What is admirable about Germany’s Basic Law

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Remarks delivered by the Ambassador Dion of Canada to Germany at the Forum of Federations event, marking 70 years of Germany’s Constitution

November 4, 2019
18:30

Stéphane Dion, Ambassador of Canada to Germany and Special Envoy to the European Union and Europe

This distinguished assembly of seasoned experts on political institutions know it very well, but it is likely that few Germans and Canadians are aware: Canada, in its modern form, is an older country than Germany. The Canadian federation was born in 1867, four years before Germany was unified as a national state, in 1871.

The boundaries between your Länder were laid down for the most part after the Second World War, at a time where the ones between our provinces were, for quite some time, essentially well-fixed. This year, we celebrate the seventieth anniversary of the Federal Republic of Germany’s Basic Law, das Grundgesetz, while the Canadian Constitution is now 152 years old – although it was modified in 1982, notably with the addition of a Charter of Rights and Freedoms. Yes, modern Canada is older than modern Germany.

So, it is as an old friend that I am addressing you, today! An old friend who comes to deliver a message of admiration for your Basic Law. Of course, I am not pretending to teach you anything that you do not already know about your lifetime topic of research. However, I do want to thank the Forum of Federations for having given me the unique opportunity to explain why I believe that German institutions and especially the Basic Law, have served Germany well from the postwar period, onward. One of the reasons for your success is the acumen of your Basic Law.

An undeniable success in our world’s history, your institutional architecture contributed to make Germany an enviable democracy, a country that is a pleasing place to live, the fourth-largest economic power and the third-largest exporter in the world.

It is really difficult for a Canadian of my generation to imagine what Germany was like in 1949 as it attempted to rise from the ashes of war, with city centres and factories ruined, half of adult women unmarried or widowed, the effective male working population decimated, and millions of expellees, refugees and displaced families without permanent accommodation, all with the morale of the nation at its lowest point.

One of the reasons for Germany’s rebirth is that it has given itself good institutions. As for the future, I am convinced that the Basic Law, your longest-lasting Constitution to date, will continue to serve you well. I know that you are presently going through some difficulties, as Canada faces its own. Notably, I see the disturbing rise of intolerance in some segments of your society; it is but diplomatic observances that prevents me from commenting further on this. I am confident that you will overcome these difficulties, in unity, as you have overcome many others, inspired by the two first sentences of your Basic Law’s first Article: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”

To this core principle of human dignity, this remarkable living document adds the other universal rights: democracy, social responsibility, personal freedoms of religion, expression and equality before the law, as well as freedom of the press, of assembly and of association, and the principle that “men and women shall have equal rights,” included thanks to one of the Basic Law’s mothers, Mütter des Grundgesetzes, Elisabeth Selbert.

Learning from the tragic destiny of the Republic of Weimar, German constitutionalists of 1949 wisely decided to correct what appeared as the vices of its Constitution. Under the Basic Law, the Bundestag cannot delegate its legislative function to the Chancellor.

To overthrow the Chancellor and her government, Parliament must first elect a successor with the vote of a majority of its members. The President does not have the constitutional emergency powers to suspend civil rights and to dissolve Parliament while keeping in office the Chancellor.

The Weimar extreme form of proportional representation, which resulted in a highly fragmented party system, was corrected by a mix-system of proportional representation and single member constituencies, moderated by the introduction of a threshold of 5 percent of the votes cast.

To correct the negative public image political parties had during the Weimar Republic, they are officially recognized in the Basic Law as important participants in politics and obliged to adhere to the democratic foundations of the German State.

The founders made sure that the fundamental rights (Art. 1 – 19), the basic organization of the federal republic (Art. 20), the federal division of the country in Länder and their participation in the federal legislative process cannot be removed from the Basic Law and cannot be amended in such a way that they would be affected in their essence (Art.79 (3).

It is fair to say that the fundamental architecture of the Basic Law, its core principles, have not aged and have passed the test of durability. At the same time, however, this Constitution has been able to adapt to changing realities, thanks in particular to a formula of constitutional amendments – certainly demanding, although quite reasonable, realistic and achievable: a two-thirds majority in both Chambers.

As a result, the constitutional framework remained basically the same, although several of its articles have since been reworded, extended or refined. If I am not wrong, 62 amendments have been implemented over time. Many of them have allowed the country to adjust its institutions to fundamental changes in its political environment: first building ties with the Atlantic alliance, second insuring European integration, and third, facilitating the German reunification starting with the Unification Treaty of 1990. It is a good thing for Germany, and for the world, that its constitutional framework is adaptable enough to facilitate international cooperation.

The adaptability of your Constitution will, I am confident, successfully soon pass another test: your constitutional court will decide on the compatibility between the German constitutional provisions and the Canada-European Union Comprehensive Economic and Trade Agreement (CETA). I am confident that the decision will be as positive as the one of the European Court of Justice, last spring, which found that CETA is compatible with the EU Treaties.

The Basic Law has provided Germany with a durable and stable political order, based in a solid federal system – solid enough to have welcomed, at once, six new federal states in 1990 following Germany’s unification. This marked one of the defining historical moments of the 20th century.

As you know, in 1949, German Constitutional founders wanted a federal state and it was a given for them, in the wake of a federal tradition that goes back to the founding of the Holy Roman Empire in the Middle Ages and to Johannes Althusius, a great theorist of federalism.

The founders succeeded in maximising the likelihood of joint action between the federal government and the Länder. With this aim, they invented a second chamber – unique to the world’s federal systems – a hybrid executive-legislative body, a federal organ in which the member states are represented by their governments. The founders shaped a “fusion of powers” model of federalism, where, as you know, the number of concurrent jurisdictions (twenty-six) stands exceptionally high for a federation (Canada has only three), in addition to seven other areas where your federal parliament can enact framework laws requiring the Länder to pass compatible legislation.

Since, via the Bundesrat, the Länder’s executives participate in federal legislation and help to shape them, they are inclined to accept, apply and administer these federal laws.

I have listened to numerous lively debates that you have had about the ways to improve the German federation, on issues like fiscal relations, division of power and equalization. Believe me, we have the same debates in Canada. Such discussions, as difficult they may be some times, are healthy and necessary in order to always work towards improving our institutions. What remains most important is to build on what has been done well. My main point today is that Germany has given itself, in your old friend’s opinion, good institutions. Yes, certainly improvable, but fundamentally sound.

One of the most admirable principles that transpires in the spirit of your Constitution is the one of federal loyalty. Allow me to conclude on this principle, eloquently expressed by your Federal Constitutional Court in a 1954 decision:

“The constitutional principle of federalism applying in the federal state therefore places a legal obligation on the Federation and all its constituent states to be ‘pro-federal’ in their behavior, that is to say, all members of the constitutional ‘alliance’ are required to cooperate with one another in a manner compatible with the nature of that alliance and to contribute to its consolidation and to the protection of its interests and the well-considered interests of its members.” (translation)[1]

Federal loyalty invites every partner of the federation to strengthen the constitutional alliance and to promote the interests of all, not just one’s own. Many German institutions are specifically shaped for Germany, but the principle of federal loyalty is truly universal, valid for all the federations of the world. It is a strong indication of the benefits that other federations may gain from understanding your country. One could not thank the Forum of Federations enough, for having facilitated this opportunity for mutual learning and understanding.

Long live the German federation, long live the Canadian federation, and long live the Forum of Federations!

Vive la fédération allemande, vive la fédération canadienne et vive le Forum des Fédérations !

Es lebe die deutsche Föderation! Es lebe die kanadische Föderation! Es lebe das Forum der Föderationen!

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