740.00119 Control (Germany)/2–1949: Telegram
The United States Political Adviser for Germany (Murphy) to the Secretary of State
271. Personal for Saltzman and Hickerson. Following is report of political advisers on constitution prepared as result Military Governors’ decision on February 16:1
- Acting on instructions, the political advisers have compared the principles of the basic law (provisional constitution) as adopted by the main committee of the Parliamentary Council in the third reading, with the points of guidance given in the aide-mémoire of the 22nd November 1948, transmitted by the Military Governors to the Parliamentary Council. The comparison showed that the basic law (provisional constitution) diverged from allied requirements as described in the aide-mémoire on the following points:
- Distribution of powers between the federation and the
Laender (sub-paragraph iii)
at appendix “A” and Articles 35, 36, 36A, 118C (2) of
the basic law (provisional constitution).
(i) In the field of public health, public welfare (and labor legislation) (France) (and press) (US/France) the present text of the basic law (provisional constitution) is inconsistent with the requirements of this sub-paragraph of the aide-mémoire.
(ii) Article 36A (1) appears to arrogate to the Federal Government a sphere which should belong to that of local government.
- (Article 118C (2) of the present text grants the Federal Government under emergency conditions the right to take over the command of the police forces of the Laender. Although it is provided that the exercise of this right is supervised by the Bundesrat, the French delegation considers that the present text may permit the Federal Government to act ultra vires and should be modified). (France).
Limitation of federal financial powers (sub-paragraph iv) at appendix (A) and Articles 138C (4), 122A, 122B, 123 of the basic law (provisional constitution).
The provisions of the present text do not meet the requirements of this sub-paragraph of the aide-mémoire.
- It empowers the federation to raise and appropriate large revenues to be passed on to the Laender, thus raising and appropriating revenue for purposes other than those for which it is responsible.
- It gives the federation no power to legislate on taxes for which uniformity is not essential, nor does it limit this legislation to the setting of rates or general principles of assessment.
- It also gives to the federation the collection and utilization of such taxes, both of which should be left to the individual states.
Powers of the federation to establish its own agencies (sub-paragraph vi) at appendix (A) and Article 116 of the basic law (provisional constitution).
The powers of the Federal Government in this field are clearly laid down. The limitation, however, is not that ‘state implementation is impracticable’, but rather that the field is within the legislative competence of the federation. The exercise of such powers, however, requires the approval of the Bundesrat. In case agencies are established at the middle and lower levels of administration, this approval requires ⅔ of the vote of the Bundesrat.
Freedom of access to public service of a nonpolitical character (sub-paragraph vii) at appendix “A” and Article 27B of the basic law (provisional constitution).
While sub-paragraph (1) of Article 27B meets the first requirement of this sub-paragraph of the aide-mémoire sub-paragraphs (2) and (3) clearly intend to preserve the privileges of the official class.
- Ineligibility of civil servants to simultaneous membership in a Volkstag (sub-paragraph viii) at appendix “A” and Article 62 (1) of the basic law (provisional constitution). Article 62 (1) of the present text is clearly contrary to the requirements of this subparagraph of the aide-mémoire.
- Berlin. (The French delegation considers that, in including Berlin among the Laender in which the constitution must immediately be applied, the Parliamentary Council has exceeded its mandate. They ask for the suppression of any mention of Berlin in the text of the constitution.) (France).
- In addition, the document contains variety of other provisions which, while not specifically prohibited by the London agreement, nevertheless result in an extraordinary concentration of power in the Federal Government not contemplated by that agreement. Among these powers are those relating to legislation on assemblies, press, motion pictures, hunting, protection of nature and care of the countryside, and such categorical powers as ‘prevention of the abuse of economic power’ and ‘laws relating to the economy’.
- It is the view of the French and US delegates that these conflicts with the aide-mémoire are of sufficient importance to necessitate their being called to the attention of the Parliamentary Council with a view to obtaining substantial changes therein as a condition for approval of the constitution. (US/France).
(The British political adviser, while agreeing that paragraphs 2–6 above contain points on which the draft basic law deviates from the relevant provisions of the letter of advice to Military Governors (Annex H)3 and the aide-mémoire of November 22, 1948, nevertheless considers that they do not collectively involve, especially when read in conjunction with the other provisions, too serious a divergence from the general framework of a Federal Government structure as to warrant rejection of the basic law.) (UK).”
In view of British reservation in final paragraph of this report, and certain other disagreements, it is obviously not possible to communicate an agreed statement to the Parliamentary Council. Therefore, [it is] anticipated that further conferences between representatives of Military Governors will follow in Berlin next week. If no agreement can be reached on what to say to Council, it is likely that disagreements will be referred to governments.[Page 207]
Sent Department 271, repeated 108, London 124 for the Ambassadors.