IV. Constitutional Referendum and the Basic Law (GG)
1. The Referendum in order to Change Internal Borders
a) Genesis and Purpose of Art. 29 GG
Art. 29 GG allows for the redivision of the federal territory by altering the borders of the existing Lọnder. It is not only one of the longest articles in the Basic Law, but also one that had been considerably redrafted over the time. Originally, Art. 29 GG foresaw a mandatory and temporally limited mandate for the delimitation of the new Lọnder.
Being aware that the Lọnder after World War II were mainly formed on the drawing table within the different zones of occupation, the idea behind this provision was to permit the creation of Lọnder according to regional, historical, and cultural ties as well as economic efficiency and viability.36 However the envisaged general delimitation stagnated.37 Al- though several petitions were filed and a few referenda held,38 only the south western area of Germany was finally restructured.
36 M. Herdegen, Neugliederung des Bundesgebietes im Spannungsfeld zwi- schen staatsrechtlicher Kontinuitọt und Effizienzerwartung, in: K. Bohr (ed.), Fửderalismus – demokratische Struktur fỹr Deutschland und Europa, 1992, 125. H. Hofmann, Die Entwicklung des Grundgesetzes nach 1945, in: J. Isen- see/P. Kirchhof (eds.), Handbuch des Staatsrechts, Vol. 1, 3rd ed. Heidelberg 2003, § 9, para. 87.
37 The occupying powers were quite reluctant with the constitutional man- date of Art. 29 and suspended this provision until the coming into force of the
“Deutschlandvertrag” in 1955. However the American and French Govern- ments agreed that in the south western area of Germany a delimitation was de- sirable and supported the inclusion of Art. 118 GG as a specific provision for that region. In a referendum held in 1951 the majority of 69,7% voted in favour of the new state Baden-Wuerttemberg. However, already in 1956 a petition was filed for the separation of the old state “Baden”. Only after an amendment of Art. 29 GG in 1969 by explicitly inserting that the referendum had to be held in 1970, it took place. At that time, more than 80% voted for the perpetuation of thestatus quo.
38 In 1956, shortly after the entrance into force of the “Deutschlandvertrag”, eight petitions for a referendum had been filed, six of them were successful. But it was not before 1975 before at least three of them were held. Two (reestablish- ment of the state of Oldenburg and the state of Schaumburg-Lippe, both of
It is sometimes questioned whether Art. 29 GG is an element of direct democracy in distinction to representative democracy or rather an ele- ment of the right to self-determination within a federal system compris- ing the idea of a shared sovereignty between the federal level and the Lọnder with the consequence that the people of a Land has to be asked before its territory is altered.39 However, it is undoubted that Art. 29 encompasses a constitutional referendum and is therefore of relevance to this paper.
b) Elements of Direct Democracy in Art. 29 GG (1) The Referendum Pursuant to Art. 29 (2) GG
In the present form of Art. 29 GG, the initiative to revise the existing division is generally vested with the federal parliament, but is subject to the approval of the people of the affected Lọnder. The required quorum as laid down in Art. 29 (3) and (6) GG is multilayered, two different majorities and the absence of a veto is required:
“(3) […] [3rd sentence] The proposal to establish a new Land or a Land with redefined boundaries shall take effect if the change is ap- proved by a majority in the future territory of such Land and by a majority in the territories or parts of territories of an affected Land taken together whose affiliation with a Land is to be changed in the same way. [4th sentence] The proposal shall not take effect if within the territory of any of the affected Lọnder a majority reject the change; however, such rejection shall be of no consequence if in any part of the territory whose affiliation with the affected Land is to be changed a two-thirds majority approves the change, unless it is re-
them part of Lower Saxony) were successful but the federal legislator ignored the outcome of the referenda arguing that the criteria of Art. 29 (1) (economic efficiency) was not met. This was in line with Art. 29 (4) GG in its revised form from 1969 to 1976. In 1994, together with the latest revision of Art. 29 GG, Art.
118 a GG was inserted. It permits to revise the division of the territory com- prising Berlin and Brandenburg by agreement between the two Lọnder with the participation of their inhabitants who are entitled to vote. Thus, a federal law is not required. Such an agreement was set up in 1995 and accepted by the people of Berlin, but not by those of Brandenburg.
39 In this direction the Federal Constitutional Court in BVerfGE 5, 34 at 41.
H. Hofmann, Verfassungsrechtliche Sicherung der parlamentarischen Demo- kratie – Zur Garantie des institutionellen Willensbildungs- und Entscheidungs- prozesses, in: A. Randelzhofer/W. Sỹò (eds.), Konsens und Konflikt, 1986, 285.
jected by a two-thirds majority in the territory of the affected Land as a whole.”
“(6) A majority in a referendum or in an advisory referendum shall consist of a majority of the votes cast, provided that it amounts to at least one quarter of those entitled to vote in Bundestag elections.
[…]”
Art. 29 (3) requires (a) a majority in the future territory, hence in the newly created areas (3rd sentence). A Land with redefined boundaries thereby refers to the expanding Land only, but not to the downsized Land. The latter’s interests are protected by the right to veto (4th sen- tence). Additionally, (b) a majority within the area that is about to be shifted is necessary (3rd sentence). Finally, (c) the majority of each of the affected (former) Lọnder is required (4th sentence). Hover, this veto- power of the old Lọnder may be outvoted by a 2/3 majority of the area described above in (b) if not a 2/3 majority of the (old) Land that is to be downsized objects.40
(2) The Right to Initiate the Process of a New Delimitation – a Popular Initiative
Only under exceptional circumstances, Art. 29 (4) GG provides the right to initiate a new delimitation to the inhabitants of a specific area:
“(4) If in any clearly defined and contiguous residential and eco- nomic area located in two or more Lọnder and having at least one million inhabitants one tenth of those entitled to vote in Bundestag elections petition for the inclusion of that area in a single Land, a federal law shall specify within two years whether the change shall be made in accordance with paragraph (2) of this Article or that an advisory referendum shall be held in the affected Lọnder.”
However, the right to initiate the process of revising the existing divi- sion only obliges the federal legislator to give attention to the issue within two years, but not to pass a bill corresponding to the ideas of the initiators that then will be subject to a referendum. It may introduce other proposals, reject the proposal at all or initiate an advisory refer- endum. Hence, the right to initiate the process does neither amount to a petition for referendum nor to a popular initiative as defined above.
40 J. Dietlein, in: R. Dolzer/K. Vogel/K. Graòhof (eds.), Bonner Kommen- tar, 2005, Art. 29 paras 57-59; T. Maunz/R. Herzog, in: T. Maunz/G. Dürig, Grundgesetz Kommentar, 2005, Art. 29 paras 59-69.
Whatever majority involved, the issue at hand cannot be brought for- ward to a referendum without the consent of the legislative body. Art.
29 (6) in conjunction with § 21 (1) lit. a) of the Law to Art. 29 (6) GG41 determine that an unsuccessful initiative may only be repeated after five years.
(3) The Advisory Referendum in Art. 29 (5) GG
The purpose of the advisory referendum is to establish whether the law that proposes up to two new options how to change the present divi- sion meet the voters’ approval. If a majority votes in favour of one of the proposed options, a federal law has to determine whether the sug- gested delimitation should take place.
(4) The Anticipated Referendum
If the advisory referendum reaches a qualified majority as set out in the 3rd and 4th sentences of Art. 29 (3), the federal legislator has to pass a re- spective law. A referendum as required in Art. 29 (2) is not necessary any more. Hence, the advisory non-binding referendum might change to an anticipated binding one if the qualified majority is obtained.
2. The Referendum to Replace the Basic Law – Art. 146 GG42
Art. 146 GG is regarded as one of the most contested provisions in the Basic Law.43 Whereas for one side this provision became obsolete after unification since it was exclusively aimed for that purpose,44 the other side reads the provision in a way providing a twofold purpose out of
41 Art. 29 Abs. 6 of 30 July 1979, BGBl. I, 1317.
42 Art. 146 GG reads: This Basic Law, which since the achievement of the unity and freedom of Germany applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect. The italic written part was added in 1990.
43 D. Heckmann, Geltungskraft und Geltungsverlust von Normen, 1997, 422.
44 J. Isensee, Das Grundgesetz zwischen Endgỹltigkeitsanspruch und Ablử- sungsklausel, in: K. Stern (ed.), Deutsche Wiedervereinigung, Vol. I, 1991, 66 et seq.
which one is still valid.45 Without entering in a detailed analysis of that discussion, it seems awkward to consider a norm obsolete because of the unification that was amended by a descriptive and clarifying ele- ment during the process of unification.46 The provision is considered to be a German unicum, emerged from the special situation after World War II. Although it comes close to the provision in the Swiss constitu- tion providing for a complete revision of the present constitution,47 the dogmatic roots are different: Art. 146 GG focuses on the option of re- placing the provisional “Basic Law” by a “constitution”. It is consid- ered necessary in order to overcome in a legally sound manner the
“Ewigkeitsgarantie” of Art. 79 (3) GG of the provisional Basic Law.48 However, Art. 146 GG remains silent how to activate this process.
Since the right to initiate the processes is not granted to the people anywhere in the Basic Law, an implementation law is required. Some scholars even feel the legislator to be obliged to pass such a law for a constitutional norm that is generally capable to be implemented but not yet executable.49