Ministerial responsibility in Germany
The ministerial responsibility in Germany can already be found in the early constitutions of southern Germany (from 1808). However, in Germany, as in other countries, there was usually little regulation as to how ministerial responsibility should actually take effect. Actual, namely political-parliamentary ministerial responsibility was only provided for by the constitutional regulations of the Frankfurt National Assembly in 1848/1849, in which parliament could indict a minister, also for political reasons.
In the North German Confederation and the German Empire (1867–1918) the constitution only stated that the Federal Chancellor or Reich Chancellor was responsible . There was no provision as to whom and how a member of the government could be held accountable. However, such provisions were also lacking in other constitutions of constitutional monarchies of the time. The implementation of the parliamentary mode of government, in which the parliament ultimately decides on the composition of the government, did not depend so much on the constitutional text, but on constitutional reality.
It was not until 1917 that parliamentary ministerial responsibility took hold in Germany, and in October 1918 it was formally enshrined in the constitution as a result of the October reforms. The ministers (state secretaries of the Reichsamt) had to have the confidence of the Reichstag. It was similar in the Weimar Republic (1919–1933): the head of state installed the government, but the ministers had to resign if the Reichstag so requested. In the Federal Republic of Germany (from 1949) it is anyway the parliament that elects the head of government (and thus indirectly the ministers) and replaces them with a successor.
Vormärz and Prussia 1850
The Bavarian constitution of 1808 was the first in Germany to stipulate that ministers were responsible to the monarch. A minister needed the monarch's confidence and could not violate the constitution or improperly enforce the law. However, there were no regulations on how this could be specifically asserted. The founding documents of the German Confederation (1815/1820) also did not contain any provisions that in a state a minister had to be responsible for a representative body. The representatives of the people should only participate in legislation and tax approvals ( state constitution ).
In the course of development it became generally accepted in some German states that a parliament, at least in theory, had the right to set up a committee to examine the actions of the government. According to the Prussian constitution of 1850, it was only the monarch who appointed and dismissed ministers. Parliament was allowed to set up committees of inquiry, and constitutional law saw the government as accountable to parliament. In practice, this was ineffective as no implementing provisions were issued. Parliament should also not be able to vote on a vote of no confidence.
Revolutionary German Empire 1848/1849
The Frankfurt National Assembly created two constitutional orders. One of them was provisional, but was already being used. It was based on the Central Power Act and the Reich Law on the promulgation of the Reich laws and the provisions of the provisional central power . Not only did the Central Power Act make ministers accountable to the National Assembly, it actually made it a practice that the ministry (government) resign if it lost the National Assembly's confidence.
The second constitutional order came to be known as the Frankfurt Imperial Constitution . According to the National Assembly and over 28 states , it was final. But since the two most powerful states, Austria and Prussia, actively fought it, it ultimately remained unrealized. The imperial constitution provided for a certain responsibility of the ministers at the imperial and state level, which could be asserted through a ministerial complaint.
Provisional central power
The provisional constitutional order provided for an imperial administrator who appointed ministers. According to Section 6 of the Central Authority Act , the Reich Administrator was irresponsible (like a monarch), while the countersigning ministers were responsible to the National Assembly. The ministers had to appear at the request of the National Assembly and provide information. They were allowed (unlike the Reichsverweser) to belong to the National Assembly at the same time.
The law does not specifically state that ministers had to resign at the request of the National Assembly. In the deliberations on the law, the right-wing center in particular hesitated to stipulate parliamentary ministerial responsibility too specifically. After the experiences of Vormarz, that would have been uncharted territory; the liberals feared that a parliamentary form of government would have endangered the upper bourgeoisie, since a majority of the Democrats could be assumed with universal and equal suffrage. Although many European constitutions, including German ones, announced a law on the concrete structuring of ministerial responsibility, constitutionalism on the continent had not yet developed such an instrument. The English impeachment was not written down.
Committee draft
On July 1, 1848, the National Assembly formed a committee to draft a law on ministerial responsibility . This draft was available in mid-August; the intention was to determine the final regulation in the German Reich. The committee distinguished between:
- a moral responsibility that even affected those formally irresponsible;
- a parliamentary one that specifically applied to the government activities of ministers. Votes in parliament were intended to show that the minister did not have the trust of the people. A man of honor would then have to resign; so this responsibility was still seen as a matter of political style.
- a constitutional one, in the case of formal misconduct, breaches of duty and omissions . Parliament must then be able to actually force the minister to resign.
- a criminal one as it applied to all citizens.
The committee contented itself with constitutional ministerial responsibility, but because its draft was formulated in a comprehensive manner, a purely politically motivated charge would have been possible:
- § 4: "A minister can be charged for any act he has committed or negligence for which he is responsible and which affects the security or welfare of the German federal state."
This also included negligence or failure to implement Parliament's decisions. The draft thus corresponded to the wishes of the left, who had called for the greatest possible accountability in plenary, although their request had been rejected. Parliament could overthrow a minister or all ministers at any time, only the procedure with this charge was more complicated than with a normal vote of no confidence.
The process of the indictment would have looked like this: An application needed the support of at least 25 MPs. After three days it had to be put on the agenda and Parliament could either reject it immediately or set up an appropriate committee. For example, the parliamentary committee would have interviewed witnesses. Parliament then decided again on the indictment. The actual trial took place in front of an imperial court.
As expected, the committee disagreed on the draft, and the National Assembly decided on August 31 to postpone its discussion. It would take a lot of time for a law that would hardly be effective in practice anyway. In November it was said that the most important question was whether there should be a jury or professional judge in the Reichsgericht, and this would be discussed later when the Reichsgericht was dealt with.
The Reichsverweser or Minister Schmerling essentially put together the first cabinet of July 15 himself, even if the ministers included several members of the National Assembly. In September, the National Assembly voted against the Malmö ceasefire , despite the ministry's announcement that it would step down in the case. The ministry then returned relatively little changed after no one else had been able to put together a new one.
The first purely parliamentary ministry in all-German history, the Gagern cabinet , came into being in December 1848 and January 1849, after difficult negotiations between the government factions. The Reichsverweser had no influence. The new Reich Minister President Heinrich von Gagern presented his government program on December 18, for which he received a majority of 261: 227 votes on January 3. Without this vote he could not have been head of government. However, the ministry of Gagern's successor did not comply with the will of the National Assembly. The Reichsverweser had installed the conservative Graevell cabinet , which provoked an (unsuccessful) motion for a provisional law that should give the National Assembly the right to recall ministers immediately after two votes.
Frankfurt Imperial Constitution
The draft constitution of the Committee of Seventeen of March / April 1848 had already spoken of ministers assuming responsibility “for the appropriateness and legality” of government action. Expediency obviously related to parliamentary-political responsibility. In the National Assembly, left and right were still arguing about how much the parliamentary system had already become naturalized in Germany. Friedrich Christoph Dahlmann from the right center saw this in December 1848, already given after the events of the year; Carl Vogt von der Linke wondered how one could believe something like this after the experiences of the last few months: In the autumn several large states had reinstated more conservative ministers.
In December 1848, the National Assembly made preliminary decisions on ministerial responsibility in the constitution, without any more precise provisions on implementation. This succeeded without protests from the right and left and without discussion, probably because this dispute should be reserved for the planned law on ministerial responsibility.
The constitution of March 28, 1849 (Art. II) declares the emperor inviolable, the countersigning ministers appointed by him responsible. As in the later Bismarck constitution of 1867/1871, there is no indication of who exactly the ministers should be responsible for; Parliament is not mentioned here. Ministerial charges in the context of ministerial responsibility then appear under the section on the tasks of the Reichsgericht (Section 126, i). The constitution is clearer with regard to the individual states: According to Section 186, the ministers of the German states should be “responsible for the representative body”. Every chamber in the federal states had the right to prosecute ministers (§ 186). The trial also took place before the Reichsgericht (Section 126, k).
The ministerial responsibility, mentioned several times, should play a key role according to the intention of the imperial constitution. It remained open whether the ministerial responsibility only concerned conduct that could be subjected to ministerial indictment. According to the committee reports, one had to think not only about the rule of law but also about political expediency. In the case of legal violations, the ministerial charge as lex perfecta would have resulted in the minister being dismissed by the court, in the case of parliamentary responsibility as lex imperfecta , there was at least no legal obligation to resign.
But the ministerial indictment was only a guarantee of ministerial responsibility in extreme cases. Not the rule of law, but the essence of the constitutional system was mentioned in the debates. Parliament had other arrows up its sleeve, such as the interpellation. The National Assembly did not want to go so far that the emperor only had to follow the will of parliament when appointing ministers. Even with clear majorities, he should have the initiative to appoint ministers. Absolute rule in parliament was rejected by the National Assembly, as was the despotism of an individual.
North German Confederation and Empire
The constitution of the North German Confederation or the Empire (1867/1871) provided in Art. 17 sentence 2 that all acts of the Federal Presidium or the Emperor were countersigned by the Reich Chancellor and thus responsible. However, as in most other constitutions in the world, there was no information on how this responsibility worked. It remained legally unclear whether parliament was allowed to control the government. The constitution also did not provide that parliament could summon government members and question them. In practice, however, this happened because Chancellor Bismarck saw it as a political duty to respond. However, he said that it was not up to parliament to demand, for example, the dismissal of a member of the government.
Over time, the Reichstag expanded its influence, around 1912 with the Small Inquiry, whereby individual members of the government could be asked about their management. During the First World War there were parliamentary governments: Georg von Hertling (October 1917 to October 1918) from the Center Party put together his cabinet after consultations with the majority parliamentary groups, as did Max von Baden (October / November 1918).
The majority groups wanted to constitutionally secure the parliamentary mode of government; the United States also called for democratic reforms in Germany before agreeing to a ceasefire. These October reforms , two laws of October 25 and 26, 1918, added, among other things, to Article 15 of the Reich Constitution:
- (3) The Reich Chancellor requires the confidence of the Reichstag in order to conduct his office.
- (4) The Reich Chancellor is responsible for all acts of political importance that the Emperor undertakes in the exercise of his powers under the Imperial Constitution.
- (5) The Reich Chancellor and his deputies are responsible to the Federal Council and the Reichstag for their administration.
According to the historian Manfred Rauh, the changes were either superfluous because parliamentarianism had already prevailed, or a “masquerade” for foreign countries. Or they were dangerous because parliamentarism was not yet stable, because changing coalitions could topple the chancellor at any time. This did not train the political groups' sense of responsibility.
It was more important (and this is also how the majority parties saw it) to change the situation in Prussia and to loosen the Reich government from its ties to the Bundesrat. Those were the real obstacles to parliamentarization. But how the political system would have developed after the amended constitution must remain open: on November 9, 1918, the Chancellor deposed the Kaiser and handed over the Chancellery, just as unconstitutionally, to the Social Democrat Friedrich Ebert .
Weimar Republic and Federal Republic
After November 9, 1918, there was initially a transitional order. A council of people's representatives was composed of right-wing and left-wing Social Democrats , with Friedrich Ebert as one of two chairmen with equal rights. The council acted both as an executive and as a legislative branch and drew its legitimation from the revolutionary people, represented by the workers 'and soldiers' councils . The Council of People's Representatives was not formally responsible to anyone. In addition, the heads of the Reich authorities (in modern terms: the ministers) remained in office and followed the instructions of the council. The Reichstag no longer met; the Council simply ignored the request of the Reichstag President.
According to the Weimar Constitution of August 11, 1919, the Reich Chancellor and Reich Minister were given responsibility for their respective areas of responsibility; there was no collective responsibility. They needed the confidence of the Reichstag to carry out their duties, even though they were appointed (and dismissed) by the Reich President . The Reichstag was also able to express mistrust to individual Reich ministers. Julia Wuttke: "With this, the control of the government was transformed from a compensation for the lack of responsibility of the monarch to a means of mutual control of powers in the parliamentary system."
As in the constitutional monarchy, however, the Reich President could dismiss the Reich Chancellor and the Reich Chancellor was answerable to him. The Chancellor was politically doubly responsible, although the President was supposed to play an impartial role. Since the Reichstag became incapable of forming a stable government majority over time, the role of the Reich President was increasingly interpreted in terms of the constitutional monarchy. This ultimately led to the so-called Presidential Cabinets , which the Reich President appointed and dismissed at his own discretion.
In 1948/1949, the Parliamentary Council made sure to strengthen parliament's control rights, but also to ensure a more stable government. The Bundestag can therefore not overthrow individual ministers, but only replace the chancellor (through the constructive vote of no confidence ) and thereby overthrow the entire previous government. The Basic Law does not explicitly mention the principle of parliamentary responsibility, but gives the Bundestag the means to monitor government. Parliament's control work is only restricted as soon as the core area of executive activity is touched.
See also
- Ministerial responsibility
- Constitutional monarchy
- Political system of the Federal Republic of Germany
source
- Draft of a law on the responsibility of the Reich ministers (extract) from August 18, 1848. In: Jörg-Detlef Kühne : The Reichsverfassungs der Paulskirche. Model and realization in later German legal life. Habil. Bonn 1983, 2nd edition, Luchterhand, Neuwied 1998 (1985), pp. 613–615.
literature
- Herbert Schambeck: The ministerial responsibility . CF Müller publishing house, Karlsruhe 1971
- Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne [u. a.] 2005 (International Law - European Law - Constitutional Law 35)
supporting documents
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 8/9.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 9/10, 12.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, pp. 170-173, 177.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, pp. 177/178.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, pp. 179/181.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, pp. 180/181.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, pp. 180/182.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, p. 183, 185/186.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, pp. 191/192, 656.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, pp. 647-649, 655.
- ↑ Manfred Botzenhart: German Parliamentarism in the Revolutionary Period 1848-1850. Droste Verlag, Düsseldorf 1977, pp. 655/656.
- ^ Jörg-Detlef Kühne: The imperial constitution of the Paulskirche. Model and realization in later German legal life. Habil. Bonn 1983, 2nd edition, Luchterhand, Neuwied 1998 (1985), pp. 459-461.
- ^ Jörg-Detlef Kühne: The imperial constitution of the Paulskirche. Model and realization in later German legal life. Habil. Bonn 1983, 2nd edition, Luchterhand, Neuwied 1998 (1985), p. 461/462.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 13–15.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, p. 15/16.
- ↑ Manfred Rauh: The parliamentarization of the German Empire , Droste Verlag, Düsseldorf 1977, p. 460/461.
- ^ Manfred Rauh: The parliamentarization of the German Empire , Droste Verlag, Düsseldorf 1977, p. 462.
- ^ Stefan Danz: Law and Revolution. The continuity of the state and legal system as a legal problem, illustrated using the example of the November Revolution of 1918 in Germany. Publishing house Dr. Kovač, Hamburg 2008, pp. 50, 160.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 16/17.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 18/19.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 20, 41.