new state of Germany. The principle of a federal construction and a democratic and constitutional state was assumed. A strong federal government as well as the introduction of an uncommitted Head of State, a wide elimination of plebiscites and the development of a “clause of perpetuity” were thought to be important. In 1949 the western zones created the Federal Republic of Germany (FRG) and composed the Parliamentary Council which elaborated the Basic Law and proclaimed it on may 23 in 1949. For the time being it was legal only for the western zone of occupation (American, French and British) and since the German Unification it is valid for the entire state of Germany (2.10.1990).
The Basic law is stamped by the unstable democracy of the Republic of Weimar and the experiences of Hitler’s government. In advertence to human dignity now the states power is directly bound to the basic rights (article 1 GG). The position of the Federal President is reduced to a formal and representative function. Instead the respective majority of the Lower House of German Parliament (Bundestag) and the Federal Government (Bundesregierung) are strongly linked to each other and depend on one another in order to increase stability. The Federal Government only depends on the Bundestag. The parties are anchored in the Basic law (article 21 GG). They need to come out of the closet on the democratic principles, are necessary for a parliamentary democracy and express themselves in the proportional representation. They do not only present candidates for political offices in governments, but also affect the allocation of leading positions in the administrations, Courts of Justice and the Public Attorney's Office. The Upper Bundesrat represents the Federal States (Länder) and is strongly concerned by legislation.
The prescriptions for the European Union (EU) are contained in the Articles 23 and 79 paragraph 1 and 2.
The Basic law was considerably changed by the reintroduction of a compulsory military service and the creation of the German Federal Armed Forces (Bundeswehr) in 1956, in 1968 by the legislation for a state of defence (Article 115a) and in 1969 by the reform of the financial legislation (Articles 104a to 115).
The Basic law is considered to be a successful example of re-democratisation. The principle of human dignity and the organisation of the Federal Constitutional Court (Bundesverfassungsgericht) were exported to other constitutions. The federal configuration has proved oneself, but today it can be regarded as an obstacle to economic and social reforms.
II. The basic law’s content
In the order of priority the Basic Law has a higher rank than all other legal norms of the German legislation. It consists of the preamble, the basic rights (articles 1-19, article 38 GG), a part concerning the stately organisation and the principles of justice (article 103 GG) and can only be amended by a two thirds majority of the Members of Bundestag and Bundesrat. It determines the organisation of the state and marks basic missions of the state as well as its procedures. The most important principles are democracy, republic, the constitutional state, the welfare state and the federal state.
Democracy means that the people bears the power of the state. In a republic a Head of State is chosen for a limited time and as the case may be he can be deselected. The constitutional state assures its citizens the separation of powers, the basic rights, legal certainty and security as well as the protection of confidence according to the principle of proportionality. The basic principle of a welfare state engages the institutions of the state to abolish social injustice and to protect economically fragile parts of the population. The federal state contains the federal form of a state as against to centralised states (e.g. France) or confederations of states (e.g. ONU). These principles, the separation of powers as well as the protection and the inviolability of the human rights may not be amended according to Article 79 paragraph 3. In 1994 the national objective “environmental protection” was added to the Basic Law. According to Article 149 the Basic Law looses its validity if a new constitution takes effect, that is chosen in a free decision by the German people.
A. The basic rights
The basic rights are the rights of each citizen (civil rights) and each human being (human rights) as a counterpart to the bearers of the state’s power. They are fixed in the Articles 1-19 and enforceable. They concern especially the human dignity (Article 1), the personal freedoms (Article 2), equality before the law and equal rights of men and women (Article 3), the freedom of faith, conscience, and creed (Article 4), the freedom of expression, information, press, broadcasting, art and science (Article 5), the protection of marriage and family (Article 6), the school education (Article 7), the freedom of assembly (Article 8), the freedom of association (Article 9), the privacy of correspondence, posts and telecommunications (Article 10), the freedom of movement (Article 11), the occupational freedom and the prohibition of forced labour (Article 12), the compulsory military or alternative service (Article 12a), the inviolability of the home (Article 13), the right of property, inheritance and expropriation (Article 14), the socialisation (Article 15), the citizenship and extradition (Article 16), the right of asylum (Article 16a), the right of petition (Article 17), the forfeiture of basic rights (Article 18) and the restriction of basic rights (Article 19).
The basic rights can be delimited by law if their essential content stays untouched.
B. The federation and the states
The federal principle of a state contains a double separation of powers (legislative, executive and judiciary power in horizontal (power of separation on the federal level) and vertical form (separation of power between Federation and Federal States (Länder). This guards efficiently against an abuse of power and eases a good control of power. The establishments of the state are nearer to the regional problems than a centralised state, the citizens keep a better contact to the politicians and public authorities in their region. The Länder compete against each other and exchange their experiences, knowledge, solutions and ideas. The historical, economical and cultural characteristics of the Länder can be better conserved and developed. But on the other hand this interwoven exercise of power is complicated and sometimes difficult to survey by the citizens. This double separation of power in Länder and federation is declared sacrosanct and irreversible by Article 79 Paragraph 3.
1. The Länder
The individual federal states (Länder) have each an own government, administration and jurisdiction, but the sovereignty according to international law stays with the federation. In the pyramid of legislation, the federal laws are higher than those of the states (Federal law shall take precedence over Land law, Article 31).
Already the Preamble of the Basic Law expresses that the FRG is composed of several Länder. Article 20 Paragraph 1 fixes formally the Federal State. The statehood of the Länder is brought out by Article 30. The Länder’s contribution to the federal legislation is arranged by Article 50 and the segmentation of competences between Federal state and Länder is ruled by the Articles 70 to 75. According to the Articles 50 to 77 the Bundesrat participates in the legislation and administration of the Federal State: In the case of amendments of the Basic Law, laws needing consent as well as simple laws and veto laws. The constitution, the construction and the role as well as the election of the Länder’s Parliaments can differ from Land to Land. The Head of Land's Government is elected by the Land’s Parliament and mostly called “Ministerpräsident”. The Länder have a legislative competence concerning culture, education, police and the regulations for administrations that are lead by the Länder and their communes (Kommunen). Each Land has discrete political institutions in the executive, legislative and judicative power. If a Land does not accomplish its federal obligations according to the Basic Law, the Federal Government can take upon approval by the Bundesrat the necessary measures in order to urge the Land to fulfil its duties (Article 37).
The Federal Republic of Germany is a federal state that unites the different Länder. The Länder possess own constitutions but have also a common, higher-ranking constitution of the whole federal state, the Basic Law.
The Head of State of the Federal Republic of Germany is the Federal President (Bundespräsident). He is elected by the Joint Committee (Bundestag and Bundesrat) for five years and accomplishes mostly representative and formal tasks. He can obtain a political impact only by speeches and orations, by which he can animate and reanimate the social discussion (Article 54-61). He has to be party politically neutral during his term of office.
The legislative of the FRG adopts federal laws and watches over the federal government budget. Federal laws can be proposed out of the middle of the Bundestag (parliamentary party or minimum number of Members of the Bundestag), as well as by the Federal Government and the Bundesrat. If the Bundestag accepts a Bill it will be transferred to the Bundesrat. If it accepts the law, it can become effective. The Federal President signs the law after having checked its constitutionality. Exclusive and concurrent legislation as well as the framework legislation of the federation are distinguished (Articles 70-82).
(1) The elections
The elections to the German Bundestag result from personal and proportional representation. The first vote will be given to a nominee (majority voting system), the second vote to a party (proportional representation). A barring clause of 5 % shall prevent the fragmentation of the Parliament.
Furthermore there are German regional elections (Landtagswahlen), municipal elections and European elections. Plebiscites are only allowed for the layout of the Länder (Article 29). On the Länder’s level there are some more possibilities for plebiscites.
(2) The Bundestag
The Bundestag is the Lower House of German Parliament. It decides among other things about the federal laws, the federal government budget, controls the government, accredits international treaties, elects the Federal Chancellor (Bundeskanzler) and contributes to the election of the Federal President (Bundespräsident). It shall express the desires of the population and inform it. The Members are independent from their political party but do respect the parliamentary party’s discipline (Articles 38-48). The legislative period takes four years.
(3) The Bundesrat
The roles of the Bundesrat (Upper House of the German Parliament) are treated in the Articles 50-53. The Members of the Bundesrat are sent by the Governments of the different Länder. The Bundesrat was created in order to assure the collaboration of the Länder in the creation of federal laws, if these concern the interests of the Länder or those of the European Union. Each Land has between three and six seats according to the number of its inhabitants that can only be used as a unity. In case of conflicts between Bundestag and Bundesrat a conciliation committee can be appealed. The party political composition can change with each regional election.
The executive power of the Federal Republic of Germany consists of the Federal Chancellor and the Federal Ministers. It puts into practice the laws and regulations of the state and each citizen has the right to review their decisions. The Länder administrate the federal laws as their own matter (Articles 83-85).
The federal Chancellor is the Head of the Government. He is elected by the Members of the Bundestag in absolute majority. He determines the Federal Ministers and the main features of the federal policy. According to the Articles 62-63 and 65 he has an important influence on the federal legislation (delimited by the Bundesrat).
The Federal Ministries organise the administration on the federal level. The political leadership belongs to the different Federal Ministries that administrate their field of duty independently according to the Chancellor’s main features. Most laws are prepared in the Federal Ministries. The number of Ministries is fixed by the Government (right now there are 13 Federal Ministers). The Federation executes the laws by a federal administration, by corporations near to the Federation or institutions of public right (Articles 83-85).
Courts need to be appealed to give a decision in Germany. Within the scope of criminal prosecution the Public Attorney's Service acts representing the State. The judicature is committed to the judges according to Article 92. The capital punishment is abolished according to Article 102.
The Federal constitutional Court controls the observance of the Basic law’s norms and checks the laws upon their constitutionality (Articles 92,94).
The federal courts have the task to harmonise the judicature of the Länder’s courts. They are the upper judicial authority (Article 96).
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