The control by the Reichstag over the Cabinet may be exercised also by means of a parliamentary investigating committee. This is a novelty in German public law. In its first draft the project of the Constitution did not permit the institution of investigating committees except in cases where the sincerity or the legality of an act of the Cabinet is questioned. But the National Assembly has gone further than that and, with the exception of a case of actual lack of confidence in the Cabinet on the part of the Reichstag, the latter assumes the right without limitation of appointing investigating committees. These committees may, for example, be created to examine economic and other questions of importance.
The Reichstag must proceed to the appointment of an investigating committee if a fifth of its members demand it. The procedure according to which these committees may operate is not at all prescribed. The Constitution says only that such a committee may take such testimony in open session as it itself or the authors of the proposal of the investigation may consider necessary. But by a majority of two-thirds the committee may decide that the meetings shall not be public. Tribunals and administrative authorities are obliged to comply with the requests of these committees, with the view of developing evidence. The files of these authorities are, on demand, open to these committees.
The Reichstag nominates in addition two permanent committees. One of them is that on Foreign Affairs. Its purpose is to submit the foreign policies of the Cabinet to a constant surveillance by the popular representation. It may after the adjournment of the Reichstag, or when the powers of the Reichstag have expired, or after a dissolution of the Reichstag remain in power until the National Assembly has reconvened. Its meetings are theoretically not public. However, a majority of two-thirds may order that they be such. It has the same powers as an investigating committee.
During the deliberations on the project of the Constitution, serious objections were raised against the institution of the Committee on Foreign Affairs. It was claimed that this committee would in advance be an expression of lack of confidence in the Cabinet and as an organ of surveillance would exercise a particularly troublesome influence on foreign policies. To this the reply was, that in the countries in which there have been appointed committees on foreign affairs there has been no evidence of unfavorable results. In addition, this committee would not be in the first instance a committee of surveillance, but an organism which, in matters of foreign policy would bring the influence of politically experienced personalities of the Reichstag to bear on the professional agencies of the diplomatic service.
The second permanent committee provided by the Constitution has as its purpose the control of the activity of the Cabinet of the Reich when the Reichstag is not in session, between the last meeting of one Reichstag and the opening of a new one.
This committee, which is formed on the model of an institution already in existence before the Revolution in the Grand Duchy of Baden, is supposed, during the period which the Reichstag is not assembled, to safeguard the right of popular representation against the Cabinet of the Reich. It must see to it in a permanent fashion that administration is conducted in conformity with laws, with the decisions of the Reichstag, and the will of the people. It may not sit except when the Reichstag is not in session. It has also the powers of an investigating committee.
When the Constitution was being discussed, prior to its adoption, this committee, too, was the subject of much lively opposition. Some held that the Cabinet, so long as it enjoyed the confidence of the Reichstag, did not require a special organ of surveillance. This committee, its opponents went on, was only an application of the conception that assumed an opposition between the Cabinet and popular representation. It was incompatible, therefore, with the principle of parliamentarism that rests on a harmony of the Cabinet and the Parliament. But the majority of the National Assembly held, on the contrary, that this committee would correspond fully in character to the Reichstag as an organ of control, and would be consistent with the confidence and the good will on which the Cabinet depends.
SECTION II
THE PRESIDENT OF THE REICH
The parliamentary system assumes, by the side of the Parliament elected by the people, a titular chief of state with executive power who, himself not responsible politically but assisted by ministers who are responsible, co-operates with Parliament in the different functions of the state. Basing itself, therefore, on the principle of parliamentary government, the German Constitution places at the head of the Reich a President whose situation corresponds generally to that of all the chiefs of state in parliamentary countries. The Constitution also attempts to create within the general framework of the parliamentary system, a new type of chief of state. It is important therefore to examine precisely the principal characteristics of these provisions.