The Gazette 1974

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member states in West Germany is not

tie between partners in power but a relationship

°mewhat analogous to that of "master and servant".

on between

.S. and German Federations

. Michael Stewart, Foreign Secretary in the last

abour Government in England, has suggested that the

^'ationship between the Federation and the Lands in

est Germany resembles that between the American

deral Government and the States—but an exam-

^ation of the German situation proves this statement

from fact. The American type principle of Feder-

^ism is only, in theory, operative in West Germany—

actual working of government in Germany shows

0vv

far, in this matter, theory is from practice. Unlike

a ^

° d e l (where both National Government

•

States maintain not only their own areas of

legislation, but also independent and frequently over-

administrative machinery), German Federalism

le characterised by the fact that the vast amount of

^gislation issues from Bonn and is merely administered

Jk-

bureaucracies, but the mode of Federalism

Hich operates in a Federation should never transgress

basic principle on which this form of government

^""-partnership in power,

s e r i o u s l

undermines the working of Federalism

y*est Germany today is the position of the Bundesrat

^ be second chamber of the National Legislature—

gned to guard the interests of the Lands against

oachment on the part of Bonn. Though West" Ger-

fo ^

anc

United States are said to operate the same

government, the Bundesrat can in no manner

Measure be compared with the United States Senate.

•JJ* Bundesrat

Bundesrat hardly qualifies for the term "second

, tnber". It is composed, not of directly-elected persons,

members of the Land Cabinets : thus it is a

il with a watching brief rather than a full partner

Pen

kgistature. An effective second chamber in a

system can usually help maintain a balance or

fTfajbnum in Federal state relations—but the Bundes-

being more of an administrative council than a

facal assembly, fails even to do this,

gov

CSt

German Federalism is far from fair to the Land

n n i e n t s

- The influence of the Federal Government

me spheres of authority specifically given to the

tes

is so large that, today, the strong tendency

rds uniformity in German Government leads the

(ev

t o a c c e

Federal administrative regulations

e n

where there is no legal obligation) in relation to

Ut'

a ( 3 m

s t r a t

i o n of their own Land laws. Such regu-

ns m u s t

have the approval of the Bundesrat (which

tl^j

powerful enough to oppose them). Considering

perhaps, more accurately unitary government)

Germans have come to the conclusion that admin-

atl

ve rationalisation of government has led the Ger-

states to derive their powers from the Federal

ernment and its laws just as much as the cities derive

lrS

r o m

Land Governments and their laws—

this is a corruption of the Federal concept of

ernment.

n e

Federal

Constitutional Court

is beyond the compass of this article to examine

structure of the Courts of West Germany, but in the

'text of the failure of the Federal principle in that

development towards uniformity of government

Republic, it is suggested that the Federal Constitutional

Court (Das Bundesverfassungsgericht) is the Federal

organ which can by a process of "judicial activism"

maintain the necessary equilibrium or partnership be-

tween the Federal Government and the member states

and thus restore the Federal principle. The multiple

functions of this Constitutional Court combined with

factors arising from its role within a code law system

make even a summary description of its jurisdiction

complex. A Federation requires a Supreme Court to

interpret its Constitution and the West German Federal

Constitutional Court is that necessary interpreter of

that Basic Law. By Article 93 of the Basic Law the

Federal Constitutional Court shall decide :

(1) All cases of differences of opinion or doubts on the

formal and material compatibility of Federal Law or

Land Law with this Basic Law or the compatibility of

Land Law with other Federal Law.

(2) Differences of opinion on the rights and duties of

the Federation and the Lands particularly in the execu-

tion of Federal Law by the Lands and the exercise of

Federal supervision.

(3) Other Public Law disputes between the Feder-

ation and the Lands, between different Lands or within

a Land unless recourse to another Court exists.

(4) All other cases provided for in the Basic Law.

Judicial Review

The most extensive power of the Constitutional Court

is its power related to judicial review of legislation. The

Court distinguishes between the exercise of "concrete"

and "abstract" review jurisdiction. "Concrete" review is

when the Court is asked to rule on Constitutional ques-

tions arising as aspects of an actual controversy being

adjudicated in lower Courts. "Abstract" judicial review

includes organs of the Federal and Land Governments

contesting the Constitutionality of legislation or the

Constitutional interpretation of other agencies even

without reference to a particular case.

The second distinct function of the Court arises out

of its Constitutional power to decide disputes concern-

ing the extent of the rights and duties of the Federal

and Land organs as well as parties functioning within

them. Whereas these cases might be described as "poli-

tical" if brought before the United States Supreme

Court, the Federal Constitutional Court is drawn by

the provisions of the Basic Law directly into the area

of partisan political conflict.

A third broad function of the Constitutional Court

arises from its powers to decide on petitions charging

infringements of the Constitutionally guaranteed basic

rights of individuals.

The Court has also the power to deprive groups and

individuals of normal constitutional rights if they engage

in innumerated kinds of anti-democratic and anti-

constitutional behaviour.

Is the Court Political?

There is admittedly a danger that such a Constitu-

tional Court may lay itself open to the charge that it is

invading the legislative arena and becoming "a third

branch of Government". But in West Germany it is the

Basic Law and the role which it assigns to the Federal

Constitutional Court rather than the Judges themselves

that accounts for that Court's necessary involvement in

the making of so many apparently political decisions.

The Court's decisions in the last decade may indeed

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