133 / 300
LEGAL EUROPE
West Germany: The Failure of Federalism
by JOSEPH MATHEWS, Barrister at Law
The Constitution of West Germany (known as the Basic
Law) describes Germany as a "Democratic and Social
Federal State"—a Federation (Bund) consisting of
Lands (Laender). The Germans chose the word Grund-
gesetz (Basic Law) rather than Verfassung (Consti-
tution) because to them the latter word suggests a
hybrid creation; the former expresses the belief that
human law should be based on ultimate moral prin-
ciples. But, today, the internal politics of West Ger-
many shows that there is some distinction between
German Constitutional theory and practice—and there
is strong evidence to suggest that West Germany today
has fallen far short of her position as outlined in the
Basic Law—so much so that she is no longer a truly
democratic or federal state.
T o assess whether West Germany, a leading partner
in the enlarged European Economic Community, falls
short of being the democratic Federal State which its
Constitution says it is, it is first necessary to outline
briefly the necessary conditions for a Federation. If a
state is to be federal it must fulfil at least five condi-
tions. A federal state requires a written Constitution;
a recognised method of amending the Constitution; a
Supreme Court to interpret that Constitution; a second
chamber in the Legislature is extremely useful (if not
essential); and the Federation must decide how the
power of making and enforcing laws is to be divided
between the Federation itself and the member states.
West Germany would appear to fulfil these necessary
conditions. The Basic Law provides the written Consti-
tution for the Federation. The West German Federal
Constitutional Court is the recognised interpreter of
that
Constitution.
Proceedings
for
Constitutional
amendment are laid down in the Basic Law. A second
chamber exists in the Federation in the form of the
Bundesrat, and, lastly, the distribution of power and
law enforcement between the Bonn Government and
the Laender is worked out by law. Th e essential prin-
ciple of Federal Government is missing in West Ger-
many however, for the Federal principle means that
the method of dividing powers in a Federal State is such
that the General and Regional governments are each
within a sphere co-ordinate and independent and this
is not the case in Germany.
West Germany a tight Federation
The Basic Law has made West Germany a tight
rather than a lose Federation and the degree of rigid
control that is exercised by the Bonn Government over
the Laender is a pointer that West Germany today has
not lost the "Reich Typ e" mind. Bonn Government to
the average German means government of irrebuttable
decision, whereas Laender Government usually means
only implementing directives from Bonn. The status and
authority of the German Laender continues to diminish,
and, even within their own sphere of limited authority»
member states (such as Bremen, Lower Saxony, Hesse)
seem content to merely implement federal decisions an®
leave even their own policy-making spheres safely
1,1
the hands of Big Brother Bonn.
Federal Government is based essentially on partner-
ship and power between National Government and th
e
member states of the Federation. The essential point i
s
not that the division of power is made in such a way
that the regional governments are the residuary legated
under the Constitution—but the division is made
111
such a way that, whoever has the residual powe
r
>
neither general nor regional government is subordinate
to the other. In the case of West Germany in the matter
of division of powers, the regional governments are very
much the dominated partners and the Laender hardly
qualify for the status of "partners in power" with the
National Government at Bonn. In theory the area
0
authority of the Regional Governments covers a reason-
able area of legislative jurisdiction—education,
culture.
religious affairs, police, local government, parts of ag
r1
'
cultural regulation, and intra-governmental
matter
5
pertaining to their administrative agencies, finances an
civil services. But, in practice, the Federal
Governmen
can enact federal laws for the Laender areas of policy
and leave the Laender to administer any federal
fram
e
'
work laws deemed necessary for the member states. B
ut
'
if the status of member states of the Federation is
to
b
e
worth having, all Member States ought to be c omp l e te
free to legislate, independent of the Federal
Govern-
ment, in their own constitutionally decided spheres
0
authority. But in West Germany almost all areas
0
importance in the field of government are given to th
e
Federal Government at Bonn—Bonn alone has poW
er
over foreign affairs, defence, citizenship,
immigration'
communications, Federal employees, Federal rail an®
air traffic and co-ordination of police activity
(botn
Federal and State).
There is, of course, a wide area over which hot'
1
Federation and Lands may legislate, but again, *b
e
Federal Government is the far stronger partner in th|
s
area and may take over the field completely if it
15
necessary to secure "uniformity" or if Bonn judges th*
the relevant matter cannot be effectively regulated by
Land legislation. This field includes the Constitution
and procedure of law courts, rights of citizenship
li]
the lands, laws affecting land, industry and commerce
public ownership, laws affecting labour, social insuí'
ance and—a wide phrase—"Public Welfare"; also, non-
Federal railways, road traffic, shipping and the contr°
of pests and infectious diseases!
Where Federal afl®
Land laws in these matters conflict, the former
ar
f
always to prevail.
The distribution of power is sue®
that, as time goes by, Federal legislation predominate
more and more. Under the present system the Bon'
1
block of power must increase and it would appear
the present relationship between the Federal Govern-
132