The New German Constitution

by René Brunet

In addition to the powers we have just examined, all of which are expressly provided by the Constitution, there are others which the President possesses because they logically follow from even the practice of a parliamentary régime. Certainly he has the right to demand reports from Ministers and any information from them on the course of affairs. He has the right also to be present at sessions of the Cabinet; and while it is true that he has not the right to vote there, he may come there whenever he pleases and take the chair.[44]

4.—THE RESPONSIBILITY OF THE PRESIDENT.

Responsibility engenders authority and there is no authority without responsibility. Whatever powers a Constitution may give its chief of state, they will rest a dead letter if he cannot personally assume the responsibility for the exercise of these powers. The President of the United States, who is thus held responsible, really governs. In a parliamentary régime the chief of state is not responsible; thence comes its weakness. But the German Constitution desires at once a parliamentary régime and a strong presidency. It must therefore seek a ground for the combination of the two.

(1) Politically the President of the Reich is in theory not responsible. That is to say, that he cannot be overthrown by vote of lack of confidence on the part of the Reichstag. All his acts must be countersigned by a Minister, and it is the latter who takes the responsibility for them and who alone suffers the consequences.

There is, however, a limit to this political irresponsibility of the President. If the conflict between the President and the Reichstag is really irreconcilable he may submit the conflict to the people, who decide. It is recalled to this effect that, according to [Article 42], the Reichstag by a decision taken by a majority of two-thirds may demand of the people a vote on the impeachment of the President. If the people approve, the President ceases his functions; therein operates a kind of political responsibility of the President.

(2) The President of the Reich is criminally responsible. Two hypotheses must be considered:

(a) The President may have committed some crime for which the ordinary penal law prescribes punishment. Can he be prosecuted before ordinary tribunals as an ordinary individual? This question was vigorously debated before the Committee on the Constitution. It was not desired that the President should be absolved from all criminal responsibility. But, on the other hand, it was equally undesirable that he should be placed in the same status as ordinary citizens, because this would give him a position less favorable than that which the Constitution grants members of the Reichstag. It was decided finally that, like the latter, he cannot be criminally prosecuted during the term of his powers, except with the authorization of the Reichstag.

(b) Or the President may be guilty of a violation of the Constitution or a law of the Reich. In this case [Article 59] provides that he may be prosecuted by the Reichstag in the Supreme Judicial Court. The proposal to bring an impeachment must be signed by at least one hundred members and supported by a two-thirds majority. But it must be specified here that this is a matter of legal procedure and that therefore this prosecution can be based only on the violation of a definite provision of the Constitution or of a law. In the case of a simple political divergence of opinion between the Reichstag and the President, only the political responsibility for the matter can be called into the question, and the one way open to the Reichstag is that of an impeachment approved by the people.

What penalty can the Supreme Judicial Court pronounce against the President in case of a verdict of guilty? The Constituent Assembly at first adopted a provision according to which the Court could simply declare the President removed, or to declare him incapable of exercising any public function whatever. Finally, however, it was decided to leave this question to the law organizing the Court of Justice.

But the situation may arise in which an act committed by the President constitutes both an infraction of the penal law as well as a violation of the Constitution. Which shall pass first upon this, the ordinary tribunal or the Supreme Judicial Court? After long hesitation, the Constituent Assembly decided to leave this question also to the future law dealing with the Supreme Judicial Court.