Which country has the most powerful constitution

Basic Law - Constitution / Constitutional Reform

1. From the partial constitution to the all-German constitution

According to the preamble of the → Basic Law (GG) "the German people have given themselves this Basic Law by virtue of their constituent power". In view of the history of the creation of this constitution, it becomes clear that the state-theoretical assignment of the "pouvoir constituant" to the people of the state can hardly accurately reflect the reality of the creation of a constitution. The three western occupying powers, which, according to the Berlin Declaration of June 5, 1945 jointly with the Soviet Union exercised the "supreme power" over the occupied German Reich, authorized the minister-presidents of the in states formed in the three occupation areas to convene a constituent assembly "not later than September 1st, 1948". The military governors determined their composition through representatives of the federal states and determined that this assembly would draft a "democratic constitution that would establish a federal-type state structure for the participating states, which would be best suited to the eventual restoration of the broken German unity, and which protects the rights of participating states, provides adequate central authority and guarantees individual rights and freedoms ". In accordance with this mandate from the occupying powers, which went down in history as the "Parliamentary Council", drafted the text of the Basic Law from September 1, 1948 to May 8, 1949, which has since been amended by almost 60 constitutional amendments or amendments. The name "Basic Law" denoted the provisional character of this constitution, which its preamble and Article 146 explicitly stated. When the dissolution of the socialist community of states and the associated changes in the → GDR in 1989 enabled the unification of the two German states that came into being in 1949 and the reunification of the German people in the following year, they did not take the risk that in the event of reunification in The prospect of creating a new constitution in a time-consuming and labor-intensive process. The route chosen, which is certainly easier, is the reconstitution of the five former states in the GDR and their accession to the FRG in accordance with Article 23 a. f. This procedure of state unification, referred to by some political exponents as the "royal road", has given D a constitution whose name will continue to remind of its originally provisional character and which in the amended preamble maintains the fiction, the "German people "this Basic Law was given" by virtue of its constituent power ". After all, the revised Art. 146 GG contains the possibility of a new "constitution", which "has been passed by the German people in free decision". Beyond the finding that the state people as sovereign, according to the idea, have the constitutional power, it but not in a real act of constitution-making - the German people could not even approach this idea with a promised referendum of citizens (who are eligible to vote according to voting age) for the event of reunification - the GG has nevertheless as a whole (even in the more than two decades since reunification) proved to be a stable constitution. This is based less on the many changes and additions to the Basic Law and more on the factual and value-based jurisprudence of the → Federal Constitutional Court, which, where necessary, also takes into account the real-life constitutional change. The assessment that can be recorded everywhere is certainly correct that the fundamental decisions of the constitution are accepted by the vast majority of the German people, regardless of the fact that the original version of the GG, which was passed by country representatives, could only come into force after the approval of the three western military governors.

2. The basic decisions of the constitution

The GG expressly makes it clear what the fundamental decisions of this constitution are, the amendment of which would affect the essence of the constitution and which are therefore consequently declared unalterable by constitutional regulation (Article 79, Paragraph 3). These are the division of the federal government into states (→ federalism), the fundamental participation of the states in legislation and the principles laid down in Articles 1 and 20. This sequence to be recorded in the GG represents neither a value gradient nor a logic of norms. If the BVerfG correctly assumes that man has his own independent value in the order of creation and that freedom and equality are permanent basic values ​​of the legal community, then everything else is found Determining key decision of the constitution in the human dignity declared inviolable by its first article, but also in the freedom of the person and the principle of equality, insofar as their area of ​​protection also ensures inviolable human dignity. The basic decision according to Article 1 of the Basic Law does not guarantee the protection of all of the following basic rights against changes, but the basic rights are protected against eradication that is incompatible with human dignity.

The principles laid down in Art. 20 also belong to the so-called "constitutionally stable minimum". While Art. 1 contains the individual value-related basic value decision, Art. 20 makes the basic values ​​of the state legal community resistant to change. First of all, it guarantees popular sovereignty, then the separation of powers and secures state action through organs. The federal state is guaranteed and thus experiences multiple safeguards in the Basic Law. The federal principle is safeguarded both by referring to the prohibition of change (Art. 79 Para. 3) to the norm of the basic decisions (Art. 20) and additionally by expressly mentioning it in the prohibition of change and is also substantiated by the safeguarding of fundamental participation contained in the prohibition of change of the countries in → legislation. This and the guaranteed state quality of the federal states (Art. 30) form the basis of the federalism shaped by the GG, the appropriateness and efficiency of which is constantly being scrutinized. The rule of law principle with its factual and legal-logical derivations, namely the assignment of state functions to organs reflecting the separation of powers, the precedence and reservation of the law, the principle of proportionality, the principle of certainty, the principle of legal certainty, the protection of legitimate expectations and the prohibition of ( real) retroactive effect. Finally, the fundamental decisions of the constitution include the principle of democracy and the welfare state principle. The linking of the assignment of state authority ("all state authority emanates from the people" / popular sovereignty; Art. 20 para. 2 sentence 1) with its exercise by organs (Art. 20 para. 2 sentence 2) is to be understood as the people of the state as the subject ("owner") of state authority are the first link in the chain of legitimation of all state action, while state action is carried out by such legitimized organs. In its fundamental judgment of June 30, 2009 on the Lisbon TEU, the BVerfG described the fundamental decisions that cannot be changed as "the inviolable core content of the constitutional identity of the GG". In addition to the express prohibition of changes in connection with the incorporation of the emergency constitution, the fact that the constitution recognizes a right of resistance (Art. 20, Paragraph 4) has been taken into account to ensure that these basic decisions are resistant to change. According to this, all Germans have the right to resist anyone who undertakes to remove the order determined by the basic decisions, in the event that another remedy is not possible.

3. The federal-state relationship

The construction of the federal-state relationship by the GG reflects the mandate of the military governors of the three western occupation powers from 1948 to allow a West German partial constitution "not by the reconstitution of a centralized Reich", but by creating a federal state with the protection of state statehood. It may have played a role here that even a Unitarian federal state based on the Weimar model was viewed as inadequate to limit the power of a future German state to ensure lasting peace. The authors of the constitutional text found a balanced construction, which in its basic structure represents a successful balance between state statehood and the requirements of the state as a whole. According to this, the exercise of state powers and the fulfillment of state tasks is initially a matter for the states due to their state quality, unless the GG makes or permits any other regulation (Art. 30). However, the GG provides the countries with a basic structure according to which their constitutional order is based on the principles of the republican, democratic and social constitutional state, i.e. H. must comply with the basic decisions of the constitution (Art. 28 Paragraph 1 Sentence 1). The primary consideration of the states is consistently shown in the functional areas of the three state powers: It is the states that have the right to legislate, insofar as the GG does not give the federal government legislative powers (Article 70, Paragraph 1). It is the states that implement the federal laws as their own matter, unless the GG stipulates or permits otherwise (Art. 83). The judiciary, emphasizing its independence, is entrusted to the judges; their exercise at organ level is entrusted to the Federal Constitutional Court, the federal courts provided for in the Basic Law and the → courts of the federal states. Behind this consistent construction of the first-rate statehood of the federal states, however, there is an extensive potential of federal responsibilities, so that D has already been qualified as a "unitarian" federal state in isolated cases. However, the relationship between the Federation and the Länder is the area of ​​regulation of the constitution that is most exposed to controversial discussions and at the same time remains the primary object of reform efforts (see no. 5 below).

Source: Andersen, Uwe / Wichard Woyke (ed.): Concise dictionary of the political system of the Federal Republic of Germany. 7th, updated Aufl. Heidelberg: Springer VS 2013. Author of the article: Knut Ipsen