salient features of german constitution

8/18/2019 Salient features of German Constitution

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NATIONAL LAW UNIVERSITY

JODHPUR

SUBJECT: COMPARATIVE CONSTITUTIONAL LAW

DEEPEST LAYERS OF GERMAN CONSTITUTION

SUBMITTED TO: SUBMITTED BY:

Prof. I.P. Masse U!"ars# S$% '()*+,

Na!$o%a- La U%$/ers$!0 U.G. 1 2!# Se3es!er

Jo4#56r B.A.LLB 'Ho%s, Jo4#56r

Submission Date : 2!" # SEPTEMBER# 2$%&'


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TABLE OF CONTENTS

Table of Contents.............................................................................................................................

Acknowledgement........................................................................................................................ ...

Introduction................................................................................................................................... ...

Basic Principles of the German Constitution...................................................................................

Deepest Laers of German Constitution..........................................................................................

Conclusion.................................................................................................................................... .

Bibliograph................................................................................................................................. .

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ACKNOWLEDGEMENT

This pro#ect could ne$er ha$e been possible without co%operation from all sides.

Contributions of $arious people ha$e resulted in this effort.

&irstl' I would like to thank God for the knowledge he has bestowed upon me.

(econdl' I take this opportunit to e)press m gratitude to the Dean of &acult of Law of

*L+' our sub#ect teacher Prof. I.P.,asse. -e has constantl helped and guided us in the

compilation of this pro#ect.

Thirdl' I would also like to thank the entire librar staff for pro$iding me with the $arious

sources of information that we utilied during the course of m pro#ect 'thereb' helping us to

complete this endea$our of mine successfull.

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INTRODUCTION

The current $ersion of the Basic Law of "/ ,a 0121 is the Constitution of the &ederal

3epublic of German.

The Basic Law was adopted in 0121' initiall as a pro$isional framework for the basic

organiation of the state until German reunification. The name 4Basic Law5 was intended to

e)press its pro$isional nature and that it was not to hinder reunification0. But from the $er

beginning' the Basic Law has alwas contained all the features of a constitution and has

functioned effecti$el as one for more than 67 ears".

In its earlier $ersion' the Basic Law pro$ided for two options in the e$ent of German

reunification8 either accession of other parts of German to the territor in which the Basic

Law applies under Article "/ of the Basic Law 9old $ersion:' or the adoption of a new

constitution b the German people under Article 026 of the Basic Law 9old $ersion:/. In the

+nification Treat of /0 August 011;' the go$ernments of the &ederal 3epublic of German

and the German Democratic 3epublic agreed to restore German unit on the basis of Article

"/2. The parliaments of both German states appro$ed this decision with two%thirds ma#orities.

The preamble to the Basic Law' which was amended after the +nification Treat' states

that 3echtsstaatsprinip%en.pdf .

2 Ibid.

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determination. This Basic Law thus applies to the entire German people7.


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The German Constitution after more than 67 ears of application and in spite of 71

amendments' including the reunification of ?est and ast German' remains a central point

of reference in International Constitutional Law. 0;Lessons learned from the period of *ai

rule led to a number of peculiarities much discussed in comparati$e studies8 the figurehead

presidenc' the eternal guarantee of human dignit and democrac' and the complete lack of

direct democratic elements on the federal le$el00. 3eaching back to prior constitutional

traditions are the principles for the professional ci$il ser$ice and the rules regarding the

relationship between state and church. Ether pro$isions are singular results of political

contro$ersies8 the rule about legitimate resistance' the indi$idual right to conscientious

ob#ection' and ParliamentFs indirect participation in the Go$ernmentFs uropean +nion

acti$it0". Due to the position and #urisdiction of the Constitutional Court' the supremac of

the constitution is an all%per$ading element in German law8 b the basic right to e$er kind

of acti$it' b the comprehensi$e indi$idual complaint procedure' b the dut of the

Constitutional Court to deal with e$er complaint' and b the indirect control o$er

institutional settings achie$ed through claims based on basic rights0/.

BASIC PRINCIPLES OF THE GERMAN CONSTITUTION

The basic principles of the constitution % such as democrac' the rule of law' the principle of

the social state' federalism' respect of human dignit % ma not be altered at all not e$en b a

constitutional amendment. The aim was to pre$ent the enemies of democrac from

o$erturning it using its own instruments % like the ma#orit rule.

0. According to art. 0 90: human dignit is the unalterable foundation of the constitutional

order. The confession to the in$iolabilit of human dignit and personalit was and is a

0; (upra at 0.

00 Ibid.

0" A)el Tchentser' 4$he &asic Law '()'”, a$ailable at http://ssrn.com/abstract=1501131.

0/ Ibid.

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response to the per$ersion of law in the Third 3eich and the mass murder in the shadow

of this in#ustice. Therefore the state is not onl obliged to respect' but also to protect

human dignit02.

". Crowned b the principle of human dignit' the fundamental rights ha$e legall binding

force. It is stated in the first article of the Basic Law' that the following basic rights shall

bind the legislature' the e)ecuti$e and the #udiciar as directl enforceable law. This

means that all public officials and institutions ha$e to respect and secure human rights07./. ,oreo$er' the binding effect of all human rights is e)pressl e)tended to the legislature

b art. 0 9/:. -ere we obser$e the Basic Law re#ecting the assumption of the

constitutionalists of the mpire and to a large e)tent also of the ?eimar 3epublic' that the

legislature was free to restrict fundamental rights as it pleased. According to art. 01 9":

there is an ultimate limit to legislati$e measures8 In no case ma the touch the essential

content of a human right06.

2. The Parliamentar council which worked out the Basic Law established the classic

catalogue of liberal rights and added some new ones in the light of the e)perience made

under the *ai dictatorship' such as freedom of broadcasting' freedom of art and the right

to life and phsical integrit. But it decided not to follow the ?eimarian e)periment with

social rights. Instead' a general principal was included into the constitution according to

which German is recognied as being a social state0.

7. &inall' the Parliamentar Council established a special institution designed to enforce

the constitution against an other go$ernment authorit. This institution is the &ederal

Constitutional Court' which should be a safeguard against dictatorship and the disregard

for human rights. And ou can obser$e in recent histor that the e)perience of proceeding

02 urgen -artmann' 4$he *undamental Pillars of Democracy”, a$ailable at

http8==www.oung%german.de=topic=li$e=settle%in%ad#ust=the%fundamental%pillars%of%

democrac.

07 Ibid.

06 Ibid.

0 Ibid.

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totalitarian regimes inspire the framers of constitutions not onl to formulate a Bill of

3ights but also to establish a kind of constitutional court and #udicial re$iew. Hou will

find man e)amples in astern urope as well as in Africa. The Basic Law established

this special court in order to grant protection against all infringements of constitutionall

guaranteed rights0.

The &ederal Constitutional Court 9&CC: is endowed with ample powers' among them the

power of #udicial re$iew. As mentioned abo$e8 In the German sstem all constitutional

organs ha$e to respect and enforce human rights. But onl the &CC decides on the

interpretation and application of the federal constitution with final binding force01. (hould

another court consider a law unconstitutional and therefore wish not to appl it' it must first

obtain the decision of the &ederal Constitutional Court. The &CC is not a court of appeal

which e)amines the decisions of the ordinar courts for an error of fact or law. Its e)clusi$e

responsibilit is to decide uestions of constitutional law and to interpret the Basic Law. The

&CC en#os the last word on the meaning of the Basic Law' and its word is Law.";

DEEPEST LAYERS OF GERMAN CONSTITUTION

In the &ederal 3epublic of German a transformation from a ser$ant mentalit to a culture of

citienship has taken place. It is a truism that the constitutional document b itself cannot

establish loalt towards the democratic sstem. It much rather smbolies the multi%laered

forces of integration. The characteristic ad$antages of the Basic Law had to re$eal and pro$e

themsel$es in dail political life in order to spur acceptance. Certainl one cannot den that

the


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industr' would not ha$e been created. Despite the bad premonitions of the earl ears the

citiens of the &ederal 3epublic graduall de$eloped a satisfaction with democrac in the

ensuing ears"". Along with the economic and political success%stor of the &ederal 3epublic

grew the acceptance of the democratic sstem and its principles. Towards the end of the

se$enties' the pride in the own political order reached a le$el comparable to that of other

democracies. In contrast to the ?eimar constitution the Basic Law has not onl found

citiens concerned about their fundamental rights' but also loal political actors and #udges."/

0. The (upremac of the Constitution8?ith the introduction of this kind of constitutional #urisdiction the principle of the

supremac of the constitution attains its practical point. This concept confers the highest

authorit in a legal sstem on the constitution. (tating this principle does not impl

simpl gi$ing a rank%order of legal norms. The point is not solel a conflict of norms of

differing dignit. The principle of the supremac of the constitution also concerns the

institutional structure of the organs of the (tate. The scope of the principle becomes clear

if we reformulate it8 the supremac of the constitution means the lower ranking of statute

and this in turn implies the lower ranking of the legislator "2.

The principleFs practical conseuence ma most easil be seen from a concrete e)ample8

In 017 the Bundestag enacted a law reordering famil law in accordance with the

constitutional reuirement of se) eualit"7. This ual 3ights Act remo$ed the husbandFs

"0 Bernhard (chlink' 4$he Constitutional Su+ect and its -dentity”, // Cardoo Law 3e$.

061 9";0":.

"" Ibid.

"/ (upra at "0.

"2 urgen -artmann' 4$he *undamental Pillars of Democracy”, a$ailable at


democrac.

"7 Ibid.

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right of decision in matrimonial matters. The Act also followed the case law that parental

care and custod go to both father and mother. But for the case where the parents were

unable to agree' the father was to ha$e the last word."6 Enl this parental casting $ote was

held suitable to safeguard famil peace and marriage in its Christian' Eccidental form".

The Act had barel entered into force when four married mothers filed a constitutional

complaint with the &ederal Constitutional Court. The asked for repeal of the law gi$ing

fathers the last word on childrearing' because it infringed Art. / 9/: Basic Law. This

article of the German constitution reads8


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particular fundamental $alues' to which all organs of (tate are committed. It is not onl

the two dictatorships on German soil that ha$e taught us that democrac cannot be upheld

without the $alidit of human rights.


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democratic order of the &ederal 3epublic of German or threatens the e)istence of the

&ederal 3epublic itself./2

/. 3esistance read Democrac8

&or the &ederal Constitutional Court' turning awa from political indifference and

totalitarian rule as intended b the Basic Law' has been and still is one of the guiding principles of its administration of #ustice/7. Prominent e)amples of this are pro$ided b

the aforementioned decisions from the courtFs earl ears' in which it declared

unconstitutional the (ocialist 3eich%part and the Communist Part of German/6. The

Court coined the term


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the political parties representing them can be the correct path to the formation of public

will that onl the constant mutual control and critiue pro$ides the best guarantee for


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of the Bundestag and two%thirds of the members of the Bundesrat 9Article 1 9": Basic

Law:. -owe$er' no basic principles of the Constitution ma be altered using this

procedure. Article 1 9/: prohibits an amendments to the Basic Law affecting the

di$ision of the &ederation into Lnder' their participation on principle in the legislati$e

process' or the principles laid down in Articles 0 and "; 9the in$iolabilit of human

dignit' human rights and the constitutional principles such as democrac' the separation

of powers and the basic elements of the welfare state and the rule of law:27.

7. udiciar8

The fundamental legal pro$isions underling court practice and ad#udication in the

&ederal 3epublic of German can be found in Articles 1" and 1/ of the Basic Law. The

structure of the court sstem follows the federal principle with courts at the federal and at

state le$els26.

A special position is held b the &ederal Constitutional Court' which' as an organ of the

constitution' is the highest German court and an independent court of the &ederal

3epublic2. It rules e)clusi$el on constitutional issues. The &ederal Constitutional Court

is complemented b constitutional courts in the federal states2.

Besides the constitutional courts' there are the following ma#or categories of #urisdiction8

There is ordinar #urisdiction which falls into ci$il and criminal #urisdiction with local'

regional and higher regional courts 9 mtsgerichte, Landgerichte, 3+erlandesgerichte: at

the state le$el and the &undesgerichtsh of 9&ederal Court of ustice % BG-: as the highest

27 Ibid.

26 3oberts' Geoffre K. 9";;;:. German politics today. ,anchester +ni$ersit Press.

p. /1. I(B* ;%01;%2160%M.

2 Ibid.

2 Ibid.

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court21. &urthermore' there is administrati$e' fiscal' labor and social #urisdiction with

courts at regional' higher regional' and federal le$els7;. The regional and higher regional

courts are' at the same time' courts of appeal of their respecti$e states70. There is a oint

Panel of the -ighest &ederal Courts which acts as a supreme bod of #urisdiction across

all court le$els and #urisdictions and decides on issues of di$ergent ad#udication b other

courts7". Its authorit is' howe$er' largel restricted and cannot be compared to that of a

(upreme Court in other countries 9as' for e)ample' in the +nited (tates:. Courts are

di$ided into panels and di$isions based on areas of law. ach case is assigned a case

number that reflects the tpe of court' le$el of appeal' and subdi$ision7/. The case number

and date are of great importance in citing and finding cases. ?hen a court decision is

published' it is preceded b a summar' comparable to headnotes' authored b #udges'

press departments with the courts' or the editorial board of the publishing #ournal. As a

rule' the names of the parties in$ol$ed are not mentioned 72.

21 ,ario Peuker' 4 Equality and nti!discrimination approaches in Germany”, a$ailable

at http8==www.efms.uni%bamberg.de=pdf=Anti%discrimination>in>German.pdf .

7; ,ario Peuker' 4 Equality and nti!discrimination approaches in Germany”, a$ailable

at http8==www.efms.uni%bamberg.de=pdf=Anti%discrimination>in>German.pdf .

70 Ibid.

7" (upra at 22.

7/ (upra at 22.

72 (upra at 21.

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Court decisions b the highest courts are most completel recorded in print format in

$arious uasi%official reporters put together b the #udges of the respecti$e courts77. The

are published in the large legal publishing houses' unfortunatel with much dela 76.

6. &ederal (stem8

German has a federal sstem of go$ernment built on democratic principles' which is

made up of 06 Laender 9federal states:7. It is a member state of the uropean +nion' the

association of a number of uropean states. +nder the Constitution of the &ederal

3epublic of German' which is known as the Basic Law 9Grundgeset4 : and lies at the

foundation of all other legislation' the highest legislati$e bodies are the &undestag and

the &undesrat as the two chambers of parliament7. The &ederal Constitutional Court is

the highest bod of the #udiciar' and the &ederal President and the &ederal Go$ernment

are the highest bodies of the state e)ecuti$e71. This structure is mirrored at the le$el of

the Laender with state parliaments' the state constitutional courts' and state go$ernors and

go$ernments6;.

German law is go$erned b the federal nature of the &ederal 3epublic of German and is

thus not dissimilar to legal sstems such as the ones in the +nited (tates or Australia60.

-owe$er' in contrast to these #urisdictions' the federal principle is not confined to

77 Ibid.

76 Ibid.

7 3ussell ,iller' 4Germany5s &asic Law and the use of *orce”, 0 I *DIA*A E+3*AL E&

GLEBAL LGAL (T+DI( 01 9";0;:.

7 Ibid.

71 Ibid.

6; Ibid.

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national borders' i.e. the relations among the indi$idual Laender and their relations

towards the &ederation6". It e)tends to' and is cruciall influenced b' GermanNs

membership of the uropean +nion' which b now affords an e)tensi$e bod of

legislation that is binding on its indi$idual member states directl or needs to be

implemented in national law. There are basic treaties' regulations and directi$es. Bilateral

and multilateral agreements between + member states are now mostl replaced b +

treaties6/.

. The 3ule of Law8

The united &ederal 3epublic of German 9commonl referred to as German: is

go$erned b its constitution' the Basic Law' which was adopted on ,a "/' 0121.

Although American influence is illustrated in its well%defined federal sstem and

separation of powers' the political and legal sstem reflects GermanFs own histor' most

importantl the barbarism of *ai rule62.

+nlike the ?eimar 3epublic' where human rights were considered onl


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As earl as 0121' separation of powers was established in the former ?est German

through a federal sstem of states 9 L6aut7nder : and the decentraliation of authorit. ?ith

reunification' German now consists of 06 states fi$e states from the former ast were

added to the ?estFs 00 states6. In addition' to a$oid the pre$ious dangers of centralied

authorit' the president was gi$en largel ceremonial duties with onl basic checks on

legislati$e powers' such as to call elections in the e$ent of a $ote of no confidence b the

legislature6. To compensate' the Bundesrat 9the upper legislati$e house that directl

represents the states: has greater powers in the adoption of legislation. An independent

#udiciar is headed b a &ederal Court of ustice 9 &undesgerichtshof : with the power of

#udicial re$iew to ensure enforcement of the Basic Law. German is also an integral

member of the uropean +nion 9+:' as well as the +* sstem' and is a part to the

uropean Con$ention on -uman 3ights' to all +* con$entions on human rights' and to

International Labor Erganiation con$entions 9ILE: on worker rights61.

66 Donald Kommerce' 4$he Constitutional .urisprudence of the *ederal repu+lic of

.urisprudence8” A$ailable at https8==books.google.de=booksJ

idOs-fkg)toQCRpgOPA/;RlpgOPA/;RdOprinciplesSbehindSbasicSlawSofSgerma

nRsourceOblRotsOBo7/A,)g2RsigOg"p1+TC/2ui0rC6GCKkM/2RhlOenRs

aOMRsiO"R$edO;CDQ6AwA"oCh,IodPI>(cAIB#s+Ch/HBw+#U$Oonepag

eROprinciplesV";behindV";basicV";lawV";ofV";germanRfOfalse.

6 Ibid.

6 Ibid.

61 Ibid.

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,uch of GermanFs ci$il and criminal law remains rooted in 3oman tradition;. The

constitution ensures basic due process rights' similar to those in the +.(. Constitution. A

rise in left%wing e)tremist $iolence in the 016;s and 01;s challenged GermanFs

commitment to rule of law principles when the go$ernment adopted se$eral special

measures allowing e)ceptions to due process rights' such as the use of listening de$ices.

E$er time' howe$er' these cases indicated the limited e)tent to which German societ

was willing to bend the rules on which its democratic consensus rests. These $iolent

groups gained little adherence and ultimatel dissol$ed0.

The acceptance of the Basic Law and the general laws of the &ederal 3epublic b ast

German reflected the general re#ection b easterners 93ssis: of the (o$iet%imposed

Communist sstem". In terms of the rule of law' the (o$iet%stle sstem had no

independent #udiciar 9#udges were dependent on part superiors:' due process' or other

characteristics of the rule of law. As noted abo$e' hundreds of thousands of people were

forced to sp for the police' usuall on their famil members and neighbors. The film $he

Li2es of 3thers' winner of the EscarsF foreign film award for ";;' shows how the police

had elaborate machiner to sp on anone the wished to/.

The *uremberg trials and the International ,ilitar Tribunal for the &ar ast 9Toko war

crimes trial: established the principle of international accountabilit for crimes against

humanit2. These trials also set the foundation for the acknowledgment of the crimes of

; 3ita )ter' ,artina Kammer' 4 Legal research in Germany at the crossroads of

$raditional and Electronic /edia”, a$ailable at

http8==www.llr).com=features=germanlaw.htm.

0 Ibid.

" A)el Tchentser' 4$he &asic Law '()'”, a$ailable at http://ssrn.com/abstract=1501131.

/ (upra at 0".

2 Ibid.

Page ! 01


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the *ais' the complicit of German societ' and GermanFs responsibilit for the Third

3eich' including the need for reparations to $ictims. As a result of its e)perience'

German bans the ad$ocac of *aism' the displa of *ai insignia or paraphernalia' and

the denial of *ai crimes' most importantl the -olocaust7. ?hile such restrictions are

challenged as counterproducti$e and o$erl restricti$e b free speech ad$ocates' the are

considered an essential part of the postwar political consensus to ne$er again allow

totalitarianism to take hold.

. The lectoral (stem8

The German electoral sstem makes it $er difficult for an one part to form a

go$ernment on its own. This has onl happened once in 76 ears. An alliance of parties is

the general rule.6 (o that the $oters know which partner the part the $oted for is

considering go$erning with' the parties mostl issue coalition statements before

embarking on the election campaign. B $oting for a particular part citiens thus e)press

on the one hand a preference for a specific part alliance' and on the other determine the

balance of power between the desired future partners in go$ernment.

1. The Bundestag8

The Bundestag is the elected representation of the German people. Technicall speaking

half the 71 seats in the Bundestag are allocated b means of the partiesN state lists 9the

second $ote: and the other half b the direct election of candidates in the "11

constituencies 9the first $ote:. This di$ision changes nothing with regard to the ke role

7 Ibid.

6 A$ailable at A)el Tchentser' 4$he &asic Law '()'”, a$ailable at

http://ssrn.com/abstract=1501131..

Ibid.

utta Limbach' 4 "ow a Constitution can safeguard democracy# $he German

E%perience”, a$ailable at https8==www.law.hku.hk=ccpl=Docs=uttaLimbach.pdf.

Page ! ";


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of the parties in the electoral sstem. Enl those candidates who belong to a part ha$e

an chance of success. The part to whom members of the Bundestag belong is meant to

reflect the distribution of $otes. In order to pre$ent complications in the formation of

ma#orities b the presence of small and $er small parties a fi$e%percent threshold is

designed to stop their being represented in the Bundestag1.

The Bundestag is the German parliament. Its elected representati$es are organied in

parliamentar parties and select a President from among them. It is the function of the

Bundestag to elect the &ederal Chancellor and keep him in office through support for his

policies. The members of parliament can relie$e the Chancellor of his duties b dening

him their confidence' as do other parliaments;. *or does it make an great difference that

in German the Chancellor is elected' whereas in Great Britain and other parliamentar

democracies he is appointed b the head of state0. In other parliamentar democracies' a

part leader who can rel on a parliamentar ma#orit is alwas appointed head of

go$ernment".

The second ma#or function of the elected representati$es in the Bundestag is to pass

legislation. (ince 0121 o$er 0;';;; bills ha$e been introduced to Parliament and more

than 6'6;; laws enacted/. These were predominantl amendments to e)isting acts. -ere'

again' the Bundestag is similar to parliaments in other parliamentar democracies in that

it for the most part enacts bills proposed b the &ederal Go$ernment. The Bundestag

1 Ibid.

; Gunlicks' Arthur B. 9";;/:. $he L6nder and German federalism. ,anchester

+ni$ersit Press. p. 026. I(B* 1%;%01;%67//%;.

0 Ibid.

" Ibid.

/ ohnson' dward lwn' 9 -nternational law aspects of the German reunification

alternati2e answers to the German question”8

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howe$er' which resides in the 3eichstag building in Berlin' is less like the debating

parliament tpified b British parliamentar culture and corresponds far more closel to

the +( tpe of so%called working parliament2. The BundestagNs e)pert parliamentar

committees discuss the bills introduced to Parliament in detail7.

The BundestagNs e)pert Parliamentar Committees discuss the bills introduced to

Parliament in great detail6. -ere' the acti$ities of the Bundestag resemble to some e)tent

Congress in the +(A' the prototpe of a working parliament. The third ma#or function of

the Bundestag is to keep a check on the go$ernmentNs work. It is the opposition that

fulfills the function of monitoring the work of go$ernment in a manner $isible to the

general public. A less e$ident' but no less effecti$e form of control is carried out b the

members of parliament of the go$erning parties' who behind closed doors ask the

go$ernment representati$es critical uestions.

0;. The &ederal Chancellor and the Go$ernment8

The &ederal Chancellor is the onl member of the &ederal Go$ernment to be elected.

The constitution empowers him to personall choose his ministers' who head the most

important political authorities. ,oreo$er it is the Chancellor who determines the number

2 Ibid.

7 Ibid.

6 Ibid.

-erbert' Georg.


23/28

of ministries and their responsibilities1. It is he who las down the guidelines of

go$ernment polic. These outline the ChancellorNs right to stipulate binding go$ernment

acti$ities. This authorit gi$es the &ederal Chancellor a whole arra of instruments of

leadership that easil stands up to a comparison with the power of the President in a

presidential democrac1;.

The Parliamentar Council' which in 0121 resol$ed the Basic Law' took as its role model

for the &ederal Chancellor the position of the Prime ,inister in Great Britain10. The

Prime ,inister possesses e)actl the same means of power as that of Chancellor' though

the latterNs power is actuall far less than that of the British premier 1". In the British

parliamentar sstem onl one part is e$er in power' because the first%past%the%post

sstem there fa$ors the strongest part. As a rule' in the Bundestag no one part has a

clear ma#orit. &or this reason a coalition is normall necessar to be able to elect a

Chancellor 1/.

The election of the Chancellor is preceded b e)tensi$e negotiations between those

parties that plan to go$ern together 12. These address specific topics such as how the

ministries are to be di$ided up between the parties' which ministries are to be maintained

and which newl created17. The strongest part in the alliance is accorded the right to

propose the &ederal Chancellor. In addition the parties agree on the policies the intend to

1 Ibid.

1; Ibid.

10 A$ailable at http8==germanhistordocs.ghi%dc.org=sub>document.cfmJ

document>idO"7.

1" Ibid.

1/ (upra at 6.

12 (upra at 10.

Page ! "/


24/28

tackle in the ne)t few ears16. The results of these coalition negotiations are enshrined in

the coalition treat. Enl when these steps ha$e been completed is the Chancellor

elected1. *egotiations between the go$ernment parties prepare the decisions taken b the

&ederal Go$ernment and accompan them afterwards. (hould there no longer be political

consensus between the parties before general elections for a new Bundestag are due'

remo$ing the Chancellor from office becomes an alternati$e1. (hould a constructi$e $ote

of no confidence result in the current Chancellor indeed being remo$ed from office' a

new Chancellor must be elected at the same time11. This repeal of parliamentar

confidence forces the parties represented in the Bundestag to form a new' functioning

go$ernment ma#orit before the bring down the Chancellor 0;;. There ha$e onl been two

pre$ious attempts to bring down the Chancellor' onl one of which succeeded' namel in

01" when a $ote of no confidence was passed against the Chancellor -elmut (chmidt

9(PD:' who was replaced b -elmut Kohl 9CD+:0;0.

-owe$er' at an time the &ederal Chancellor himself can also propose a $ote of no

confidence in the Bundestag to test whether he still en#os the unlimited support of the

17 Ibid.

16 Ibid.

1 Ibid.

1 urgen -artmann' 4$he *undamental Pillars of Democracy”, a$ailable at


democrac.

11 (upra at 02.

0;; Ibid.

0;0 (upra at 1.

Page ! "2


25/28

go$erning parties0;". (hould the Chancellor lose the $ote this indicates that parts of the

go$ernment ma#orit are drifting awa from the Chancellor' lea$ing the &ederal President

to decide whether the Bundestag should be dissol$ed and a general election held0;/. The

&ederal President can also reuest the parties represented in the Bundestag to tr and

form a new go$ernment0;2.

In the histor of the &ederal 3epublic there has ne$er been a genuine defeat in a $ote of

no confidence. There ha$e on three occasions been pre$iousl arranged defeats8 The

elected representati$es of the go$ernment parties or the ministers abstained in order to

bring down the go$ernment in 01"' 01"' and ";;70;7. This course of action was taken

in order to prematurel dissol$e the Bundestag' which according to the constitution is

otherwise not possible. It can onl be taken with the appro$al of the &ederal President

and is legall not uncontro$ersial0;6.

00. Political Parties8

In contrast to ?eimar' political parties are e)plicitl mentioned in the constitution' i.e.'

officiall recognied as important participants in politics. Parties are obliged to adhere to

the democratic foundations of the German state. Parties found in $iolation of this

reuirement ma be abolished b the constitutional court. In the ?eimar 3epublic' the

public image of political parties was clearl negati$e and the were often regarded as

$ile. At the same time there was no obligation to adhere to democratic standards 9in

0;" 3ussell ,iller' 4Germany5s &asic Law and the use of *orce”, 0 I *DIA*A E+3*AL

E& GLEBAL LGAL (T+DI( 01 9";0;:.

0;/ A)el Tchentser' 4$he &asic Law '()'”, a$ailable at http://ssrn.com/abstract=1501131.

0;2 Ibid.

0;7 (upra at 6.

0;6 Ibid.

Page ! "7


26/28

contrast' the Basic Law stipulates that partiesF


27/28

BIBLIOGRAPHY

1. A)el Tchentser' 4$he &asic Law '()'”, a$ailable at http://ssrn.com/abstract=1501131 .

". 3ussell ,iller' 4Germany5s &asic Law and the use of *orce”, 0 I *DIA*A E+3*AL E&

GLEBAL LGAL (T+DI( 01 9";0;:.

/. urgen -artmann' 4$he *undamental Pillars of Democracy”, a$ailable at


democrac.

18 ohnson' dward lwn' 9 -nternational law aspects of the German reunification

alternati2e answers to the German question”85. -erbert' Georg.


28/28

0. utta Limbach' 4 "ow a Constitution can safeguard democracy# $he German

E%perience”, a$ailable at https8==www.law.hku.hk=ccpl=Docs=uttaLimbach.pdf.

salient features of german constitution

Documents