German Constitution: Features, Comparison with Indian + other constitutions

Germany is a federation and the residuary powers in Germany lie with the states. The states are referred to as ‘Landers’.

It has a Parliamentary form of Government, modeled on the British Parliamentary form. But it is not just a replicate of the system.

Germany is called as ‘Chancellor’s Democracy’. Chancellor is the PM.

President is the Constitutional Head.

Salient Features

  • Chancellor’s Democracy
  1. The Chancellor has a clear-cut superiority over other Ministers.
  2. Chancellor Principle: Chancellor has a privilege to determine the broad policy and other ministers are expected to act as per these guidelines. While a minister works under these guidelines, he enjoys a lot of autonomy with respect to his department. This mechanism ensures the stability of the coalition government.
  • Cabinet Principle

It comes into existence only when there is a dispute among different departments. In such a situation decision is taken collectively.

  • Constructive Vote of No-Confidence

The motion of no-confidence against the Chancellor is permitted only when those bringing the notion can prove that they are in a position to form an alternative government. This is also to deal with the problems of Hung Assembly (Coalition Government).

Parliament

Germany has two houses:

  1. The Bundestag: The lower house in the German political system is the Bundestag. Its members are elected for a four-year term. The method of election is known as Mixed Member Proportional Representation (MMPR), a more complicated system than First-Past-The-Post (FPTP), 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).

Manner of Elections

Half of the members of the Bundestag are elected directly from 299 constituencies using the first-past the post method of election. 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:

  1. The first vote allows voters to elect their local representatives to the Parliament and decides which candidates are sent to Parliament from the constituencies.
  2. 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.

Reason behind adopting the above Election System

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.

Overhang Seat

In addition to the above, there are certain circumstances in which some candidates win what is known as an ‘Overhang Seat’, when the seats are being distributed. This situation occurs if a party has gained more direct mandates in a Land 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.

Comparative analysis of Bundestag

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. This is so because:

  1. Only 50% of Bundestag members are directly elected to represent a specific geographical district.
  2. A serving constituency seems not to be perceived, either by the electorate or by the representatives, as a critical function of the legislator.
  • There is also a practical constraint on the expansion of constituent service in the form of a limited personal staff of Bundestag members (especially compared to members of the US Congress).

The Bundesrat

The upper house in the German political system is the Bundesrat. At a 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 Lander (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). They 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 the 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 vote 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 the composition provides for a total of 69 votes (not seats) in the Bundesrat. The State Cabinet may then appoint as many delegates as the state has voted, 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 Bundesrat is a much smaller body than the Bundestag with over 600 members. It is unusual for the two chambers of a bicameral system to be quite so unequal in size. But the Bundesrat has the power to veto a legislation that affects the powers of the states.

By B2B

Revisiting the Basics

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