Immigration Bill Heads To Germany's Highest Court

On Thursday, German President Johannes Rau made history by signing the country’s first immigration bill into law. But minutes after his announcement was made, opposition Christian Democrats said they would block the law by seeking an injunction against it at the country’s highest court. Led by Thuringia Premier Bernhard Vogel, the conservative block of state premiers in the upper legislative chamber, the Bundesrat, opposed the ratification of the law on grounds that it had been passed unconstitutionally.

Back in March the debate over the passage of Germany’s immigration bill turned into a dispute over procedural irregularities in the Bundesrat. Two representatives from the state of Brandenburg had cast two conflicting votes, instead of the one unified vote constitutionally allowed per state.

Social Democratic Premier Manfred Stolpe cast a "yes" vote, while his coalition partner, Interior Minister Jörg Schönbohm of the Christian Democratic Union, voted "no." The Social Democratic President of the Bundesrat, Klaus Wowereit of Berlin, resolved the conflict by counting it as a "yes" vote. The result was a slim majority of 35 votes in favor of the immigration bill.

Members of the Christian Democratic Union and the Christian Social Union were outraged by the vote, and vowed at that time to overturn the final ratification by sending the issue to the Federal Constitutional Court for a hearing on the legality of the legislative process.

If the high court decides that the voting process in the Bundesrat and the ensuing approval by President Rau are in violation of constitutional procedures, the law will be nullified.

A constitutional violation?

As the country's president, Johannes Rau is obliged to review the constitutionality of every bill before he can approve them. Therefore, when he was faced with the decision to sign the immigration bill, he had to consider two issues: whether the bill’s contents were constitutional, and more critically, whether its passage was legal.

On Thursday during his speech, Rau said he had decided to approve the bill because he could not find an "unequivocal and clear" breach of the constitution, neither in the bill’s contents, nor in its legislative procedure. At the same time, Rau said he welcomed the Christian Democrats’ legal protests. "I even believe it would be desirable for the Federal Constitutional Court to clarify this issue, so that the Bundesrat and the federal states have legal certainty," he stated.

The main question for the court will be to decide whether or not Brandenburg’s conflicting "yes-no" vote was correctly interpreted as a unanimous vote, as is required under Article 51 of the constitution which establishes the voting procedures for the Bundesrat. If this is not the case, and the court rules that the President of the Bundesrat illegally imposed a single "yes" vote where a difference of opinion was obvious, then the bill will no longer have the required 35 votes for passage. In effect, the law signed by Rau on Thursday would then be rejected as unconstitutional by the federal court.

Germany’s Supreme Court

Established in 1951, Germany’s Federal Constitutional Court is responsible for upholding the country’s constitution. In the case of a constitutional dispute, the federal court can be called on to mediate. Its decision is final, and all state and federal institutions are subject to its ruling. The Constitutional Court is not a political institution. However, its decisions may have political ramifications, such as when it rules that a law passed by the German parliament or Bundesrat is unconstitutional.

Sixteen judges preside over the federal court, each with a 12-year term limit. Half of the judges are elected by the parliament, the other half by the Bundesrat. For administrative purposes, the court is divided into two senates with eight members. Each senate has three to four chambers for dealing with the daily court hearings. Only for larger issues or in the case of institutional mediation, does the entire senate convene.

The German high court has just three areas of jurisdiction, each clearly outlined in the constitution: the protection of citizens’ constitutional rights, the determination of a law’s legality, and mediation of disputes between federal institutions or political parties. The dispute over the immigration law falls in the latter category.

In the case of the legal dispute over the Bundesrat’s voting procedures, the Federal Constitutional Court will begin hearings as soon as an official claim for judicial mediation has been filed with the court. The hearings could then take as long as half a year or more, which would mean that the immigration law does not go into effect on January 1, 2003 as planned.