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VOL. 28, NO. 25, April 03, 2009 (Chaitra 21 2065)
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“A Strong Constitutional Court Has To Develop As An Independent Institution”
Dr. Siegfried Bross
Professor DR. SIEGFRIED BROSS, judge of Federal Constitutional Court of Germany, recently visited Nepal in the context of constitution making project. Invited by GTZ’s Federalism Support Program, he interacted with the constitutional experts at the office of Consortium of Constitutional Experts (CONCOE). Professor Bross - who has been working in the Constitutional Court for more than ten years – delivered his statements regarding the role of constitutional court in Germany. KESHAB POUDEL compiled excerpts of his statement
What does the Constitutional Court do in Federal Republic of Germany?
We have a federal Constitutional Court which is a constitutional body and can interpret the law and constitutions and settle the disputes between the Laender (province or state), Laender and Federal and protect the individual rights and human rights. State organization of FRG has peculiar characteristics. Whenever there are some disputes between the Laender (Province) and Federal government, it is the constitutional court, which settles the matter. In Germany, the federal Constitutional Court plays a very important role to protect the rights of all the people as well as identification of German people. This is a symbol of integration. In a recently conducted study, Constitutional Court emerged as a highly respected state institution.
How do you see the role of Constitutional Court?
This is the institution related to identification and unification of Germany. The fundamental of modern states lies on the rule of law and the role of this kind of constitutional court is to guarantee the rule of law. The ruling of the last sixty years shows that the constitutional court is there to guarantee the individual freedom and rule of law. Independence is one of the most important factors to promote rule of law. It is the constitutional court which decides major constitutional issues.
How are the members of Constitutional Court appointed?
There are 16 judges in the Constitutional Court. They are appointed by federal Bundestag and half of the members represent various Laenders. The judges serve for 12 years. The court receives 5000 to 6000 thousands co complaints every year. Constitution of Germany defines certain basic identity which includes the prohibition of torture, abolition of the death penalty. The constitution has created the basic identity under the rule of law not on the basis of national and nationalistic identity.
At a time when Nepalese politicians have been harping that the federalism is a panacea to all the problems, how do you see the issue of federalism?
My experience is based on different situation that differentiated the federalism. What I can say is that federalism cannot solve all the problems.
Nepal is going to have federal structure now, how would you suggest to put them together?
I am here to share my ideas not to suggest models. What I can say is that there need a strong constitutional court which has to develop as an independent institution which takes up the constitutional issue. This process may establish Constitutional Court as a kind of institution for integration. This institution may reduce contradicting tendencies among different units. If there is no goodwill to stay together then you will have a problem and one can hardly solve it. Nepal is going to be federal state and it has to learn from such experiences.
What are your experiences in Germany?
Some quarters in Germany even have proposed to reduce 16 Laenders (province or states) to eight. We have some city states which are not very much economically viable and we have small states which always have difficulty to survive. The state structure is always very heavy and expensive one.
Don’t you think the globalization is affecting the federalism?
The experiences and process of globalization in the last decade have created a new situation where none of the lenders or state can really exist by its own. The differences in legal, administrative, educational and other systems are hampering the globalization process and the interrelations between economic centers. Different lenders are facing difficulty to react to new challenges of today’s world.\
Were there any difference?
Shortly after the creation of federal republic, some Laenders thought that they need to do something in order to restructure states which have evolved after the World War II. The structures were very much dominated by the allied forces than the traditional thinking in terms of ancient ethnic boundaries. In1958, some Laenders realized that there is a need to redefine whole federal republic concerning highway networks, the use of river base, water ways, airports and railways which the lenders would have.
How do you define the autonomy?
You are in the process of debate here over the autonomy of the state. For instance, we have our own experiences. A decade after the implementation of federalism in 1959, our Laenders have realized that exercise of too much autonomy would not be very much useful for the development of the country. So they realized and accepted the fact that the authority of the federal or central government needs to be strengthened.
Do you see any change?
With this development, interesting phenomenon has occurred. A new federal kind of character appeared in Germany in the sense of self administration and autonomy which is at present at local and municipal level than the state or province level. The local government or self government is the major character of the federal state of Germany these days.
How do you see Germany’s integration to Europe Union?
Now the integration of Germany to Europe is, in one way or the other, is complicated as it is not only the federal government, which can decide whether or not to join the treaty but it has to seek consensus from other 16 Laender governments. It is the responsibility of Laenders to harmonize this issue. The integration with European issue is very difficult issue as one Germany needs to cope with 16 lenders.
Do you see any change in the role of Laenders after Germany’s integration to EU?
Probably the influence of Laenders has reduced after integration with Europe.
Wilmer constitution was said to have been destroyed by judicial activism. How do you look at it?
I don’t agree with this. During the Wilmer Republic, there was no clearly assigned Constitutional Court. Had this kind of court existed, we would have prevented the rise of Nazis. However, what contributed was the failure of criminal law system to punish nationalist extremists and their violent actions that disturbed the public order. And the civil law did not protect the privacy. The criminal court’s failure to stop the rights extremist activities is main reason behind the rise of Nazis. If the law and order was restored through the laws, there would not have been such unfortunate situation. The failure of Wilmer Constitution was that there was no provision for Constitutional Court.
