TAT_Politik

Fundamental pillars of democracy

The interaction of political institutions within a federation on the basis of the Basic Law.
March 9, 2013 by Jürgen Hartmann

The political system of the Federal Republic of Germany represents the second democratic system in German history. At the Parliamentary Council when designing the new constitution, the Basic Law, the founders of the Federal Republic took into account the lessons that had been learned from the failure of the first democracy, namely the Weimar Republic, and the Nazi dictatorship. The Federal Republic of Germany was born from the ashes of World War II. And in 1949 democracy was established only in the Western section of a Germany that had been divided into two states. Yet the Basic Law, although originally intended as a temporary solution, stated that its goal was reunification “in free self-determination”.

The second German democracy turned out to be a success. There were several reasons for this, among which were the value placed on a way of life based on the principle of liberty following the dictatorship and a striving for acceptance by the country’s democratic neighbors. But the Basic Law also had its role to play in the success. In 1990, when 40 years of German division came to an end, the Basic Law was adopted as the constitution of a united Germany.

The Basic Law

The Basic Law determines that Germany is a constitutional state: All state authorities are subject to judicial control. Section 1 of the Basic Law is of particular relevance. It stipulates that respect for human dignity is the most important aspect of the constitution: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” Among other things, the other basic rights guarantee the freedom to act within the law, equality before the law, freedom of the press and media, freedom of association and protection of the family.

In determining that it is the people who exercise power through special bodies, the Basic Law lays down representative democracy as the form of rulership. Furthermore, it determines that Germany is a constitutional state: All state authorities are subject to judicial control. Another principle of the constitution is that Germany is a federal state, in other words the ruling authorities are divided up into a number of member states and the central state. In conclusion, the Basic Law defines Germany as a welfare state. The welfare state requires the political system to take precautions such that people are guaranteed a decent standard of material well-being in case of unemployment, disability, illness and in old age. One particular feature of the Basic Law is the so-called “eternal character” of these governing constitutional principles. Subsequent alterations to the Basic Law or a completely new constitution cannot encroach on the basic rights, the democratization of sovereignty, the federal state and the welfare state.

In determining that it is the people who exercise power through special bodies, the Basic Law lays down representative democracy as the form of rulership. Furthermore, the constitutions of the German federal states stipulate instruments of direct democracy. With a popular initiative a minimum required number of citizens can call on a state parliament to draw up a law. In the same way a petition for referendum demands that the parliament pass a bill that has been presented. Should the parliament not heed the petition a referendum is held, through which the majority can determine the law.

The political parties

According to the Basic Law it is the task of the political parties to participate in political will formation by the people. As such, putting forward candidates for political office and the organization of election campaigns both have the status of constitutional tasks. For this reason the parties are reimbursed the costs they incur in their respective election campaign. The reimbursement of election campaign costs, a feature Germany was the first country to introduce, is now commonplace in most democracies. According to the Basic Law, a political party’s internal organization must conform to democratic principles (member democracy). And all parties are expected to acknowledge the values and structure of the democratic state.

Parties whose commitment to democracy is in doubt can, at the request of the Federal Government, be banned from participation in the country’s political life. However, such a ban is not automatically forthcoming in any sense. Should the Federal Government consider a ban to be appropriate because such parties pose a threat to the democratic system, it can only petition for such a ban. Any such ban may only be enacted by the Federal Constitutional Court after duly considering the individual case. The idea is to prevent the ruling parties simply banning those parties who might prove awkward in the fight for votes. In the history of the Federal Republic there have been few banning processes, and even fewer parties have actually been banned. Though the Basic Law accords political parties some privileges, these are, basically, means for society to express itself. They take full responsibility for failing at elections, a loss of members, or strife in conjunction with personnel and factual issues.

The German party system is quite transparent. Through the establishment of the Greens in the 1980s and, following unification in 1990, the successor party to the SED, a long-standing tri-party system developed into a stable five-party system. Alongside the “popular” parties CDU/CSU and SPD the “minor” parties also won a double-digit percentage of the votes cast in the 2009 elections to the Bundestag. With the exception of Bavaria, throughout Germany the Union parties, and they are both members of the European Christian Democrat group of parties, stand as the Christian Democratic Union. The CDU itself declines to stand in Bavaria, preferring to leave the region to the Christian Social Union, with which it is closely allied. In the Bundestag the members of parliament of both parties have joined forces to create a permanent parliamentary party.

The Social Democratic Party of Germany is the other major force in the German party system. It belongs to the European group of Social Democratic and democratic socialist parties. CDU/CSU and SPD support a welfare state. Whereas the CDU/CSU attract the self-employed, businessmen and entrepreneurs, the SPD has close links to the unions. The Free Democratic Party belongs to the European group of liberal parties. Its political creed is that of the state being involved as little as possible in the economy. The FDP receives backing primarily from well-educated high-earners.

The Greens belong to the European group of green and ecological parties. The characteristic feature of their program is the combination of market economy and decrees pertaining to nature and environment protection that must be monitored by the state. They too represent higher-income voters with an above-average standard of education. The Left Party is the most recent important political party in Germany. It is particularly strongly represented in the five federal states that acceded to the Federal Republic on unification. In the remaining states as well, however, it is now represented in the state parliaments. As a party that propagates social justice it competes primarily with the SPD. With its slogan “Make Way for Change”, the Pirate Party is on the way to asserting itself as a political force. Among other things, it stands for civil rights, direct democracy, freedom of information and the free exchange of knowledge.

The electoral system

The German electoral system makes it very difficult for any one party to form a government on its own. This has only happened once in 56 years. An alliance of parties is the general rule. So that the voters know which partner the party they voted for is considering governing with, the parties mostly issue coalition statements before embarking on the election campaign. By voting for a particular party citizens thus express on the one hand a preference for a specific party alliance, and on the other determine the balance of power between the desired future partners in government.

The Bundestag

The Bundestag is the elected representation of the German people. Technically speaking half the 598 seats in the Bundestag are allocated by means of the parties’ state lists (the second vote) and the other half by the direct election of candidates in the 299 constituencies (the first vote). This division changes nothing with regard to the key role of the parties in the electoral system. Only those candidates who belong to a party have any chance of success. The party to whom members of the Bundestag belong is meant to reflect the distribution of votes. In order to prevent complications in the formation of majorities by the presence of small and very small parties a five-percent threshold is designed to stop their being represented in the Bundestag.

The Bundestag is the German parliament. Its elected representatives are organized in parliamentary parties and select a President from among them. It is the function of the Bundestag to elect the Federal Chancellor and keep him in office through support for his policies. The members of parliament can relieve the Chancellor of his duties by denying him their confidence, as do other parliaments. Nor does it make any great difference that in Germany the Chancellor is elected, whereas in Great Britain and other parliamentary democracies he is appointed by the head of state. In other parliamentary democracies, a party leader who can rely on a parliamentary majority is always appointed head of government.

The second major function of the elected representatives in the Bundestag is to pass legislation. Since 1949 over 10,000 bills have been introduced to Parliament and more than 6,600 laws enacted. These were predominantly amendments to existing acts. Here, again, the Bundestag is similar to parliaments in other parliamentary democracies in that it for the most part enacts bills proposed by the Federal Government. The Bundestag however, which resides in the Reichstag building in Berlin, is less like the debating parliament typified by British parliamentary culture and corresponds far more closely to the US type of so-called working parliament. The Bundestag’s expert parliamentary committees discuss the bills introduced to Parliament in detail.

The Bundestag’s expert Parliamentary Committees discuss the bills introduced to Parliament in great detail. Here, the activities of the Bundestag resemble to some extent Congress in the USA, the prototype of a working parliament. The third major function of the Bundestag is to keep a check on the government’s work. It is the opposition that fulfills the function of monitoring the work of government in a manner visible to the general public. A less evident, but no less effective form of control is carried out by the members of parliament of the governing parties, who behind closed doors ask the government representatives critical questions.

The Federal President

The Federal President is the head of state of the Federal Republic of Germany. He represents the country in its dealings with other countries and appoints government members, judges and high-ranking civil servants. With his signature, acts become legally binding. He can dismiss the government and, in exceptional cases, dissolve parliament before its term of office is completed. The Basic Law does not accord the Federal President a right of veto such as is held by the President of the United States and other state presidents. Though the Federal President confirms parliamentary decisions and government proposals with regard to ministers, he only checks whether they have come about by the due procedure in accordance with the Basic Law.

The Federal President remains in office for a period of five years; he can be re-elected only once. He is elected by the Federal Convention, which is made up of members of the Bundestag, on the one hand, and by an equal number of members selected by parliaments of the 16 federal states, on the other.

The Federal Chancellor and the government

The Federal Chancellor is the only member of the Federal Government to be elected. The constitution empowers him to personally choose his ministers, who head the most important political authorities. Moreover it is the Chancellor who determines the number of ministries and their responsibilities. It is he who lays down the guidelines of government policy. These outline the Chancellor’s right to stipulate binding government activities. This authority gives the Federal Chancellor a whole array of instruments of leadership that easily stands up to a comparison with the power of the President in a presidential democracy.

The Parliamentary Council, which in 1949 resolved the Basic Law, took as its role model for the Federal Chancellor the position of the Prime Minister in Great Britain. The Prime Minister possesses exactly the same means of power as that of Chancellor, though the latter’s power is actually far less than that of the British premier. In the British parliamentary system only one party is ever in power, because the first-past-the-post system there favors the strongest party. As a rule, in the Bundestag no one party has a clear majority. For this reason a coalition is normally necessary to be able to elect a Chancellor.

The election of the Chancellor is preceded by extensive negotiations between those parties that plan to govern together. These address specific topics such as how the ministries are to be divided up between the parties, which ministries are to be maintained and which newly created. The strongest party in the alliance is accorded the right to propose the Federal Chancellor. In addition the parties agree on the policies they intend to tackle in the next few years. The results of these coalition negotiations are enshrined in the coalition treaty. Only when these steps have been completed is the Chancellor elected. Negotiations between the government parties prepare the decisions taken by the Federal Government and accompany them afterwards. Should there no longer be political consensus between the parties before general elections for a new Bundestag are due, removing the Chancellor from office becomes an alternative. Should a constructive vote of no confidence result in the current Chancellor indeed being removed from office, a new Chancellor must be elected at the same time. This repeal of parliamentary confidence forces the parties represented in the Bundestag to form a new, functioning government majority before they bring down the Chancellor. There have only been two previous attempts to bring down the Chancellor, only one of which succeeded, namely in 1982 when a vote of no confidence was passed against the Chancellor Helmut Schmidt (SPD), who was replaced by Helmut Kohl (CDU).

However, at any time the Federal Chancellor himself can also propose a vote of no confidence in the Bundestag to test whether he still enjoys the unlimited support of the governing parties. Should the Chancellor lose the vote this indicates that parts of the government majority are drifting away from the Chancellor, leaving the Federal President to decide whether the Bundestag should be dissolved and a general election held. The Federal President can also request the parties represented in the Bundestag to try and form a new government.

In the history of the Federal Republic there has never been a genuine defeat in a vote of no confidence. There have on three occasions been previously arranged defeats: The elected representatives of the government parties or the ministers abstained in order to bring down the government in 1972, 1982, and 2005. This course of action was taken in order to prematurely dissolve the Bundestag, which according to the constitution is otherwise not possible. It can only be taken with the approval of the Federal President and is legally not uncontroversial.

The federal structure

The German federal state is a complex entity. It consists of a central Federal Government and 16 federal states. The Basic Law lays out which issues fall within the ambit of the Federal Government and which devolve to the federal states. As such the federal system in Germany is similar to that of other federal countries. Public life in Germany is predominantly based on central laws. In accordance with the principle of subsidiarity citizens, on the other hand, deal almost exclusively with state and local authorities acting on behalf of the federal states. The reason for this is the aim of the Basic Law to combine the advantages of a unified state with those of a federal state. In everyday life the citizens of other federal states have far more frequent dealings with representatives of central government.

The Basic Law stipulates that it be possible to compare living conditions throughout Germany. Essentially these are determined by economic and social policy. With regard to financial policy the German constitution accords the federal states considerable leeway in the financing of their duties. All high-revenue taxes are decreed by law, though this needs the approval of the Bundesrat, which represents the states at federal level. Part of these taxes goes to central government alone or to the federal states and another part, including the particularly lucrative taxes, is divided up between central government and the federal states. To this extent the German federal state resembles a centralized state. Nonetheless it is the federal states that control the major part of pan-state administration. This means that federalist elements dominate the state administrative systems. First, its own administrative system enforces the laws that apply in that particular state. In addition they also execute most central laws. Given the large number of duties passed down from central government to the federal states several of them have, in the past, had to take on enormous debts. In 2009 an amendment was made to the constitution forbidding them to raise further loans as of 2020 and limiting the amount of new debts central government can take on from 2016 – with a proviso for economic crisis situations – to a maximum of 0.35 percent of the gross domestic product (the debt ceiling).

There are three pan-state functions the individual federal states exercise on their own: schooling and tertiary education, internal security, including policing, as well as the organization of local self-government. Thanks to the wide-ranging rights pertaining to guaranteed participation they enjoy in the Bundesrat, the federal states receive a form of compensation for the fact that central government is the primary body determining legislation.

The Bundesrat

The Bundesrat represents the federal states and alongside the Bundestag is a form of Second Chamber. It is obliged to deliberate on each federal law. As the chamber of the federal states, the Bundesrat has the same function as those Second Chambers in other federal states that are mostly referred to as the Senate. The Bundesrat is made up exclusively of representatives of the federal state governments. The number of votes each state holds is aligned in a sense to the size of its population: Each state has at least three, and those with the highest populations up to six.

The Bundesrat plays a part in the passing of federal legislation. Here, it differs from the Second Chamber of other federal states. The Basic Law envisages two forms of participation. Central laws that cause the federal states additional administrative costs or replace existing central laws require the approval of the Bundesrat: The latter is required to endorse laws passed by the Bundestag for these to become legally binding. In this regard, the Bundesrat enjoys the same rights as the Bundestag in terms of being a legislative organ. Currently almost 50 percent of all laws passed require the approval of the Bundesrat. Since federal laws are in principle enforced by the administrative bodies of the federal states, the most important and most costly laws involve the administrative sovereignty of the federal states. A difference should be made between these approval laws and the appeal laws. Though the Bundesrat can reject the latter, the Bundestag can overrule the objection with the same majority as in the Bundesrat, with a simple or two-thirds majority, in the event of the latter with at least the majority of the members of the Bundestag (absolute majority).

Since September 2006, the reform of the federal system has recalibrated the respective scope of central government and of the individual federal states. The goal of the reform: to improve the decision-making abilities and scope for action of both central government and the federal state governments, and to more clearly assign political responsibilities.

The Federal Constitutional Court

The Federal Constitutional Court is a characteristic institution of post-war German democracy. The Basic Law accorded it the right to repeal legislation passed as part of the legitimate democratic process should it come to the conclusion that such legislation contravenes the Basic Law. The Constitutional Court acts only when appealed to. Those entitled to lodge a complaint include the federal bodies Federal President, Bundestag, Bundesrat, Federal Government and their constituent parts – elected representatives or parliamentary parties – as well as federal state governments. In “constitution-related” disputes, the Constitutional Court acts to protect the division of powers guaranteed in the Basic Law and the federal state. In order to enable parliamentary minorities to be able to appeal to the Constitutional Court, one third of the elected representatives of the Bundestag is sufficient to submit a complaint against a valid law (“abstract judicial review”).

Furthermore, the Basic Law empowers individual citizens to launch a “constitutional complaint” should they feel that the state has infringed their basic rights. Year after year thousands of citizens register a complaint against the constitution. However, the Court reserves the right to select from the mass of petitions submitted only those that can be expected to result in verdicts that point the way ahead in terms of the validity of basic rights. Ultimately every German court is obliged to submit a petition for actual assessment of the normative basis to the Constitutional Court should it consider a law to be un-constitutional. The Federal Constitutional Court holds a monopoly on interpretation of the constitution with regard to all jurisdiction.

Germany and Europe

Germany is a parliamentary democracy. The government policy is determined by the head of government and the ministers, and not by the head of state. Given the high standards with regard to the constitutional state and democracy as a result of the Basic Law, the Federal Constitutional Court is a player in the European political arena. The court has illustrated on several occasions that European law must satisfy the criteria of the Basic Law if Germany is to relinquish to the EU the rights to draw up its own laws. In this respect to a certain extent the “eternal guarantee” of applicable principles with regard to the Basic Law vie with the Basic Law’s commitment to European integration. In June 2009 in a landmark decision the Federal Constitutional Court stated that the Bundestag must also be substantially involved in European decision making even if it is not called on as a ratification organ for the European treaties.

March 9, 2013 by Jürgen Hartmann