740.00119 Control (Germany)/3–249: Telegram

The United States Political Adviser for Germany (Murphy) to the Secretary of State

restricted

183. At meeting of Military Governors this morning1 statement on Bonn constitution to be communicated to representatives of Parliamentary Council this afternoon was approved.

It is emphasized of course that text of basic law now under consideration has not been voted formally by Parliamentary Council and is not before Military Governors for final approval. Text follows:

“1. My colleagues and I have asked you to come here today in order that we might comment to you upon several provisions of your proposed basic law as it was passed by the main Committee of the Parliamentary [Page 218]Council. We have studied this document in light of the aide-mémoire which our liaison officers delivered to you on 22 November 1948.

2. There are some provisions in the basic law which deviate from detailed principles set forth in that aide-mémoire. However, in viewing the document as a whole we are prepared to disregard some of these deviations but at the same time feel it necessary again to call your urgent attention to other provisions which, in our opinion, depart too far from these principles.

3. In the first place, we would like to point out that the powers of the Federal Government as now set forth in Article 36 are not defined with sufficient clarity adequately to safeguard the position of the states in a federal system. To correct this we suggest that you delete present Articles 36 and 36–A and substitute therefor a new Article 36 based very largely upon your own language and which might read substantially as follows:

Article 36.

(1) The Laender shall retain the right to legislate in the fields hereinafter enumerated except where it is clearly impossible for a single Laender to enact effective legislation or where the legislation as enacted would be detrimental to the rights or interests of other Laender. In such cases, and provided that the interests of the several Laender are clearly, directly and integrally affected, the federation shall have the right to enact such legislation as may be necessary or appropriate.

[Here follows a list of 26 fields of legislation to be retained by the Laender.]

4. In the second place, my colleagues and I would like you to understand that we are ultimately responsible for security and that the powers contained in Article 118–C may not be exercised until specifically approved by the occupation authorities. This reservation upon the exercise of these police powers will be repeated at the time when you are formally advised of our action with regard to the constitution as a whole.

5. In the third place, we have noted with concern the extent to which the provisions regarding finance powers depart from the criteria agreed upon in London and transmitted to you in Paragraph (d) of the aide-mémoire. We have already had occasion to advise you that in our opinion substantially the same provisions would result in ‘the Laender being left without adequate independent sources of revenue for the conduct of their affairs’. We would suggest, therefore, several changes in Articles 122–A, 122–B and 123 which would enable these articles more nearly to satisfy the principles of financial organization which we believe to be of primary importance in a federal system. We suggest that these be re-worded to read substantially as follows:

Article 122–A.

The federation shall have powers of exclusive legislation in customs and financial monopolies (federal taxes) and of priority legislation on the following taxes (concurrent taxes):

(1).
Excise taxes and taxes on transactions, with the exception of taxes (Land taxes) with localized application, in particular the taxes on real estate acquisition, incremental value and on fire protection.
(2).
The taxes on income, property, inheritance and gifts (or donations).
(3).
‘Realsteuern’ (taxes on real estate and on businesses) with the exception of the fixing of tax rates.

[Page 219]

Article 122–B.

The federation shall exercise priority legislation in the field of concurrent taxes only to the extent that it may require the whole or any portion of the proceeds of any concurrent tax or taxes to cover its responsibilities. If the federation takes over a portion of a concurrent tax the remaining portion shall be retained by the Laender as and where collected.

Article 123.

1.
The federal taxes shall be administered by federal finance authorities. The Federal Government may, if it so desires, administer, through federal financial authorities, those taxes which it imposes for authorized federal purposes in their entirety and the tax on income to the extent that such a tax is for federal purposes. The structure of the federal finance authorities and the finance courts and the procedure code applied by them shall be regulated by federal law. The heads of the finance and customs authorities in the Laender shall be appointed by agreement with the governments of the Laender involved.
2.
The Land taxes and concurrent taxes other than those referred to in Article 123(1) shall be administered by Land finance authorities.
3.
The raising of the ‘realsteuern’ shall be regulated by Land legislation.
To be consistent with what has been said above we wish to call your attention to the need for deleting Article 138–C(4) and substituting a detailed specification of Land taxes.

6. In the fourth place we wish to draw your attention to the fact that Article 129–1 (2) is not entirely clear as to the extent to which the independence of the judiciary is insured. We urge you to give it your thoughtful attention particularly as to the safeguards provided in connection with the dismissal of judges.

7. In the fifth place, we consider that the possibilities for the federation to establish its own administrative agencies (Articles 112/2 and 116) are wide. We would therefore like to point out that the Military Governors will have to give careful consideration at the time when such agencies are established to ensure that they do not represent too great a centralization of power.

8. In the sixth place we should like to clarify our position with regard to the question of the federal civil service. If principles with regard to the civil service as set out in Articles 27 (b) and 62 are to be embodied in the constitution they must be modified to conform to the principles enumerated in Paragraphs (g) and (h) in our aide-mémoire of 22 November 1948.

9. A seventh matter which has concerned us is the question of the reorganization of the territories of the Laender as set out in Articles 25 and 26.

In this connection we wish to draw your attention to the statements which we made to the Ministers President on the twentieth of July, the pertinent portions of which were as follows:

‘We wish you to appreciate that the question of Land boundaries is one of great importance to us. We feel that the present is an appropriate time to deal with it, and we are ready to do so. However, it would be much more difficult for us to deal with it later on. It has, for example, reactions with regard to our own zonal boundaries. We do not feel that we should be willing to deal with the subject again at a later date prior to the conclusion of a peace treaty.

Moreover, the fixing of Land boundaries is important in relation to the constitution itself. We believe that we should recommend to our governments that the boundaries which were recognized during the drafting of this constitution should remain unchanged, at least until a peace treaty is signed.

Our position today is the same as it was at that time and we feel we must now advise you that unless we unanimously agree to change this position it must [Page 220]remain so until the peace treaty. In this case also we will remind you of this decision at the time formal action is taken with regard to the constitution as a whole.’

10. Finally, my colleagues and I would like you to know that we understand the solicitude which the Parliamentary Council has shown for Berlin, however, in view of the existing situation, that portion of Article 22 which refers to Berlin must be suspended. Nevertheless, there would be no objection to the responsible authorities in Berlin designating a small number of representatives to attend the meetings of the Parliament.”

Foregoing statement will be read by Robertson as chairman of Military Governors meetings this afternoon. Should German representative inquire whether statement must be applied in its entirety, it was agreed that Robertson would reply along following lines: Object of meeting was to give Military Governors comments on constitution and Parliamentary Council should now complete its task in the light of the present proposals. Comments are not submitted as rigid text but as set of principles of great importance and Military Governors expect that great effort will be made to comply with them. By incorporating these principles in the provisional constitution, Military Governors believed that they will be able to accept constitution as being in conformity with decision of three governments.

Military Governors also considered proposed electoral law and decided that Parliamentary Council should be told that this law cannot be attached to constitution and that provisions of Article 145 cannot, therefore, apply. German representatives will be informed that the number of deputies to the Volkstag should be fixed and also allocation by Land, but Military Governors do not insist that this be inserted in constitution. The Ministers President will subsequently be informed that they should take appropriate steps to prepare necessary legislation in each Landtag and that they are free to use draft electoral law of Parliamentary Council as basis for drafting model law to be submitted to the individual Landtag.

Complete text by mail.

Repeated London 23, Paris 24.

Murphy
  1. Regarding this meeting, see Murphy’s letter to Hickerson, supra.