Constitutional System In Germany

Unlike the American political system and the British political system which essentially have existed in their current form for centuries, the current German political system is a much more recent construct dating from 1949 when the American, British and French zones of occupation were consolidated into the Federal Republic of Germany (West Germany). In 1990, the former German Democratic Republic (East Germany) joined the Federal Republic. However, the 1949 constitution embraces a central feature of the original German constitution of 1871 – which brought together Prussia with Europe’s other German states (except Austria) – and the Weimar Constitution of 1919 – which involved a sharing of power between the central government and local Länder (states) – namely a disperal of authority between different levels of goverment. So the Basic Law (Grundgesetz) of 1949 deliberately distributes power between the central government and the Länder. The vitality of Germany’s democratic system and the quality of its political leadership – Chancellors such as Konrad Adenauer (1949-1963), Willy Brandt (1969-1974), Helmut Schmidt (1974-1982) and Helmut Kohl (1982-1998) – have been enormously impressive.

The Executive

The head of state is the President, a largely ceremonial position, elected for a maximum of two five-year terms. The voters in the election for President are known collectively as the Federal Convention, which consists of all members of the Bundestag and an equal number of members nominated by the state legislatures – a total of 1,244. The current President is Joachim Gauck. The head of the government is the Chancellor (equivalent to the British Prime Minister). The current Chancellor is Angela Merkel of the CDU. Every four years, after national elections and the convocation of the newly elected members of the Bundestag, the chancellor is elected by a majority of the members of the Bundestag upon the proposal of the President. This vote is one of the few cases where a majority of all elected members of the Bundestag must be achieved, as opposed to a mere majority of those that are currently assembled. This is referred to as the Kanzlermehrheit (Chancellor’s majority) and is designed to ensure the establishment of a stable government. Most significantly, the Chancellor cannot be dismissed by a vote of no confidence. In fact, in the six decades of the Bundestag, there have been only eight Chancellors – a remarkable element of stability. In the same period of time, Italy has had 37 Prime Ministers (although some of served several separate terms of office). The current Chancellor is Angela Merkel of the CDU. As in Britain or France, day to day government is carried out by a Cabinet, the members of which are formally appointed by the President but in practice chosen by the Chancellor. Since Germany has a system of proportional representation for the election of its lower house, no one party wins an absolute majority of the seats and all German governments are therefore coalitions.

The Bundestag

The lower house in the German political system is the Bundestag. Its members are elected for four-year terms. The method of election is known as mixed member proportional representation (MMPR), a more complicated system than first-past-post but one which gives a more proportional result (a variant of this system known as the additional member system is used for the Scottish Parliament and the Welsh Assembly). Half of the members of the Bundestag are elected directly from 299 constituencies using the first-past-the post method of election. Then the other half – another 299 – are elected from the list of the parties on the basis of each Land (the 16 regions that make up Germany). This means that each voter has two votes in the elections to the Bundestag. The first vote allows voters to elect their local representatives to the Parliament and decides which candidates are sent to Parliament from the constituencies. The second vote is cast for a party list and it is this second vote that determines the relative strengths of the parties represented in the Bundestag. The 598 seats are only distributed among the parties that have gained more than 5% of the second votes or at least 3 direct mandates. Each of these parties is allocated seats in the Bundestag in proportion to the number of votes it has received. This system is designed to block membership of the Bundestag to small, extremist parties. As a consequence, there are always a small number of parties with representation in the Bundestag – currently the figure is only six (and effectively the CDU and the CSU are the same party). At least 598 members of the Bundestag are elected in this way. In addition to this, there are certain circumstances in which some candidates win what are known as an overhang seat when the seats are being distributed. This situation occurs if a party has gained more direct mandates in a Länd than it is entitled to according to the results of the second vote, when it does not forfeit these mandates because all directly elected candidates are guaranteed a seat in the Bundestag. This electoral system results in a varying number of seats in the Bundestag. In the 2005 elections, there were 16 overhang seats while, at the last election in 2009, there were even more overhang seats (24). In 2008, the highest German court de-legalized the overhang seats claiming them to be “absurd” and obliged the Bundestag to change the electoral system on that issue. A deadline was fixed for doing so of end June 2011. One striking difference when comparing the Bundestag with the American Congress or the British House of Commons is the lack of time spent on serving constituents in Germany. In part, that difference results from the fact that only 50% of Bundestag members are directly elected to represent a specific geographic district. In part, it is because constituency service seems not to be perceived, either by the electorate or by the representatives, as a critical function of the legislator and a practical constraint on the expansion of constituent service is the limited personal staff of Bundestag members (especially compared to members of the US Congress). The Bundestag elects the Chancellor for a four-year term and is the main legislative body.

The Bundesrat

The upper house in the German political system is the Bundesrat. At first glance, the composition of the Bundesrat looks similar to other upper houses in federal states such as the US Congress since the Bundestag is a body representing all the German Länder (or regional states). However, there are two fundamental differences in the German system:   1.Its members are not elected, neither by popular vote nor by the state parliaments, but are members of the state cabinets which appoint them and can remove them at any time. Normally, a state delegation is headed by the head of government in that Land known in Germany as the Minister-President.   2. The states are not represented by an equal number of delegates, since the population of the respective state is a major factor in the allocation of votes (rather than delegates) to each particular Land. The votes allocation can be approximated as 2.01 + the square root of the Land’s population in millions with the additional limit of a maximum of six votes so that it is consistent with something called the Penrose method based on game theory. This means that the 16 states have between three and six delegates This unusual method of composition provides for a total of 69 votes (not seats) in the Bundesrat. The state cabinet then may appoint as many delegates as the state has votes, but is under no obligation to do so; it can

restrict the state delegation even to one single delegate. The number of members or delegates representing a particular Land does not matter formally since, in stark contrast to many other legislative bodies, the delegates to the Bundesrat from any one state are required to cast the votes of the state as a bloc (since the votes are not those of the respective delegate). This means that in practice it is possible (and quite customary) that only one of the delegates (the Stimmführer or “leader of the votes” – normally the Minister-President) casts all the votes of the respective state, even if the other members of the delegation are present in the chamber. Even with a full delegate appointment of 69, the Bunsderat is a much smaller body that the Bundestag with over 600 members. It is unusual for the two chambers of a bicameral system to be quite so unequal in size. The Bundesrat has the power to veto legislation that affects the powers of the states.
The Judiciary

Germany’s supreme court is called the Federal Constitutional Court and its role is essentially as guardian of the constitution. There are 16 judges divided between two panels called Senates, each holding office for a non-renewable term of 12 years. Half the judges are elected by the Bundestag and half by the Bundesrat, in both cases by a two-thirds majority. Once appointed, a judge can only be removed by the Court itself. Whereas the Bundestag and the Bundesrat have moved from Bonn to Berlin, the Constitutional Court is located in Karlsruhe in the state of Baden-Württemberg.

Political Parties

Like many countries – including Britain, France, and the USA – Germany has two major party groupings, one Centre-Right and the other Centre-Left. Like many countries – including Britain, France, and the USA – Germany has two major party groupings, one Centre-Right and the other Centre-Left. The Centre-Right grouping comprises two political parties that operate in different parts of the country so that there is no direct electoral competition between them. The Christian Democratic Union (CDU) operates in all the Länder except Bavaria, while the Christian Social Union (CSU) operates only in Bavaria. The Centre-Left party is the Social Democratic Party (SPD in German). The other parties represented in the Bundestag are:

  • • The Free Democratic Party (FDP) – a Rightist party
  • • The Left Party – built on the former Communist Party
  • • The Alliance ’90/The Greens – the German Green party

The electoral system in the German political system means that coalition governments are very common. The Social Democratic Party was in coalition with the Greens – the Red/Green coalition – from 1998-2005 and, from 2005-2009, there was a ‘grand coalition’ between the CDU/CSU and the SDP. Since 2009, the CDU/CSU has been in a coalition with the FDP. Unusually political parties in Germany receive significant public finds and the costs of election campaigns are substantially met from the public purse.

The Lander

During the initial occupation of Germany after the Second World War the territory in each Occupation Zone was re-organized into new Länder (singular Land) to prevent any one Land from ever dominating Germany (as Prussia had done). Later the Länder in the western part of the former German Reich were constituted as administrative areas first and subsequently federated into the Bund or Federal Republic of Germany. Today, following the reunification of Germany, there are 16 Länder in the German political system. The cities of Berlin and Hamburg are states in their own right, termed Stadtstaaten (city states), while Bremen consists of two urban districts. The remaining 13 states are termed Flächenländer (area states). The Basic Law accords significant powers to the 16 Länder. Furthermore there is a strong system of state courts. Politics at the state level often carries implications for federal politics. Opposition victories in elections for state parliaments, which take place throughout the federal government’s four-year term, can weaken the federal government because state governments have assigned seats in the Bundesrat. Like all political systems, the German one has its strengths and weaknesses. The great strength of the system – a deliberate feature of the post-war constitution – is the consensual nature of its decision-making processes. The Bundesrat serves as a control mechanism on the Bundestag. Since the executive and legislative functions are closely intertwined in any parliamentary system, the Bundesrat’s ability to revisit and slow down legislative processes could be seen as making up for that loss of separation. On the other hand, it can be argued that the system makes decision-making opaque. Some observers claim that the opposing majorities in the two chambers lead to an increase in backroom politics where small groups of high-level leaders make all the important decisions and then the Bundestag representatives only have a choice between agreeing with them or not getting anything done at all.

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