Keiko Diaz-Pezua
When the allies were writing the Basic Law for western Germany, they were likely influenced by the weaknesses of the Weimar Republic and the dictator that it allowed to emerge. The differences between the Weimar Republic Constitution and the Basic Law are clear, and so are the motives behind those changes. The Weimar Republic sought for a strong President that would keep the anti-Republic radicals from the Left and Right tranquil. But the consequence they did not envision was the possibility that a President could reach the position, regardless of whether or not they had an honest intention to do good by the German people. The president also has the power to dismiss the Reichstag (parliament) and rule under a “state of emergency”. This led to Hitler’s ability to emerge as a dictator, by dismissing the Reichstag and ruling under a state of emergency when the Reichstag house burned down. (1)
To prevent this in the writing of the Basic Law, limitations were placed on the powers of the President and a system of checks and balances.Germany has both a Federal Chancellor and a President. The President is elected by the federal convention which consists of the “members of the Bundestag and an equal number of members elected by the representative assemblies of the Länder according to the rules of proportional representation.”(3) The President serves in a more ceremonial capacity and although the position does hold several powers, they are limited and not exclusive.(2) Looking at Section 5, Articles 54 to 61, the powers duties of the President include meeting with with world leaders and facilitating treaties on behalf of the Federation; appointing and dismissing federal judges and federal civil servants as permitted by law; and the ability to delegate these powers among other. The President has the responsibility of signing bills into law, only then does it come into affect; also has the power to veto but only with the belief that it violates the Basic Law(3) The Bundestag or the Bundesrat also can check the powers and actions of the president with the threat of impeachment if the President does not abide by the Basic Law or any other federal law. This shows that the executive is not independent of the legislature for the support of the legislator is needed for the actions of the President and also of the Federal Chancellor, which acts as a Prime Minister in this parliamentary system.
The Federal Chancellor is the most powerful official and acts as head of state and is elected by the Bundestag “on the proposal of the Federal President.” (3) He or she controls the federal government and is responsible for appointing the Federal Ministers. As presented in articles 64 to 69, the Chancellor has greater powers than the President. The Chancellor is responsible for general policy and decides on “the differences of opinion between the Federal Ministers and is the head of the Federal Government while respecting the Basic Law and the approval of the President. Also in command of the Armed Forces, amongst others. Although the Federal Chancellor has more powers, they are still checked and limited by the Bundestag which has the ability to replace the Chancellor in the event that it expresses “lack of confidence” in the person serving. Due to Germany’s current political parties and the sizes of each means that the powers of the chancellor are even more limited. Because coalitions between parties are formed to create a majority, the Chancellor must please no one but two parties in order to retain the support of the majority.
- http://hsc.csu.edu.au/modern_history/national_studies/germany/2431/page76.htm
- http://law.wisc.libguides.com/germany
- German Basic Law; http://www.fordham.edu/halsall/mod/CONST-DE.asp
The executive in Germany has both a Head of State (President) and a Head of Government (Prime Minister), as stated in the leader post, however, the executive branch is a weak one. Expanding on the leader post’s idea that because Germany has a coalition party system the PM must answer to two parties in order to maintain the majority, it is also difficult for the Prime Minister to accomplish singular party goals, especially when coalitions are formed between parties that are ideological opposites.
ReplyDeleteThis coalition struggle is due to the fact that there are 6 effective parties in German politics (as of the 2013 election), so it is difficult for one party to have a simple majority over the Bundestag (1). In order to achieve a majority, parties must create a coalition. The Prime Minister is then selected as the leader of the majority coalition. In 2013, Merkel was forced to form a coalition with a party (the Social Democratic Party-SDP) that has views that are further to the left from the views of the traditional coalition of the Christian Democrats (CDU) and Christian Social Union (CSU) (2). Because of this “Grand Coalition,” Merkel is forced to listen to the views of the left, rather than unilaterally decide based on the right-wing views of her traditional coalition (which itself is formed between two parties whose only distinction is that the CSU operates solely in Bavaria). Because the Prime Minister must pay attention to the party politics of the Bundestag, the executive branch is weaker than the legislative branch and must answer to the demands of coalitions. The Prime Minister has fewer controls over the Bundestag (one being to demand that the government be dissolved), whereas the Bundestag can control the direction of policy making.
(1) "Germany.” Manifesto Project Database. https://manifestoproject.wzb.eu/elections/729
(2) “German SDP backs grand coalition government with Merkel.” EurActiv. http://www.euractiv.com/eu-elections-2014/german-spd-backs-grand-coalition-news-532365
Taylor Gunderson
ReplyDeleteAs has been mentioned, in Germany the executive branch is relatively weak in comparison to the legislative branch. A great deal of this is due to the abuses suffered under Hitler and his executive branch. There is evidence for this in Section X of the Basic Law which discusses the State of Defense. In this section of the constitution, it is clear that the writers of the constitution did not want to experience a repeat of the past in which the executive branch abused powers under cover of a “state of defense.” The Basic Law puts almost all powers in the legislative branch even during times of defense: “It does not even in such extreme cases envisage the total or partial abdication of Parliament of its law-making powers in favor of the executive” (1). It is up to the Bundestag with the consent of the Bundesrat to declare that there is a state of defense in the country (2). When the Bundestag cannot assemble fast enough, the Basic Law still provides for an alternative option of a Joint Committee to decide whether a state of defense should be declared.
Most interesting to me however, is that only upon this decision does the Federal Chancellor gain the power of command over the Armed Forces according to Article 115b (2). This is unlike the U.S. President who is always the Commander in Chief. In Germany, the position of Commander in Chief is held by the Minister of Defence except during a state of defense. However, even if the Joint Committee does declare a state of defense and the Federal Chancellor becomes Commander in Chief, his powers are still very limited because all legislation needs the consent of the Bundestag and Bundesrat (2). Furthermore, the legislative bodies must all be informed “without delay” of actions taken by the Federal Chancellor to use the Federal Border Guard. Overall, there are a great number of checks enforced on the Federal Chancellor and executive branch when in a state of defense. It would be very difficult for the executive branch to unilaterally make decisions without regard to the legislative branch. This is very intentional as the drafters of the constitution wanted to prevent exactly this.
(1) Grote, Rainer. "The Federal Republic of Germany." Max Planck Institute for Comparative Law and Public International Law
(2) German Basic Law; http://www.constitution.org/cons/germany.txt
In the German Basic law, the President is afforded an initially surprising amount of power, but it is all conditional (1). He has the ability to nominate or dismiss a federal Chancellor (article 63), along with the Chancellor’s ministers (article 64), and appoint “federal judges, federal civil servants, and commissioned and non-commissioned officers of the Armed Forces” (article 60), among other powers. However, these powers are all conditional. While the President may propose a federal chancellor, the Bundestag must approve this candidate by a majority. If the bundestag does not approve the President’s candidate, the president is removed entirely from the selection process. And, while the president can nominate ministers of Chancellor’s cabinet, this is only under the proposal of the Chancellor herself. So, while he may be involved in many processes, he has little power in them. Additionally, the president has even less power by the tradition of the office. In fact, it is considered inappropriate (but not illegal) for a President to take sides on issues of public policy (2).
ReplyDeleteWhat interests me about this is the reasoning for having a president involved in any legislative functions or appointments. If the writers of the Basic Law really wanted to make the President a figurehead, it would seem more logical to keep him out of domestic governmental affairs entirely. My conclusion, personally, is that the writers wanted to give the president the appearance of having some power, in order to make his representation of the German state less transparently symbolic. Whatever the reason, the split executive branch seemed like the perfect solution to the problem exposed by Hitler’s reign. One executive can be a charismatic “face” of Germany to promote unity and a stable international image, while the other can act in a more partisan and policy-oriented role.
Sources:
(1) German Basic Law
(2) Constitutional Basis, http://www.bundespraesident.de/EN/Role-and-Functions/ConstitutionalBasis/ConstitutionalBasis-node.html