Comparative Constitutional
Law
German Constitution
Class 14: October 10, 2006
Germany
• Slightly smaller than
Montana
• Population is more
than 80 million
German Basic Law
• What is the Basic Law?
• How was it created?
• What happened to the Basic Law on
reunification in 1990?
Germany
• Example of successful redemocratization
• Has been called a “militant democracy”
• Much concern about history repeating
itself
Fundamental Structural Principles
• What are the fundamental structural
principles that the Basic Law makes clear
are the basis of the German state?
Fundamental Structural Principles
•
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Demokratie (Democracy)
Republik (Republic) limited time
Rechtstaat (Law State)
Sozialstaat (Social Welfare State)
Bundestaat (Federal State)
Protection of the Environment (Art. 20a
GG)
Article 20
• Article 20 [Basic institutional principles; defense of
the constitutional order]
(1) The Federal Republic of Germany is a democratic
and social federal state.
(2) All state authority is derived from the people. It shall
be exercised by the people through elections and other
votes and through specific legislative, executive, and
judicial bodies.
(3) The legislature shall be bound by the constitutional
order, the executive and the judiciary by law and justice.
(4) All Germans shall have the right to resist any person
seeking to abolish this constitutional order, if no other
remedy is available.
Bundespräsident
Bundespräsident
• Horst Köhler: elected
2004 (CDU)
Article 20(a)
•
(1) Every person shall have the right to free development
of his personality insofar as he does not violate the rights
of others or offend against the constitutional order or the
moral law.
(2) Every person shall have the right to life and physical
integrity. Freedom of the person shall be inviolable.
These rights may be interfered with only pursuant to a
law.
Mindful also of its responsibility toward future
generations, the state shall protect the natural bases of
life by legislation and, in accordance with law and justice,
by executive and judicial action, all within the framework
of the constitutional order.
Article 21: Political Parties
•
(1) Every person shall have the right to free development
of his personality insofar as he does not violate the rights
of others or offend against the constitutional order or the
moral law.
(2) Every person shall have the right to life and physical
integrity. Freedom of the person shall be inviolable.
These rights may be interfered with only pursuant to a
law.
Mindful also of its responsibility toward future
generations, the state shall protect the natural bases of
life by legislation and, in accordance with law and justice,
by executive and judicial action, all within the framework
of the constitutional order.
Separation of Powers
•
Gewaltenteilung – separation of powers (Art.
20(2) GG)
• The Basic Law allocates different tasks to
legislature, executive and judiciary]
• Certain institutions are delegated as legislative
(e.g. Bundestag and Bundesrat), executive
(Bundespräsident, Federal Government) and
judicial (Federal courts, including
Bundesverfassungsgericht (Federal
Constitutional Court))
Bundestaat
• Federal State (Art. 20(1) GG).
• The decision to make Germany a federal state was
grounded in historical experience; it was an attempt
to prevent a repeat of any government similar to the
centralized Nazi dictatorship.
• Art. 30 gives the Federation powers only where
specifically enumerated, although through
amendments to the GG there has gradually been a
shift in the balance of power toward the Federation.
• The fear of a centralized German state leading to
dictatorship led the drafters of the GG to limit the
legislativep powers of the Bundesstaat to situations
specifically enumerated by the GG> In some cases
the Bundestaat’s power to legislate is exclusive, in
others, concurrent, with the lander and sometimes it
has the power to pass skeleton legislation.
Bundestag: As 38-48 GG
• Highest constitutional organ in Germany and one of
2 chambers of Parliament.
• Legislative body directly elected by the German
people
• 614 Representatives now: they serve a 4 year term
• The electoral system is a combination of
proportional representation and direct election – this
mixed system was designed to ensure that there are
not too many minority parties in the Bundestag,
because situation this had assisted in the rise of
National Socialism in the Weimar Republic.
• Mixed member proportional system: Electors cast 2
votes: one for member from his/her constituency,
and the second for the Land list
(majority/proportional voting) 299 constituency 299
party 16 overhang
• Elects Chancellor (Arts. 63, 67 and 68 GG)
Political Composition of the
Bundestag
• When was the last Bundestag election?
• How many political parties have seats? Which
parties? What percentage of members?
• Note – to obtain representation in the
Bundestag, it is necessary for a party to have at
least 5% of the Land list votes and win seats in
at least 3 constituencies.
Bundestag: last election Sept 18,
2005
Upper House of German
Parliament: Bundesrat As 50-53
GG
• What does it do? Compare it to the
Australian, Canadian, and United States
Senates
Executive Branch
• Who is the current German Chancellor?
Current Chancellor: Angela Merkel
(CDU)
• Ossi background
• Chairman of CDU since
2000
• Protestant
• Nickname “Iron Lady”
(invoking Margaret
Thatcher)
• Became Chancellor in
11/2005 after a deal
following 9/2005 Grand
Coalition CDU/CSU/SPD
Basic Rights
• BASIC RIGHTS- Grundrechte
• What are basic rights and where are they
found in the Basic Law?
Basic Rights
• BASIC RIGHTS- Grundrechte
• What are basic rights and where are they found
in the Basic Law?
• They are rules protecting against unlawful acts
or omissions by the state. They ensure that
human rights are respected.
• The main basic rights are in Arts 1-19GG though
there are also some grundrechtsgleiche Rechte,
e.g. Art. 38, 33 (political participation), 103, 104
GG (rights of fair trial, due process)
History of Basic Rights Provisions
in German Constitutions
• 1848 Constitution had basic rights
• 1871 Reichsverfassung did not
• 1919 Weimar Constitution had basic
rights, but these were suppressed in the
Third Reich
Menschenrechte vs.
Deutschenrechte
• Some of the basic rights apply only to
German citizens (Art. 8, 9, 11, 12, 16).
• Should this be changed now that many (to
the surprise of the drafters of the Basic
Law, probably) seek to immigrate to
Germany
GG: Language of Duties as well as
rights
• Duties on state
• Duties on individuals
Limitations
• Can the Basic Rights Be Restricted or Are They
Absolute?
• See Art. 19(1) which requires that any restrictions be
pursuant to a generally applicable law, and also provides
judicial recourse for violations of the Basic Law.
• Some specific limitations in rights e.g. 8(1) right to
assemble ‘peacefully’
• Art 18 provides that certain basic rights can be abused
and forfeited (Art. 5(1), and (3), Art. 8, Art. 9, Art. 10, Art.
14, Art. 16(a)) if the Federal Constitutional Court
declares the forefeiture temporary or permanent.
• Principle of proportionality
Chancellor: Angela Merkel (CDU)
elected 2005