Constitutional/Legal Response to Extremism (FRG)

• The Statute of Occupation allowed the occupying forces to take control in the event of an emergency, and until the rearmament of the mid-1950s, take responsibility for the defence of the FRG.
• Politicians, political commentators and most ordinary citizens were fully aware of how easy it was for a government to use emergency legislation to suspend democracy and rule as a dictator. Most could remember both Article 48 of the Weimar Constitution and the Enabling Laws of 1933.
• Due to the question of emergency measures being hotly debated during the drafting of the 1949 Basic Law, the issue remained unresolved. It contained no provision for emergency measures, however it did contain the right to ban political parties that sought to undermine the democratic system.
• The absence of any provision for emergency measures was associated with the issue of full sovereignty. The Allied Powers wouldn't relinquish their rights to assume control if the FRG had no provision to take emergency measures to defend itself in the event of an attack. The Allied Powers were also worried about the safety and security of their own personnel.
• The Paris Treaties of 1954 ended the formal occupation of the FRG by the Allied forces but still maintained their powers to take control in the event of an emergency. Many citizens were happy for this state of affairs to continue as Allied troops stationed on FRG soil provided an effective means of defence.
• Both the SPD and FDP were opposed to emergency legislation and as a result it failed to pass the Bundestag on 3 separate occasions:

  • 1958
  • 1960
  • 1963
• However, in 1965, partly as a price to enter into the Grand Coalition, the SPD ended its opposition to emergency legislation. As student protest grew more widespread and the fears over the cold war intensified, emergency legislation returned to the political agenda.
• In May 1968, the Bundestag passed 'Emergency Laws', with a majority of more than 100. The laws authoritised the federal government to gain extra powers they deemed necessary during a 'national emergency'.
• Powers included under the emergency laws:

  • intercepting mail
  • tapping telephones
  • house searches
  • restrictions in certain jobs linked to state security or education
• The 1968 emergency laws were written into the constitution. However, while it allowed for the suspension of civil liberties, it was very precise as to the assumption of emergency controls and period of time they covered. The intention was primarily to prevent a potential dictator from taking control.
• Emergency legislation was strictly circumscribed:

  • required approval from both the Bundestag and states' governments
  • couldn't abolish existing checks and balances
  • couldn't dissolve the Bundestag - Bundestag could decide when the emergency was over so the emergency powers could be ended
  • the role of the federal constitutional court remained inviable throughout the emergency
• The emergency laws of 1968 terminated the provision of the Statute of Occupation which asserted the right of the Allied Powers to take control in the event of an emergency. It finally provided the FRG with full sovereignty and control over its own affairs.