DEUTSCH
ENGLISH
ESPAÑOL
FRANÇAIS
..
THE BASIC LAW
THE CONSTITUTIONAL BODIES
THE LEGAL SYSTEM
FEDERALISM & SELF-GOVERNMENT
PARTIES & ELECTIONS
COUNTRY AND LANDSCAPE
THE "LÄNDER" (STATES/COUNTRIES)
THE PEOPLE
THE STATE OF HAMBURG
HISTORY UP TO 1945
HISTORY PAST 1945
HAMBURG HISTORY
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X
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The Basic Law


In 1999 the Germans will be able to look back on a half century of experience with their constitution, the Basic Law. Already on the occasion of the Federal Republic’s 40th anniversary in 1989, the Basic Law was acknowledged to be the best and most liberal constitution Germany had ever had. More than any previous German constitution, the Basic Law has been accepted by the people. It created a state and society which so far has been spared any serious constitutional crises. On the occasion of the 50th anniversary celebration, one of the events is to be a international symposium addressing the issues of basic values and aims of the state in Germany and in Europe.

The Basic Law for the Federal Republic of Germany was adopted in 1949. Its authors intended it as a “temporary“ framework for a new democratic system, not as a definitive constitution. The Basic Law called upon the people “to achieve in free self-determination the unity and freedom of Germany“.

As time passed by, the Basic Law proved to be a solid foundation for democracy. Its requirement of national reunification was fulfilled in 1990. The preamble and concluding article of the Basic Law were amended in accordance with the Unification Treaty, which formed the basis for the accession of the German Democratic Republic (GDR) to the Federal Republic. They now state that, by virtue of the GDR’s accession, the German people have achieved their unity. Since 3?October 1990 the Basic Law has been valid for the whole nation.

The Basic Law’s content was greatly influenced by the personal experience of its authors under the National Socialist dictatorship. In many parts it clearly indicates that they were trying to avoid the mistakes that had been partly responsible for the demise of the Weimar democracy. The framers of the constitution in 1948 were the state parliaments of the states that had been formed in the Western occupation zones and the Parliamentary Council elected by the state parliaments. This Council, which was chaired by Konrad Adenauer, adopted the Basic Law on 8?May 1949. After ratification by the state parliaments, the Basic Law was promulgated by the Parliamentary Council on 23?May 1949.

The basic rights. Pride of place in the constitution is given to a charter of basic rights, the first of which obliges the state to respect and protect the dignity of man. This guarantee is supplemented by the right to self-fulfillment. It affords comprehensive protection against unlawful interference by the state. Both Germans and non-Germans can invoke these constitutional rights. The classical freedoms embodied in the Basic Law include freedom of religion, freedom of expression (including freedom of the press) and the guarantee of property. There are also freedom of art and scholarship, freedom of association, the right to form coalitions, the right to privacy of correspondence, posts and telecommunications, freedom of movement, free choice of occupation or profession, protection from forced labor, privacy of the home, and the right of conscientious objection.

The civil rights, which in contrast to the aforementioned rights apply only to German nationals, relate for the most part to the latter’s involvement in the political process and free choice of occupation or profession. In essence they include freedom of assembly, the right to form associations, partnerships and corporations, freedom of movement throughout (including the right to enter) the federal territory, freedom of choice and practice of an occupation or profession, the ban on extradition, and the right to vote.

These freedoms are accompanied by rights which guarantee equality. The Basic Law expresses the general principle that all people are equal before the law by providing that no one shall be prejudiced or favored because of their sex, birth, race, language, national or social origin, faith, religion or political opinions, nor may anyone be discriminated against on account of their disability. It expressly states that men and women have equal rights and that all Germans are equally eligible for any public office.

The basic rights also deal with the protection and guarantee of social institutions such as marriage, family, church and school. Some basic rights are expressly formulated as entitlements to services and benefits, for example that every mother is entitled to the protection and care of the community.

One basic right, which by its very nature can only apply to foreigners, is the right of political asylum. The Basic Law is the first German constitutional instrument to provide refuge in Germany for foreigners persecuted on political grounds. The influx of hundreds of thousands of asylum-seekers over the years, the great majority of whom were not subject to political persecution in their native countries and whose motives were mainly economic, was getting out of control and threatened to undermine the basic right of asylum for genuine cases of persecution.

After a long and often passionate debate between those in favor of an unrestricted basic right of asylum –?which had been in effect in the Federal Republic of Germany since 1949 and had no precedent anywhere in the world – and those who felt the time had come to bring the law of asylum into line with present-day requirements and the laws of the other Western European countries while concurrently preserving its essence, the German Bundestag adopted an amendment to the country’s asylum law with the necessary two-thirds majority. Thus without violating the principle that “anyone persecuted on political grounds has the right of asylum“, a new Article 16a of the Basic Law entered into force in July 1993 which made possible a new law of asylum and asylum procedure. The essence of the comprehensive reformulation of the law of asylum is:

• Foreigners who enter the country from member states of the European Union or other “safe third countries“ (countries where application of the Geneva Convention relating to the Status of Refugees and the European Convention for the Protection of Human Rights and Fundamental Freedoms is assured) may not invoke the right of asylum, nor do they have a right to stay in the country temporarily.

It is presumed that foreigners from “safe third countries“ (countries in which it appears assured that neither political persecution nor inhumane or degrading punishment or treatment takes place) are not subject to persecution on political grounds.

The procedure for dealing with applications has been shortened.

Applicants can no longer abuse the system by submitting multiple claims for social welfare.

As a general rule, asylum-seekers receive non-cash benefits.

According to the Basic Law, certain basic rights may be restricted directly by or indirectly pursuant to other laws. Never, however, may a law encroach upon the essence of a basic right. The basic rights are directly enforceable law. This was a crucial innovation compared with previous constitutions, whose basic rights were largely non-binding declarations of intent. Today all three branches of government – the parliaments as legislators as well as the governments and the courts – are strictly bound by the basic rights, as are the administrative authorities, the police and the armed forces. Every citizen has the right, after exhaustion of all other legal remedies, to complain to the Federal Constitutional Court about any decisions or actions by the state which he or she feels violate his or her basic rights.

By acceding to the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1952, the Federal Republic of Germany subjected itself to international control (with effect from 1953). Under Article?25 of this Convention, the citizens of signatory states have the right to complain to the European Commission of Human Rights, even if this means taking their own government to task.

The 9th Supplementary Protocol to the Convention also affords citizens the opportunity to apply to the European Court of Human Rights for redress of individual complaints. In 1973 the Federal Republic also ratified the international covenants on human rights of the United Nations.

Fundamental characteristics of the state. The body politic is based on the following principles: Germany is a republic and a democracy; it is a federal state based on the rule of law and social justice. Its republican system is constitutionally manifest in the name “Federal Republic of Germany“ and in the fact that the head of state is the elected Federal President. A democracy is based on the sovereignty of the people. The constitution says that all public authority emanates from the people. It thereby opted for indirect, representative democracy: Public authority must be recognized and approved by the people but they have no direct say in the exercise of that authority, except in elections.

This responsibility is entrusted to the organs specially established by the constitution for this purpose: the legislature, the executive and the judiciary. The people mainly exercise their constitutional authority by periodically electing a new parliament. In contrast to some countries, provision for other forms of direct democracy, such as referendums, has been made only with regard to modifications of state boundaries.

The authors of the Basic Law opted for an “adversarial“ type of democracy, they having seen the Weimar Republic undermined by radical parties which were hostile to the constitution. In this context “adversarial“ means that the free play of political forces must stop where any party or faction attempts to do away with democracy with democratic means. This explains why the Basic Law makes it possible for the Federal Constitutional Court to ban political parties that seek to damage or destroy Germany’s democratic system.

The constitutional decision in favor of a federal state implies that not only the country as a whole but its 16 constituent parts, the Länder, have some of the features of a state. Each has its own powers, though they are restricted to certain spheres, which it exercises through its own legislature, executive and judiciary. Public responsibility has been apportioned in such a way that law-making is actually predominantly in the hands of the central state, the Federation, whereas the constituent states are primarily responsible for administration, in other words, implementation of the laws. This division of responsibilities is an essential element of the system of separation and balance of powers provided for in the Basic Law.

At the heart of the constitutional state established under the Basic Law is the concept of the rule of law. An essential element of its realization is the separation of powers. The exercise of public authority has been entrusted to parliament, government and the judiciary, each of which is independent of the others. The significance of this separation of powers is that the power of the state is qualified by mutual checks and balances. It thus protects the individual’s freedom. A second key element of the rule-of-law principle is that all action by the state is strictly bound by the law. This fundamental concept of the lawfulness of administration stipulates that the executive may not contravene the law in force, especially the constitution and the laws of the land (primacy of the law). Furthermore, encroachments upon an individual’s rights or personal liberty are only permissible on the basis of a law (proviso of the law). Any action by the state may be examined by independent judges as to its consistency with the law if the person or persons affected take the matter to court.

The principle of the social state is a modern extension of the traditional rule-of-law concept. It obligates the state to protect the weaker members of society and to seek social justice. Numerous laws and court rulings in Germany over the years have ensured the application of this principle, which manifests itself in the provision of old-age, invalidity, health and unemployment insurance, social assistance for needy people, housing supplements, the child benefit, and laws on industrial safety and working hours, to name but a few examples.

Amendments to the Basic Law. The Basic Law may only be amended with a majority of two thirds of the members of the Bundestag (Federal Parliament) and two thirds of the votes cast in the Bundesrat (Federal Council). Since a single party or a coalition of parties only very rarely has such a majority in both the Bundestag and the Bundesrat, amendments to the Basic Law require a very broad consensus. This can only be achieved with the support of members of the opposition.

Some provisions of the Basic Law may not be changed at all. These are the provisions relating to democracy, the federal system, the separation of powers, the rule of law and the social state. Likewise untouchable are the basic rights and freedoms as well as the commitment to protect the dignity of man. On 1 July 1993 an amendment to the Basic Law (Article 16a) entered into force which concerned the right of asylum (see chapter “The people“).

Amendments to the Basic Law with far-reaching practical implications in regard to the opening up of markets and European harmonization were adopted in connection with the privatization of the German Federal Railway (Article 87e, 20 December 1993) and the German Administration of Posts and Telecommunications (Article 87f, 30 August 1994) (see chapters “Traffic and transport“ and “Telecommunications and data communications“).

On 15?November 1994, amendments to the Basic Law entered into force which commit the state to protect the environment, ensure equal treatment of men and women, and protect the disabled. They also provide for changes in the distribution of legislative jurisdiction between the Federation and the states.

Another constitutional amendment became necessary as a result of the Maastricht Treaty on European Union. The Basic Law’s new Article 23 on the European Union makes it clear that the Federal Republic of Germany seeks the establishment of a united Europe which is based on democratic, rule-of-law, social and federal principles. The principle of subsidiarity plays a key role in this context. Article 23 also spells out how the Bundestag and the states are to be involved in the further development of European integration.


DEUTSCH
ENGLISH
ESPAÑOL
FRANÇAIS
.
THE BASIC LAW
THE CONSTITUTIONAL BODIES
THE LEGAL SYSTEM
FEDERALISM & SELF-GOVERNMENT
PARTIES & ELECTIONS
COUNTRY AND LANDSCAPE
THE "LÄNDER" (STATES/COUNTRIES)
THE PEOPLE
THE STATE OF HAMBURG
HISTORY UP TO 1945
HISTORY PAST 1945
HAMBURG HISTORY
X
X
X


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