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Basic Law turns 75: How robust is the German constitution?

Basic Law turns 75: How robust is the German constitution?

On May 23, 1949, the Basic Law for the Federal Republic of Germany came into force. Its architects wanted to create a bulwark against future dictatorships. But does the constitution, which is 75 years old today, stand up to the present?

The year is 1949: The Nazis have been defeated, the Third Reich has been destroyed. Germany is literally and politically in ruins. The occupying powers must plan the future of a defeated nation, set a direction without immediately awakening fantasies of great power. And so they have a document drawn up that is intended to prevent another dictatorship and establish the new Federal Republic: the Basic Law.

The authors had experienced for themselves how the Weimar Republic was destroyed from within and how a democracy had turned into a dictatorship. Their focus was therefore on creating a robust democratic basic order in order to prevent authoritarian regimes in the future at all costs. The first German Basic Law came into force on May 23, 1949; today it is 75 years old. Not a particularly short time, considering the crises that have swept through the Federal Republic since then. Does the text stand up to the present?

Basic law against “Day X”

The Basic Law (GG) of 1949 was created against the backdrop of the National Socialists’ seizure of power on January 30, 1933. Extremism researchers call such a situation “Day X”: the government of a country is surprised and overthrown by a revolution from within or a total invasion from outside. The Weimar Republic was not prepared for this; its constitution had three fundamental errors: Articles 25, 48 and 53.

Article 25 stated: “The Reich President can dissolve the Reichstag.” Between 1930 and 1932, Reich President Paul von Hindenburg did this three times. The NSDAP in particular benefited from this, receiving 33.1 percent of the vote in the 1932 election.

Article 48 stated: “The Reich President may (…) take the measures necessary to restore public security and order.” This was a power that was formulated very vaguely and could be used extremely extensively. The Reich President could suspend basic rights in whole or in part. This weakened parliament enormously.

Article 53 stated: “The Reich Chancellor (…) is appointed by the Reich President.” No parliamentary majority was required for this. The appointment of Adolf Hitler as Reich Chancellor on January 30, 1933 effectively meant the end of the Weimar Republic.

The Parliamentary Council, which drafted the Basic Law, drew appropriate conclusions from these and other weaknesses of the Weimar Constitution.

Basic law without emergency clause

When it came into force, the Basic Law did not contain a so-called emergency clause that would have allowed a government to restrict certain basic rights in exceptional situations such as wars, natural disasters or serious economic crises. It was not until 1968 and after a long political struggle that such a provision was subsequently added to the Basic Law as Articles 115a to 115l.

To this day, they regulate the state of defense (armed attack on Germany), the state of tension (imminent threat of war) and the state of internal emergency (particularly serious threat to public order). They also determine what far-reaching measures the federal government can take in these cases.

The emergency laws are still controversial but have never been used. Their activation is subject to strict conditions and is controlled by both Parliament and the Federal Constitutional Court.

With net and double bottom

The eternity clause (Article 79, paragraph 3) is an integral part of the Basic Law. It states that changes are inadmissible that affect the division of the Federation into states, the basic participation of the states in legislation or the principles laid down in Articles 1 and 20. The clause prevents these fundamental constitutional principles from being touched, even if there were a parliamentary majority for it.

Except for the principles protected by the eternity clause, the Basic Law can be amended according to Article 79, paragraphs 1 and 2. However, this can only be done if two thirds of the members of the Bundestag and two thirds of the Bundesrat agree. Rapid or fundamental changes are therefore extremely difficult to implement.

Another important principle is constitutional jurisdiction. The Federal Constitutional Court therefore has the role of an arbitrator. It is supposed to ensure that all decisions made by the players (laws) are in line with the basic rules of the game (constitution). If this is not the case, the court can intervene and declare a law invalid. It also has the authority to ban parties that violate the free democratic basic order.

Weakness of the control authority

And yet the fact that the Constitutional Court acts as an arbitrator overseeing the Basic Law is also the greatest weakness of our constitution. A number of the court’s regulations can currently be changed with a simple majority in the Bundestag. In both Poland and the USA, the independence and impartiality of the highest courts have been undermined in this way.

Once the Federal Constitutional Court is paralyzed, there would be only a few obstacles to overcome in order to reshape the constitutional order by a simple parliamentary majority vote. Laws such as the Federal Elections Act, the Political Parties Act or the Rules of Procedure of the Bundestag could all be changed by a simple majority.

This would allow a parliamentary majority to control the electoral system, party financing and opposition rights. This control could be used to weaken or divide political rivals, similar to what has happened in countries such as Poland and Hungary.

The government and the opposition therefore want to better protect the Federal Constitutional Court from possible attempts to disempower it, especially by extreme parties; a first draft law has already been prepared. Accordingly, corresponding regulations are to be included in the Basic Law.

Source: Stern

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