Breach of the Constitution
Breach of the constitution describes the practice of letting a law come into force that is incompatible with the constitution of the state concerned . This is justified on the grounds that the law received a qualified majority in parliament , the same one with which the constitution could have been changed literally.
Peter Badura describes as a breach of the constitution that a law is raised to constitutional status by a qualified majority, but without changing the wording of the constitution in such a way that the incompatibility would be lifted. This prevents the constitutional control of the law. The term was coined by Erwin Jacobi and Carl Schmitt , among others . Due to the possible erosion of the constitution by exceptional laws, the Federal German Basic Law of 1949 only allowed constitutional amendments if the constitutional text was expressly changed as a result.
Situation in Germany
In German history, constitutional breaking laws are usually discussed based on the Weimar Republic . According to Angela Bauer-Kirsch, the Weimar constitution of 1919 had no text change or incorporation requirement. If you only follow the constitutional text with the few formal changes, you will miss the numerous changes caused by constitutional-breaking laws or ordinances that have constituted constitutional law. "These changes were not reflected in the constitutional document." On the other hand, if you want to compare the original version of the Basic Law with the current version, you just have to put the two next to each other. There had already been breaches of the constitution in the North German Confederation and in the Empire, for example with the extension of the Reichstag period in July 1870 (because of the war against France ) and with the Enabling Act of August 1914 (at the beginning of the First World War ).
Well-known examples of a breach of the constitution are the enabling laws in the Weimar Republic : with them, the German Reichstag transferred some of its rights to the Reich government . The extension of the term of office of Reich President Friedrich Ebert in 1922 was also problematic . Ebert was appointed by the National Assembly in February 1919 , before the constitution was drafted and came into force in August. In 1922, by a two-thirds majority , the Reichstag extended its term of office until 1925 on the official justification that a new election was irresponsible in the time of crisis. The constitution, on the other hand, required the direct election of the Reich President by the people .
Weimar discussion
The Reichsgericht confirmed the practice of violating the constitution in a judgment of March 25, 1927: "For a constitutional amendment to be effective, it is not necessary that it is expressly designated as such by the legislature or even included as such in the constitution." lex posterior , according to which the later law displaces the older one. According to a target provision of the Joint Rules of Procedure of the Reich Ministries (1924), it should be declared in the initial formula of a law that the special provisions for a constitutional amendment have been observed.
Numerous contemporary constitutional law teachers have dealt with the subject without having sharply defined the concept of breaching the constitution. According to the prevailing doctrine, this primarily meant a material constitutional amendment: The constitution was changed without (formally) changing the constitutional charter. Although the legislature passed the change with a qualified majority, it was easier to repeal it. A particular question was whether the change should apply generally or only to an individual case.
Gerhard Anschütz therefore made a distinction between express constitutional amendments, tacit (deviating from the text) and those for individual cases. Only the latter he named constitutional breaches, for which the "validity of the constitutional norm should be broken, but not completely abolished," said Angela Bauer-Kirsch. For Carl Schmitt, however, the breach of the constitution in individual cases was only a material question: In 1922 a law changed a sentence in the constitution so that the Reich President elected in 1919 should remain in office until a certain point in time. Normally the office should last seven years according to the constitution. The 1922 law was not, strictly speaking, a breach of the constitution, as the constitutional text was actually changed. According to Schmitt's definition, it was nevertheless one because materially an exceptional case was created.
The prevailing doctrine considered breaches of the constitution (whether formally or materially defined) to be undesirable, but permissible. It should just not be used unnecessarily or improperly. Carl Schmitt called for a political necessity for breaching the constitution. However, the constitutional father Hugo Preuss found that a constitutional amendment must change the text in any case. Only the Reich President may deviate from the Constitution (according to Article 48 under certain conditions), but not the Reichstag. It was often criticized that constitutional law was becoming confusing. Heinrich Triepel complained:
- “According to Art. 148 of the Reich Constitution, every pupil should be given a copy of the Reich Constitution upon completion of compulsory schooling. The time will soon come when, in addition to the constitution, the pupil will have to be given a comment stating in how many places the text of the constitutional document has become incorrect or incomplete. "
Practice in the Weimar Republic
Ernst Rudolf Huber counts for the national level:
| 1920-1924 | 1925-1928 | 1929-1932 | |
|---|---|---|---|
| Laws that changed the constitution | 6th | 1 | 1 |
| laws deviating from the constitutional text, which formally established the deviation; partly expressly with a qualified majority only to avoid doubts (in brackets) | 16 | 7 (4) | 5 (2) |
| Laws passed by a simple majority that are certain or likely to break the constitution | 13 |
However, because of numerous tacit or unconscious constitutional breaches, the numbers are much higher, Huber suspects. He cites the five enabling laws from 1920 to 1923 as the most important examples of constitutional-breaking laws. They allowed the government to issue far-reaching ordinances with the character of a law. The Republic Protection Act of 1922 also affected crimes that were committed before the law came into force, and thus contradicted the guarantee of the legal judge (Art. 105 WRV). The number of constitutional breaches with a qualified majority decreased over time because there was less and less such a majority in the Reichstag.
Situation in the Federal Republic
In order to formally prohibit constitutional breaking laws in the Federal Republic of Germany , the Basic Law of 1949 contains the following provision:
"The Basic Law can only be changed by a law that expressly changes or supplements the wording of the Basic Law."
Situation in Austria
In Austria , constitution-amending provisions are often passed within the framework of simple laws, since the wording of Article 44 Paragraphs 1 and 2 of the Federal Constitutional Law expressly allows constitutional laws and provisions outside of the constitutional document. These provisions are expressly to be described as constitutional provisions . However, since the aforementioned provisions, with their designation as constitutional provision, formally become part of constitutional law, there is no case of breach of the constitution in the narrower sense.
According to Angela Bauer-Kirsch, Austrian practice makes it difficult to keep track of constitutional changes. However, that alone is not yet to be assessed as undemocratic.
supporting documents
- ^ Peter Badura , Staatsrecht , ISBN 3-406-51445-6 , p. 497.
- ^ Ernst Rudolf Huber : German constitutional history since 1789. Volume VI: The Weimar Imperial Constitution. W. Kohlhammer, Stuttgart [u. a.] 1981, p. 424.
- ↑ Angela Bauer-Kirsch: The Constitutional Convention of Herrenchiemsee - Pioneer of the Parliamentary Council. Diss., Bonn 2005, p. 112.
- ↑ Angela Bauer-Kirsch: The Constitutional Convention of Herrenchiemsee - Pioneer of the Parliamentary Council. Diss., Bonn 2005, p. 115.
- ↑ Angela Bauer-Kirsch: The Constitutional Convention of Herrenchiemsee - Pioneer of the Parliamentary Council. Diss., Bonn 2005, pp. 116-118.
- ↑ Angela Bauer-Kirsch: The Constitutional Convention of Herrenchiemsee - Pioneer of the Parliamentary Council. Diss., Bonn 2005, p. 118.
- ↑ Angela Bauer-Kirsch: The Constitutional Convention of Herrenchiemsee - Pioneer of the Parliamentary Council. Diss., Bonn 2005, pp. 119-121.
- ^ After Angela Bauer-Kirsch: The Constitutional Convention of Herrenchiemsee - Trailblazer of the Parliamentary Council. Diss., Bonn 2005, p. 122.
- ^ Ernst Rudolf Huber: German constitutional history since 1789. Volume VI: The Weimar Imperial Constitution. W. Kohlhammer, Stuttgart [u. a.] 1981, p. 422 f.
- ↑ Angela Bauer-Kirsch: The Constitutional Convention of Herrenchiemsee - Pioneer of the Parliamentary Council. Diss., Bonn 2005, p. 115 f.