The Gazette 1974

íu Cnt . anc3 l h e member states in West Germany is not e tie between partners in power but a relationship s °mewhat analogous to that of "master and servant". Nn 0 co m p ar i S on between U .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 e deral Government and the States—but an exam- ^ation of the German situation proves this statement ,. r from fact. The American type principle of Feder- ^ism is only, in theory, operative in West Germany— ^ e actual working of government in Germany shows th 0vv far, in this matter, theory is from practice. Unlike a ^ m ° d e l (where both National Government l e • States maintain not only their own areas of legislation, but also independent and frequently over- is 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 e basic principle on which this form of government ^""-partnership in power, in W s e r i o u s l y undermines the working of Federalism y*est Germany today is the position of the Bundesrat ^ be second chamber of the National Legislature— Sl gned to guard the interests of the Lands against Cr oachment on the part of Bonn. Though West" Ger- fo ^ anc ^ United States are said to operate the same 0r government, the Bundesrat can in no manner Measure be compared with the United States Senate. Th •JJ* Bundesrat c , e Bundesrat hardly qualifies for the term "second , tnber". It is composed, not of directly-elected persons, (j members of the Land Cabinets : thus it is a i n ° u N c il with a watching brief rather than a full partner Pen kgistature. An effective second chamber in a e system can usually help maintain a balance or fTfajbnum in Federal state relations—but the Bundes- p 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 in C L n n i e n t s - The influence of the Federal Government me spheres of authority specifically given to the t 0 ^ tes is so large that, today, the strong tendency » a rds uniformity in German Government leads the (ev n t o a c c e P t Federal administrative regulations e n where there is no legal obligation) in relation to Ut' a ( 3 m i n i s t r a t i o n of their own Land laws. Such regu- is l0 i ns m u s t have the approval of the Bundesrat (which tl^j powerful enough to oppose them). Considering j st ^ e Germans have come to the conclusion that admin- atl ve rationalisation of government has led the Ger- Q n states to derive their powers from the Federal th 0v ernment and its laws just as much as the cities derive a nH lrS ^ r o m Land Governments and their laws— p d this is a corruption of the Federal concept of ° v ernment. Th n e Federal Constitutional Court 1 is beyond the compass of this article to examine e 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 So perhaps, more accurately unitary 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- 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 133 constitutional behaviour. Is the Court Political?