Comparative Law Spring 2002Professor Susanna FischerCLASS 11THE GERMAN CONSTITUTION IIIBASIC RIGHTSFeb. 4, 2002

Brainteaser

Why are there 669 members of the Bundestag when there are only 328 constituencies and 328 + 328 = 656?

Brainteaser

Why are there 669 members of the Bundestag when there are only 328 constituencies and 328 + 328 = 656?Because if a party gets more direct constituency votes than it gets in the Land list votes, it gets to hold those extra seats – this is the case right now for 13 SDP members. This is called “overhang mandates”

WRAP-UP POINTSAs part of the basic principle of “democracy”, the Basic Law guarantees political parties (see Art. 21) (as well as free, equal and secret elections – see Art. 38)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.

WRAP-UP POINTS

Currently, no one political party has a majority in the Bundestag.The following parties have seats in the Bundestag: Social Democratic Party, (SDP), Christian Democratic Union (CDU)/Christian Social Union (CSU), Alliance 90/Greens, Free Democratic Party (FDP), and Part of Democratic Socialism (PDS) The SDP and Alliance/90 have formed a coalition government.

WRAP-UP POINTSThere are 5 parliamentary groups (Fraktionen) (same parties/noncompetitive parties) in the current Bundestag: CSU/CDU, SDP, Alliance 90/Greens, FDP, PDS.Procedural Rules give parliamentary groups certain rights, e.g. introduce bills, table motions, move amendments to bills on 3d reading, etc..Parliamentary groups are main political forces in work of Bundestag.

WRAP-UP POINTSThere are parliamentary committees, as in all modern parliaments.See Art. 45, and 45a which requires a Committee on Foreign Affairs, Committee on Defense, and Committee on European UnionPublic doesn’t usually attend these metingsMost of the work of the Bundestag is done in these committees, since the plenary Bundestag wouldn’t have the time to look into the issues in the requisite detail.

WRAP-UP POINTSThe Bundesrat is the second house of the German parliament. It has 69 members from the Governments of the 16 Länder (which have 3-6 votes depending on population size). It is designed to represent regional interests, not party political interests.Every German constitution since the mid 19th century has had a body similar to the Bundesrat, designed to give the Länder a voice within the federal government.

BundesratParticipates in legislative process – must consent to bills adopted by the Bundestag before they can become law unless (if permitted for that type of bill) Bundestag overridesSome statutory instruments/ordinances also require consent of BundesratCan introduce bills in the BundestagFederal Government bills are first submitted to the Bundesrat for consultation (so that Bundestag will know Bundesrat’s position on a draft in order to prevent conflicts insofar as possible before the bill introduced in the Bundestag)

Enactment of Legislation

How is German legislation enacted?

Enactment of Legislation1. Introduction of legislation (by Federal Government, Bundestag, Bundesrat)2. Formal Vote in Bundestag3. If it obtains required Bundestag majority, goes to Bundesrat4. If consent is necessary, Bundesrat consents. If consent is not necessary, Bundesrat doesn’t object or is overriden by Bundestag.4. Countersigned by Chancellor & relevant federal minister; ratified by signature of Bundespräsident

Enactment of Legislation

1. Introduction of legislation in the Bundestag (Art. 76) by Federal Government (most common – these go to Bundesrat first for comment), Bundestag (by parliamentary group or 5% of members), or Bundesrat (via the Federal Government, which has to give its opinion – see Art. 76).

Vote of Bundestag

Draft bills are debated in three readings (Lesungen)Most bills need only a simple majority of Bundestag members, but amendments of the constitution requires 2/3 of the members of Bundestag (and Bundesrat).

Bundesrat’s Participation Arts 77 and 78. See Schedule 1 p. 105

Some laws, Zustimmingsgesetz, require Bundesrat consentAll bills will become law if Bundesrat consentsFor bills not requiring Bundesrat consent (Einspruchsgesetz), it could demand that bill be considered by joint mediation committee and once it is, if the Bundestag adopts the bill, the Bundesrat can object, though the Bundestag can override the objection.Bundestag or Federal government could request consideration by joint committee of conciliation if Bundesrat refuses to consent to a Zustimmingsgesetz

Statutory Instruments

What is a statutory instrument? See Art. 80 GG

Statutory Instruments – Delegated Legislation

What is a statutory instrument? See Art. 80 GG A statutory instrument is a kind of rule of law that is passed by an executive power rather than the legislative power. The executive who can enact statutory instruments are the Federal Government, a Federal Minister, or a Land Government. This is needed because federal legislative body can’t regulate details of all government programs. There is a requirement of legal authorization so that this provision does not destroy the legislative power of Parliament as had happened in 1933 (see Art. 80 – content, purpose and scope of authority must be specified by law)

Federal Government - Bundesregierung

Article 62 provides that the Federal Government is made up of:1. The Federal Chancellor (Bundeskanzler)2. The Federal Ministers (Bundesminister)

Bundeskanzler (Federal Chancellor)

Who is the current Federal Chancellor?What does the Federal Chancellor do? Does the Federal Chancellor have more or less power than the Bundespräsident?

Current Federal ChancellorGerhard SchröderSDP (with Greens as coalition partner)A new generation: – born at the end of WWIIOusted Helmut Kohl, chancellor since 1982 (CDU) – Kohl’s popular support suffered after reunification, particularly in the East

How Can a Chancellor Be Dismissed?

Voluntary ResignationDeathNewly-elected BundestagVote of No ConfidenceIf any apply, Chancellor is dismissed by the Bundespräsident

Richtlinien der Politik

What are the National Policy Guidelines?

Richtlinien der PolitikWhat are the National Policy Guidelines?These are established by the Chancellor as a frame for his or her political agenda, both domestic and foreignFederal Ministers, e.g., Foreign Minister Joschka Fischer (Greens), Finance (Hans Eichel SPD), Justice (Herta Daubler-Gmelin SPD) have to operate within these guidelines but within that framework, each minister conducts affairs of his or her department autonomously.

BASIC RIGHTS- Grundrechte

What are basic rights and where are they found in the Basic Law?

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 rights1871 Reichsverfassung did not1919 Weimar Constitution had basic rights, but these were suppressed in the Third Reich

Catalogue of Rights

The Basic Law spells out a number of basic rightsMust be clear but also flexible to meet changing circumstancesRemember A79 prohibiting amendment of A1 and A20. The essence of a basic right cannot be amended.

Rights are Both Subjective and Objective

Subjective Rights - rights of individual to be protected against State in particular circumstances, e.g. freedom of opinion, privacy of mail/telecommunications, right to propertyObjective Guarantees - rights apply as general guidelines for minimum standards that German government must observe e.g. equality, marriage, education

Who can claim the Protection of the Basic Rights: Menschenrechte vs. Deutschenrechte?

What is the difference?

Menschenrechte vs. Deutschenrechte

What is the difference?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

Who can claim the protection of the Basic Rights?

Who can claim the protection of the Basic Rights?

Individuals (provided sufficient capacity - e.g. a 5 year old can’t invoke Art. 12)Basic Rights, e.g. Art. 14 (right to own property), Art 5(1)(2) (freedom of press), are applicable to legal persons such as corporations, insofar as logical for them to do so (Art. 19 (3))In general, not the State

Who is Bound – Horizontal and Vertical Effect

Do the Basic Rights have Vertical Effect?Do they have Horizontal Effect?

Who is Bound – Horizontal and Vertical Effect

Do the Basic Rights have Vertical Effect? Yes, the Basic Rights restrict the power of the State vis-à-vis the individualDo they have Horizontal Effect? Not directly, but indirectly. Private law should be consistent with the Basic Rights, but the Basic Rights cannot be used directly to restrict the power of an individual vis-à-vis another individual. Example: Lüth case

Can the Basic Rights Be Restricted or Are They Absolute?

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 assembly ‘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

Basic Law and the Social State

The idea of a Social State (Art. 20, Art. 28(1)) is based on the idea of the primacy of human dignity (Art. 1).The state is under an obligation to guarantee legal protections but also social and economic conditions required to respect and protect human dignity, e.g. when drafting the budget or when enacting social or economic legislation.

RIGHT TO HUMAN DIGNITYMenschenwürdeArt 1: “The dignity of man shall be inviolable. To respect and to protect it shall be the duty of all state authority”The location of this provision at the beginning of the Basic Law shows its importance and the significant influence of Catholic social teaching and natural law thinking.It is often necessary to read this Basic Right together with others, e.g. Art. 2 (right to life)Prevents e.g. torture, slavery

Art. 2 – Personal Freedoms Right to free development of personality Right to life (see also Art. 102 prohibiting death penalty)Protects e.g. privacy (much more protection under German law than U.S. Law), ensures right of reply to attack in the mediaGuarantee of substantive due process in German law, in conjunction with proportionality principle