The Gazette 1974

LEGAL EUROPE

West Germany: The Failure of Federalism

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

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,