Foreign Relations of the United States, 1948, Germany and Austria, Volume II

CFM Files: Lot M–88: Box 119: MGC Papers

Final Report of Working Party Number 5 of the Military Governors’ Conference¹

secret

9 April 1948.

MGC/P(48) 8

Future Political Organization of Western Germany

1. federal legislative bodies

(a) The German Legislative system should be bicameral.

(b) The Upper House should be composed of an equal number of representatives from each Land.

(c) Representation in the Lower House should be proportional to the population of the Laender.

(d) [Members should be elected to the Lower House by the individual Landtage in proportion to the strengths of the political parties in each Landtage. (FR & BE).]

[The election should be carried out directly by the populations of the Laender under arrangements to be made by individual Laender, the latter being allowed to choose their own electoral system. (US & UK).]

2. federal executive bodies

[The question of whether executive power should be exercised by an independent Executive, by Ministers collectively responsible, by Ministers individually responsible, or by a combination of these systems, should be left to the decision of the Germans. (US & UK).]

[The Executive Power should be constituted by a collegial authority of which the members, individually responsible before the two Assemblies, would be individually elected by these for a fixed term. The Chairmanship of this Government would be undertaken by one of its members for an equally limited length of time, his immediate reelection at the expiration of his mandate being forbidden. He would fulfil the functions of the Chief of State. (FR & BE).]

3. chief of state

(a) If there is to be a Chief of State [which the French Delegation does not favour] his powers should be limited to those exercised by a Constitutional Head of State without independent executive authority. Emergency powers, if any, should be exercised by the Government within narrow limits prescribed in the Constitution.

(b) [The direct popular election of the Chief of State is not admitted (UK, FR & BE).]

4. division of powers between federal houses

(a) [The two houses should enjoy approximately equal powers of legislation, subject to certain reservations mentioned below (Para 4–b) (US, FR & BE).]

[The question of whether the Upper House should enjoy a suspensory veto only or whether both Houses should enjoy equal powers of legislation, should be left to the Germans (UK).]

(b) The two Houses should enjoy equal powers of initiating legislation except that the initiation of money bills might be reserved to the Lower House, and there might be certain powers reserved to the Upper House, e.g. in connection with Foreign Affairs and the confirmation of certain appointments.

5. division of powers between federal and land governments

(a) The Federal Government should enjoy only those powers expressly delegated to it under the Constitution.

(b) In no case should the following powers be delegated to the Federal Government: Education, Public Health, Public Welfare, Police, Culture and Religious Affairs and Local Government.

(c) In such fields as Criminal, Civil and Commercial Law, Banking and Insurance, Food and Agriculture, Trade and Commerce, matters concerning only one Land should not be delegated to the Federal Government. The jurisdiction of the Federal Government should be restricted to the aspects of these fields affecting more than one Land. [N.B. Subject to confirmation so far as the French Delegation is concerned.]

(d) In the field of taxation:

(i) The Federal Government should only enjoy the powers of taxation expressly delegated to it and to the extent necessary to meet expenditure incurred in the performance of the functions allotted to it under the constitution. [This delegation should be limited to customs. (FR & BE)]

[On the assumption that the two Federal Houses have approximately equal powers of legislation (US).]

[The Federal and Land Governments should have independent sources of revenue, the actual Allocation within the following principles being left to the Germans (US & UK).]

[The needs of the Federal Government which will not be covered by the yield of customs should be met by contributions of the Laender which, on the assumption that both Federal Houses have approximately equal powers of legislation, could be fixed as a percentage of the resources of the Laender or of certain of those resources and would be determined each year by the Federal legislative Houses (FR & BE).]

(ii) The Federal Government should have the power to dispose of monies only for the purposes for which it is set up.

(iii) The Federal Government should be empowered to set the rates for certain specified taxes.

(iv) The Federal Government should have the power to legislate on the general principles of assessment [and administration (US & UK).] of those taxes for which a certain uniformity is essential.

(v) The agencies of the Laender should be used for the collection of taxes, except that it should be possible for the Federal Government to set up its own collecting agencies for customs [and other taxes assigned to it (US & UK).]

6. federal judiciary

(a) There should be a Federal Supreme Court with the power to settle conflicts between Federal and Land Authorities, to decide on the constitutionality of Federal legislation, and with appellate jurisdiction to protect the civil rights of individuals against acts by the Federal Government, and to ensure the application, with due regard for uniformity, of Federal Law;

(b) There should be complete independence of the judiciary from the Legislative and Executive Branches of the Government.

(c) [In cases involving Federal Law, the establishment of a system of lower Federal Courts or the maintenance of original jurisdiction in such cases in the Courts of the Laender, should be left to the decision of the Germans (US, UK & BE).]

[There should be no Federal Tribunals at Land level (FR).]

7. civil Rights

The German constitution should conform to the provisions of the draft declaration and covenant of the United Nations Commission on Human Rights.

8. execution of federal law

[Certain Federal Administrative agencies will be required for the execution of Federal Law and Land and Local level, and these agencies should be staffed by Federal Personnel (US & UK).]

[Although certain Federal Administrative agencies may be unavoidable, they should be exceptional and should, to the maximum possible extent, be staffed under arrangements made by the Land Authorities (FR & BE).]

9. citizenship

Some form of dual citizenship is favoured.

10. land boundaries

(a) [The question of re-drawing the Land Boundaries should be referred to the Germans as part of the constituent process under specific directions to be agreed among the Allies (US, UK & BE.) ]²

[The question of the new delineation of Laender should be settled, after consultation with the Germans in a certain number of cases, before the convocation of the Constituent Assembly and within the limits defined by precise Allied directives (FR).]

(b) The re-drawing of Land boundaries should be completed in accordance with the following principles:

(i) The State of Prussia should never be revived; nor should the constitution of any state sufficiently powerful to dominate Germany as a whole be permitted.

(ii) There should be no enclaves or exclaves. This will mean that the Palatinate must remain separated from Bavaria.

(iii) There is no objection to the continuance as units in the German Federation, of the free cities of Hamburg and Bremen but the creation of any other comparably small units should be permitted only in exceptional circumstances.

(iv) Large states with historic identity should not be split up unless compelling necessity therefor can be shown.

(v) Wuerttemberg-Baden may be either one whole state or two separate states. The question should be settled by plebiscite. It was agreed that one state would be preferable.

(c) Views of delegations on Rhineland, Westphalia, Palatinate

U.K.: His Majesty’s Government would be unwilling to agree to the separation of North Rhine from Westphalia unless German opinion showed itself clearly in favour of separation. In principle, however, His Majesty’s Government would wish to give effect to the recommendation of a German inter-Land Boundary Commission appointed to consider the subject.

France: The French delegation foresees the constitution of a Rhineland State, which would be formed of a Rhineland actually included in the British Zone and the Regierungsbezirke of Coblenz and Trier. The capital would be Cologne. The Two Kreise of Diez and St. Goarshausen and possibly the Bavarian Palatinate, if its population pronounce itself for this solution, would be attached to the existing Hesse, while Westphalia would constitute a Land.

In the event of the Land North Rhine Westphalia being maintained, the French delegation demands the maintenance of Land Rhineland Palatinate.

Benelux: The question of the North Rhineland and Westphalia is naturally linked to that of South Rhineland and the Palatinate. Considering the whole of the Rhenish problem and the arguments presented on the one hand or on the other, which all carry real weight, the Benelux Delegation is of the opinion that a procedure for the consultation of the population should be undertaken through the organs of the Governments of the interested Laender.

11. composition of the constituent assembly

(a) (i) The Constituent Assembly should be formed on a basis which would achieve a compromise between the principle of equal Land representation and the principle of representation in proportion to Land populations.

(ii) [The task of summoning the Constituent Assembly should be entrusted to the German Provisional Government with instructions to do so on the basis set out in sub-para 11 (a) (i) above (US & UK).]

[As far as possible, the Laender which are to form Germany should be fairly analogous in size and population. This is one of the reasons why they should all be represented in the Constituent Assembly by an equal number of delegates. This principle would, on the other hand, admit of exceptions in order to take into account differences of population, in the event of the plan for the delineation of new Laender bringing out between them too marked a disequilibrium. The Free Cities can in this connection be held as an example. (FR)]

[The compromise, referred to under 11 (a) (i) above, could be realised by ensuring the formation of a Constituent Assembly by a double method of election of its members, a fraction of the members of the Constituent Assembly being elected in accordance with the principle of equal representation of the Laender and the other in accordance with the principle of representation proportional to the population of the Laender. (BE)].

(b) Subject to agreement on its composition, the Constituent Assembly should be convened not later than 1 October 1948.

ratification of the constitution

24. The Constitution should be ratified at least by a majority of votes in the majority of Laender, and also by a majority of total votes cast.

1. The Military Governors did not approve this Report nor did they agree to submit it to the resumed London Conference on Germany, but it was agreed to make available copies of the Report for the information of the Conference; see the Report of the Military Governors, document MGC/P(48) 16, April 14, p. 181.
2. Telegram 601, April 6, to Berlin, not printed, stated that in general the Department of State favored revision of Land boundaries along rational lines with (a) adequate opportunity for the consideration of German views and (b) the least possible change in current zonal boundaries (740.00119 Control (Germany)/4–648). Telegram 820, April 8, from Berlin, not printed, explained that this paragraph seemed in general to correspond largely with the thinking of the Department. The telegram pointed out that the Working Party recommendation obviously associated the Germans with the decisions on Land boundaries and gave them complete opportunity of offering constructive proposals (740.00119 Control (Germany)/4–848).