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ANNEX B

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AMENDMENTS TO THE BASIC LAW PROPOSED BY THE THREE MILITARY GOVERNORS

TEXT OF STATEMENT MADE ON BEHALF OF THE MILITARY GOVERNORS TO THE PARLIAMENTARY COUNCIL

My colleagues and I have asked you to come here to-day in order that we might comment to you upon several provisions of your proposed Basic Law as it was passed by the Main Committee of the Parliamentary Council. We have studied this document in the light of the aide-mémoire which our Liaison Officers delivered to you on 22nd November, 1948.

2. There are a number of provisions in the Basic Law which deviate from detailed principles set forth in that aide-mémoire. However, in viewing the document as a whole we are prepared to disregard some of these deviations, but at the same time feel it necessary again to call your urgent attention to other provisions, which, in our opinion, depart from those principles to an unfortunate degree.

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3. In the first place, we would like to point out that the powers of the Federal Government as now set forth in Article 36 are not defined with sufficient clarity adequately to safeguard the position of the States in a federal system: To correct this we suggest you delete present Articles 36 and 36A and substitute therefore a new Article 36 based very largely upon your own language and which might read substantially as follows:-

ARTICLE 36

(1) The Länder shall retain the right to legislate in the fields hereafter enumerated except where it is clearly impossible for a single Land to enact legislation or where the legislation if enacted would be detrimental to the rights or interests of other Länder. In such cases, and provided that the interests of the several Länder are clearly, directly and integrally affected, the federation shall have the right to enact such legislation as may be necessary or appropriate. (Here follow the items of Article 36 except that Cinema and Press are omitted from Item 3, and the words "in its entirety are omitted from Item 7. Item 1 and Items 2, 3, and 4 of Article 36A are added to the list of Items in this Article.

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4. In the second place, my colleagues and I would like you to understand that we are ultimately responsible for security, and further that the powers contained in Article 118c may not be exercised until specifically approved by the Occupation Authorities. This reservation upon the exercise of these police powers will be repeated at the time when you are formally advised of our action with regard to the constitution as a whole.

5. In the third place we have noted with concern the extent to which the finance powers depart from the criteria agreed upon in London and transmitted to you in paragraph (D) of the aide-mémoire. We have already had occasion to advise you that in our opinion substantially the same provisions would result in" the Länder being left without adequate independent sources of revenue for the conduct of their affairs." We would suggest, therefore, several changes in Articles 122A, 122в and 123 which, we believe, would enable those, Articles more nearly to satisfy the principles of financial organisation which we believe to be of primary importance in a federal system. Specifically we suggest that those Articles be reworded to read substantially as follows:-

'ARTICLE 122A

The Federation shall have exclusive legislation in customs and financial monopolies (federal taxes) and priority legislation on the following taxes (concurrent taxes):

(1) Excise taxes and taxes on transactions, with the exception of taxes

(Land taxes) with localised application, in particular the taxes.

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Pagrend estate acquisition, incremental value and oppfire rigtections

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gifts (or donations).

(2) The taxes on income, property, inheritances, with the exception Page 9739 Realsteuern (taxes on real estate and on

of the fixing of tax rates.

ARTICLE 122B

The Federation shall exercise priority legislation in the field of concurrent taxes only to the extent that it may require the whole or any portion of the proceeds of any concurrent tax or taxes to cover its responsibilities. If the Federation takes over a portion of a concurrent tax the remaining portion shall be retained by the Länder as and where collected.

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ARTICLE 123 ·

The federal taxes shall be administered by Federal Finance authorities. The Federal Government may if it so desires administer in their entirety through federal financial authorities those taxes which it imposes for federal purposes except that it shall administer the tax on income only to the extent that such a tax has been appropriated for federal purposes. The structure of the Federal Finance authorities and the Finance Courts and the procedure to be applied by them shall be regulated by Federal Law. The heads of the Finance and Customs authorities in the Länder shall be appointed by agree- ment with the Governments of the Länder involved.

(2) The land taxes and concurrent taxes other than those referred to in Article 123 (1) shall be administered by Land Finance authorities.

(3) The raising of the Realsteuern shall be regulated by Land legislation.'

To be consistent with what has been said above we wish to call your attention to the need for deleting Article 138-C (4) and in substitution thereof, for a detailed specification of land taxes.

6. In the fourth place, we wish to draw your attention to the fact that Article 129-1 (2) is not entirely clear as to the extent to which the independence of the judiciary is insured. We urge you give it your thoughtful attention particularly as to the safeguards provided in connection with the dismissal of judges.

7. In the fifth place, we consider that the possibilities for the Federation to establish its own administrative agencies (Articles 112-2 and 116) are wide. We would therefore like to to point out that the Military Governors will have to give careful consideration at the time when such agencies are established to ensure that they do not represent too great a centralisation of power.

8. In the fifth place we should like to clarify our position with regard to the question of the Federal Civil Service. If principles with regard to the civil service as set out in Articles 27 (b) and 62 are to be embodied in the constitution they must be modified to conform to the principles enumerated in paragraphs (g) and (h) in our aide-mémoire of 22nd November, 1948.

9. A sixth matter which has concerned us is the question of the reorganisation of the territories of the Länder as set out in Articles 25 and 26. In this connec- tion we wish to draw your attention to the statements which we made to the Ministers President on 20th July, the pertinent portions of which were as follows

"We wish you to appreciate that the question of land boundaries is one of great importance to us. We feel that the present is an appropriate time to deal with it, and we are ready to do so. However, it would be much more difficult for us to deal with it later on, it has, for example, reactions with regard to our own zonal boundaries. We do not feel that we should be willing to deal with the subject again at a later date prior to the conclusion of a Peace Treaty. Moreover, the fixing of land boundaries is important in relation to the constitution itself. We believe that we should recommend to our Governments that the boundaries which we recognised during the drafting of this constitution should remain unchanged, at least until a Peace. Treaty is signed.

Our position to-day is the same as it was at that time, and we feel we must now adrise you that unless we unanimously agree to change this position it must remain so until the Peace Treaty. In this case also we will remind you of this decision at the time formal action is taken with regard to the constitution as a whole.

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(10 Finally, my colleagues and I would like you to know that we understand the solicitude which the Parliamentary Council has shown for Berim. However, in view of the existing situation, that portion of Article 22 which refers to Berlin must be suspended, nevertheless, there will be no objection to the responsible authorities in Berlin designating a small number of representatives to attend the meetings of the Parliament.

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ANNEX C

COMMENTARY ON THE BASIC LAW (PROVISIONAL

CONSTITUTION)

The Basic Law as adopted by the Main Committee of the Parliamentary Council after three readings is a comprehensive document divided into thirteen sections. As a blue-print for a governmental organisation it appears to fufil the purpose for which it is designed. It draws its inspiration from previous German Constitutions and aims at avoiding difficulties which previous German govern- mental organisations have had to face. This is all the more desirable as it will have to be operated by Germans who will understand best their own traditions and habits of thought.

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2. There is no doubt that the men who met at Bonn for the past five months were above the average of the German politician in intelligence, integrity and firmness of purpose. They worked very hard and for the most part in harmony. They learned to know each other's point of view and, in time, to respect their differences. At the last they showed a spirit of mutual tolerance which permitted compromise to be reached on matters on which previous divergencies were wide. The result has been a workable instrument in many ways superior to the Consti- tuition elaborated at Weimar in 1919.

3: Before examining the Basic Law in the light of the task before the Parliamentary Council and the principles laid down in the aide-mémoire, it would be well to recall how these principles were found. At first the three Occupying Powers sought to establish a fairly detailed list of requirements which the German Constitution would have to fulfil. Representatives of each Power looked to their own experiences of Federations and tried to lay down criteria based upon this experience and upon their Western European conception of democratic Federal Government. Agreement on this basis proved impossible. It was there- fore decided that a general formula should be found and supplemented by what- ever detailed requirements the Occupying Powers could all accept. On all other points it was agreed that the proposals of the Germans would be accepted provided they fell within the general outline of the task given to them. It was realised in London, when the principles were laid down, that insistence on every one of them, as interpreted by each Occupying Power, would be undesirable. For this reason it was provided that the future Constitution should be examined as a whole to see if, in a substantial measure, the requirements of the Occupying Powers had been met. This was all the more necessary as the principles were laid down without consideration of the German tradition or habits of thought. The task before the Military Governors therefore is not only to examine in what respects the Basic Law deviates from the principles of the Letter of Advice, but also to decide whether these deviations are in themselves so important, given the balance of the document as a whole, as to cause them to disapprove the Basic Law or require such amendments as would be equivalent in their effect to disapproval.

4. For the sake of ease in analysis each of the major principles and specific requirements of the aide-mémoire of 22nd November, 1948, will be examined in turn. Only thus can an examination of the blue-print be focused on those details which the Six Governments had considered important. It must be borne in mind, however, that this dissection risks presenting the question in isolation and over- looking the interplay of compensating forces.

Democratic Constitution

5. The first federal principle was that the constitution must be democratic. Article 21 1yago98 the 488nciple that State authority emanate agan the people

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and shall be exercised indirectly by freely elected representatives of the people. It also lays down that the Government shall be responsible to the people. Further, Article 79mposes the same requirement of responsible government controlled by representative assemblies on the lower levels of administration.

6. The application of these principles reveals, however, a curious distrust of the people and the political parties which is the natural product of recent German experience. The main legislative body, the Volkstag, is directly elected, but all other organisms participating in legislation or administration are indirectly elected. The members of the Bundesrat are appointed by the Land Governments who are responsible to the Landtage the members of which are directly elected. The Federal President is elected by a college composed of directly elected representatives. The Federal Chancellor is chosen by the members of the Volkstag, but he chooses freely his own Ministerial colleagues. Daily supervision of the Government is entrusted to the Bundesrat. Initiative and referendum, which figured prominently in the Weimar Constitution, have been deliberately excluded. Political parties are free to organise in conformity with political principles but may be declared unconstitutional and banned if their aims or the behaviour of their members jeopardise the fundamental democratic order or the existence of the Federation (Article 21A).

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7. This distrust of the people may be well founded in German experience and justified by recent events in Soviet satellite "democracies." To British eyes, however, the safeguards present, among others, the danger that the Government might fall into the hands of an oligarchy of leading civil servants and that popular control might be so remote as to become ineffective. The requirement of an absolute majority vote of the Volkstag for the appointment and dismissal of the Federal Chancellor and the lack of direct control by the Volkstag over the other Ministers, together with the provision for legislating with only the Bundesrat in a state of legislative emergency (Article 111z) recall too vividly the Bismarckian system where the Federal Chancellor and the State Secretaries were not responsible to the Reichstag. The intention of the Parliamentary Council, however, is not to avoid the popular control of the Government but rather to ensure a firm stable Government which will not be at the mercy of the tenuous compromises of chance party alignments. The main structure of the Basic Law is democratic in character and ensures the eventual control of the Government through the ballot box. It can therefore be concluded that the requirements of the first general principle laid down in the London decisions have been met.

Constitution of Federal Type

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8. The second major principle is that the constitution must establish for the participating Länder a governmental structure of federal type. To determine whether the Basic Law fulfils this requirement, it is proposed to examine it on those points which, according to a well-known English authority on public administration, differentiate between a Federation and a unitary State.

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(a) Distribution of Legislative Powers. In a Federation the legislative powers should be distributed so as to give to the Federation and the Länder clearly defined spheres of legislative competence. Article 35 enumerated the subject matters on which the Federation shall have exclusive legislative competence. Article 36 enumerates those matters on which the Federation shall have priority in legislation only in order to regulate what must be uniformly regulated." The Länder can legislate on these matters in so far as the Federation does not do so. In case of doubt on the validity of competing legislation, Federal law supersedes Land law (Article 31). There is also another provision that on a few matters the Federation may issue general provisions (Article 36A). All matters not mentioned in these Articles are left to the exclusive competence of the Länder.

(b) Distribution of administrative powers. In a Federation, both the central agency and the component parts must have their own sphere of admin- istrative competence. The Basic Law provides that the Federation and the Länder shall each have their own Governments and administrations. It also lays down the

Page ustration (Articles 116, 116A, 117, 17ge of exclusive Federal

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Land administration executes Federal laws as well as its own Land lawsgatado11/1) but under regulations clearlygaid down 4n the Basic Law so as to prevent the Federation from extending its control to purely Land affairs (Articles 112/2, 113). Although a true Federa- tion would, in theory, require completely separate administrations, the system of the Basic Law dates back to the days of the German Empire and is well understood in Germany as a necessary safeguard of the interests of the Länder. (c) Representation of the States in the Federal Parliament....... A truly federal system should provide for adequate consideration of the interests of the Länder in federal legislation. This is usually achieved by a Second Chamber composed in such a manner as to ensure representation of the Land interests. A popularly elected Senate tends to duplicate the political composition of the Lower House and only the relative weight given to the area of representation as opposed to the number of inhabitants therein differentiates it from the Lower House. The Basic Law provides for a Bundesrat composed of representatives of the Land Governments acting under instructions and liable to recall (Article 66). The size of the Land only slightly modifies the number of votes allotted to each Land. The Bundesrat has only a power of veto which can be overruled by the Lower House (Article 104). As an exception, legislation on certain important matters, such as taxa- tion, organisation of federal administrations, &c., requires the agree ment of both Houses (Article 105). The Bundesrat also participates in the conduct of federal affairs (Article 73).

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(d) Special Revenue Arrangements. To maintain their independence in their own spheres, the Federation and the Länder require independent sources of revenue adequate to meet their ordinary expenditures. While the Basic Law provides that by the end of 1955 the Federation and the Länder shall each have their own sources of revenue, it maintains for the time being a dependency of the Länder on the federal taxes. It also gives the Federation the task of financial equalisation among the Länder in such a manner as to give to the Federation a powerful instrument of pressure. The power of the Federation is kept in check however by requirements for agreement of the Bundesrat to these measures and to the allocation of common taxes. It is doubtful whether, in fact, the influence of the Federation over the finances of the Länder cannot be more effectively exercised through the control of credit than through the use of the right to allocate revenues. (e) Special Judicial Arrangements. In a Federation there should be provision for independent judicial decision on differences between the Federation and the States as well as between the States themselves. The Basic Law provides for a Federal Constitutional Court with the necessary powers (Article 128-1).

(f) Stipulation relating to the form of State Government. General provisions should be made in a Federal Constitution to ensure that Länder are free to form their Governments provided they are not incompatible with the principles on which other Land Governments or the Federal Government are formed. As already seen, Article 27 imposed on the Länder the same requirement for responsible government with elected assemblies. Otherwise the Länder are free to devise their own organisation.

(g) Specially difficult amending process. To ensure the maintenance of the governmental structure of a Federation constitutional amendments must be more difficult to pass than ordinary laws. The Basic Law provides as did the Weimar Constitution that constitutional amend- ment shall require the approval of two-thirds of the members of the Volkstag and two-thirds of the votes of the Bundesrat. Laws affecting the organisation of the Federation into Länder and the vote of the Länder in legislation and administration require a majority of four- fifths of the votes in the Bundesrat (Article 106).

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9. From the foregoing analysis the Basic Law seems on the whole to conform fully to the requirements of Federal Constitution. It may Deaguely confl488d, therefore, that the requirements of the second general principle laid down in the London decisions have been met.

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Protection of Rights of Participating States

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Page 101 The third major principle is that the Constitution must protect the rights of the participating States. The powers of the Second Chamber have already been outlined. Further comment would be redundant. It can safely be concluded that the requirements of the third major principle laid down in the London decisions have been met.

Provision of Adequate Central Authority

11. The fourth major principle is that the Constitution must provide for adequate central authority. The basic Law gives wide power of legislation to the Federation. Most important matters in the financial, economic, social and legal fields fall within federal legislative competence. There is, therefore, no doubt that the provisions of legislative power for the central authority are adequate.

12. In the executive field, the position is not so clearly defined. The Federation has no armed forces at its disposal. Its only physical means of compulsion lie in the possibility of using the Land police forces in order to avert an imminent danger to the existence of the free and democratic basic order of the Federation or a Land" (Article 118c). Its own direct agencies are strictly limited to the Foreign Service, the federal finance administration, federal rail- ways, federal postal services and the administration of federal waterways and shipping (Article 116). Otherwise, the Federation is dependent on the Land administrations (Article 112/1) subject to the right to issue general administrative provisions and to send inspectors to the Länder to supervise the execution of federal laws. Disputes between the Federation and the Länder on these matters are to be decided by the Bundesrat (Article 112/2). The Federation may also regulate the uniform training of officials and employees; it participates in the appointment of the heads of the authorities at the middle level. The Land authorities are subordinate to the directives of the competent highest federal authorities (Article 113). There are also important means of pressure through the financial administration to which allusion has already been made.

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13. These various provisions in practice will give considerable power to important will

the central authorities. The provisions of Article 113 are siderable power to

no doubt give to the Federal Administration an influence over officials throughout Germany. Participation in appointments of Landrate will carry that influence down to local administration. In any other country it might be difficult to see such a system working smoothly. It has, however, been the practice in Germany since the days of the North German Confederation. It worked well then and under Bismarck because there was no great difference between the German Länder on social policy; they were all police States. Difficulties only arise when the difference in political aims between the centre and one or more of the Länder is unbridgeable. Such cases occurred in Thuringia in 1922 and Bavaria in 1923. It is conceivable that a serious conflict might develop in the future between an S.P.D. Federal Government and a C.S.U. Bavarian Government over such matters as socialisation. This kind of conflict, leading to the very brink of secession cannot be avoided by mechanical means. The strong central executive authority in 1923 with a small army at its disposal was no more able to impose its will on Bavaria than will the future Federation. Lack of direct means of pressure might, on the other hand, induce a greater spirit of compromise and prevent the situation being carried to an impasse. In the light of German tradition, therefore, it can be concluded that the provisions for executive powers for the central authority are adequate.

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14. The judicial field is not one where conflicts of power between the Länder and the Federation should operate. Nevertheless, there are matters in which uniformity of legal decisions is essential. The Basic Law set up Federal courts to deal with these matters and to preserve the unity of German law. It is safe to conclude, therefore, that the central authority will be adequate in the legisla- tive, executive and judicial fields, and that the requirements of the fourth major principle laid down in the London decisions have been met.

Fagranters of 488ividual Rights and Freedom Page 101 of 488

15. The fifth and last major principle is that the Constitution must guaran- tee individual rights and freedom. The Basic Law contains a section on Basic

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its which has been carefully drafted to include the most modern conceptions e rights of man. Whengompared with the Universal Deplaration of Human hts adopted by the General Assembly of the United Nations in the first half he third session in Paris only the right to emigrate and the right to be pre- ed innocent until found guilty (Article 11 of the Declaration) are not covered. the other hand, the Basic Law safeguards the other rights based upon recent Serience of democracies. It provides expressly that no one may be compelled perform war service against his conscience (Article 5). It also provides that voter will be deprived of his right to be represented by a candidate of his n choice by the creation of single lists of candidates (Einheitsliste) (Article 18). also provides that those who abuse their freedoms to undermine that of others d break down democratic institutions shall forfeit their rights. It can be ncluded, therefore, that the requirements of the fifth major principle laid down

the London decisions have been met.

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16. It only remains to examine whether in fulfilling their task the Parlia- entary Council has done it in a manner which accords with the specific require- ents laid down in London and communicated, with two additions, in the ide-mémoire of 22nd November, 1948. It should be recalled at the outset that he text of the aide-mémoire stated that the Military Governors "intend to con- der the provisions of the Basic Law (Provisional Constitution) in their whole ontext."

Nevertheless, they believe that the Basic Law (Provisional Constitu- on) should to the maximum extent possible provide: and the requirements ollow. The very use of the phrase "the maximum extent possible," which is in he London Letter of Advice to the Military Governors implies that the require- nents which follow are not absolute but capable of interpretation and adjustment nd the members of the Parliamentary Council can rightly claim that in drafting The Basic Law they met " to the maximum extent possible the detailed provisions

f the aide-mémoire.

Detailed Requirements

17. (a) Bicameral legislative system. As emerges clearly from the fore- going analysis the Basic Law meets the requirement for a bicameral legislative ystem in which the Bundesrat represents the individual Länder and has sufficient power to safeguard the interests of the States.

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(b) Limitations of the powers of the executive. The powers of the Federal Government are definitely prescribed in the Basic Law. The use of emergency powers is also clearly defined (Article 111). "In order to avert an imminent langer to public safety and order," the Federal Government may issue emergency decrees having the force of law. This power is seriously limited by the following operating together:-

(i) One of the legislative bodies must be prevented from fulfilling its func- tions by force majeure (a condition capable of legal definition); (ii) the Presidents of the Volkstag and the Bundesrat must approve; (iii) the decrees must refer to matters within federal competence; (iv) the decrees must be confirmed by the Volkstag and Bundesrat within four weeks unless the original conditions of force majeure continue to operate when the decrees may be extended for four weeks each time; (v) the decrees may affect only the Basic Rights concerning freedom of the press, assembly and association and the secrecy of telecommunications; and

(vi) no elections can take place during this period if these Basic Rights are

affected.

Moreover the decrees become invalid if either of the legislative bodies demand at or if both do not confirm them in four weeks. The possibility is also open for any Land to challenge the legality of the action before the Federal Constitu- tional Court. It can be said that the requirement has been met.

(c) Distribution of powers between the Federation and the Länder. The enumeration of the powers of the Federation is contained mainly in Articles 35, 36 and 36A. All powers not expressly given to the Federation belong to the Land. The only requirement of the aide-mémoire is that certain powers should be reserved to the Länder and therefore not wasted in the Federation. Presumably the Parliamentary Council was free to allocate the powers as they thought best