“The Federal Republic of Germany is a state governed by the rule of law,” is what all politically correct people say when they want to emphasize that the GDR was an “unjust state” or an unjust regime.
But then, in my view, the following happened: With the “accession” of the GDR, a “shift to the right” occurred. This is because the constitutional state of the Federal Republic of Germany has become a state that is always right. In addition to the many “new rights” that the former GDR citizens received on October 3, 1990, the law of the strongest came to the East. And in addition to the many new civil liberties that were given to the “Ossis”, there were also the “New Right” controlled by West German secret services.
Personally, I consider the “Basic Law” to be an excellent constitution overall, as not only human rights and human dignity, equality before the law, the obligation to peace and democratic socialism are contained in the first 28 articles, but also phrases such as “property entails obligations”. The general assumption is that the Basic Law for the Federal Republic of Germany has also been in force in the territory of the German Democratic Republic since October 3, 1990 at midnight. But with all the love for the “Basic Law”, it is not that simple.
GOVERNMENT SAYS GOODBYE TO THE CONSTITUTION
We have seen for over a year now that not only is the “constitutional reality” slipping ever more blatantly into authoritarianism, but also that the mere carrying of the Basic Law at rallies is now punished, sometimes brutally, by law enforcement officers. It is as if someone had brought a banned symbol, such as a PKK flag, to an otherwise peaceful demonstration and thus provided a pretext for police violence.
In view of the massive restrictions on basic rights due to a “pandemic situation of national importance” that has not been scientifically proven, as well as the de facto abolition of the “Basic Law” by the “Infection Protection Act” of November 18, 2020 and April 22, 2021, a legal vacuum has arisen that acutely endangers the existence of the free and democratic basic order. This threat is further exacerbated by the de facto abolition of administrative jurisdiction and the legal undermining of federalism. The call for the creation of a “German Constitution” is getting louder and is more justified today than ever.
HELMUT KOHL FOR THE CONSTITUTION
If we look closely, we have been living without such a constitution since July 18, 1990, if we only refer to the last legal position on this issue. The “Basic Law of May 23, 1949” is considered a “provisional measure”, a kind of replacement, for a German constitution, as it says on the website of the Federal Ministry of the Interior.
That is why, as early as February 11, 1990, as chairman of the German Congress, which we founded on October 7, 1989 in Berlin, the capital of the GDR, and on November 10, 1989 in Bonn-Bad Godesberg, I had proclaimed the Constituent Assembly for the whole of Germany. I did this according to S.H.A.E.F. Law No. 52, Article 1 of September 12, 1944 for Germany within the borders of December 31, 1937, since these were, at least at that time, undisputed under international law. And I did this after a conversation with Chancellor Helmut Kohl, in which he said: “A new constitution will have to be created.”
This was broadcast by ARD and ZDF. The President of the USSR, Mikhail S. Gorbachev, also confirmed to me in two interviews that he had heard from Kohl that a new constitution would be drawn up and that the Soviet Union had offered a peace treaty.
ALLIED SOVEREIGN RIGHTS
But what applies today? On July 17, 1990, I was present at the negotiations in Paris on the “Two Plus Four Treaty” and heard US Secretary of State James Baker inform the FRG and GDR Foreign Ministers Hans-Dietrich Genscher and Markus Meckel that in addition to the repeal of the Constitution of the German Democratic Republic, Article 23 of the Basic Law for the Federal Republic of Germany would also be repealed with effect from July 18, 1990 at midnight.
Strictly speaking – and this is how it has to be done in legal matters, even if people often think that international law is vague – after this point in time no Bundestag, no Volkskammer and no German government was entitled to take any action under state or international law. I asked German Foreign Minister Genscher about this immediately after the meeting with Foreign Minister Baker, but he dismissed it: it was only to be understood symbolically, the united Germany would be completely sovereign.
But this cannot be true for several reasons, because according to the footnotes to the “Two Plus Four Treaty”, not only does the NATO Status of Forces Agreement of 1957 still apply, but also the S.H.A.E.F. laws (the laws of the Allied High Command), which are only considered “suspended”. And this is the case as long as the Federal Republic of Germany does not abandon the path of the separation of powers, the free democratic basic order and federalism. All three conditions for the suspension have no longer been met by the “Infection Protection Act”, in particular by Paragraph 28 b, since April 22, 2021 at the latest, which would allow the Allies to exercise sovereign rights again.
JOINING WHERE?
But: The “Basic Law for the Federal Republic of Germany” was no longer valid. With the deletion of Article 23 of the Basic Law on July 18, 1990 – the aim of which was to ensure that “only” the GDR and not possibly other areas of the old Reich within the borders of December 31, 1937 beyond the Oder-Neisse line would “join” – something that no “citizen of the Reich” could have imagined probably happened by mistake: the scope of the “Basic Law” has been eliminated.
The scope of the law is not specified anywhere else in the “Basic Law”. In the first semester of law, you learn that there is no law without a scope of the law. As I said, it is probably simply due to the clumsiness of the hasty, euphoric reunifiers Kohl and Genscher that they did not take this fact into account. But these are the facts.
Both of them repeatedly reassured me that the united Germany would be sovereign, but my question about the constitution for Germany was suddenly always brushed off with reference to the “Two Plus Four Treaty”. According to Article 43 of the Hague Convention on Land Warfare of 1910, a “Basic Law” is always only a temporary provision and not a constitution. Even if I would certainly like to see one. That is why Article 146 of the Basic Law stipulates that a German constitution must be created in free self-determination.
HELMUT KOHL CAUGHT BY A COAT FLYING BY
As the Federal Republic of Germany expressly based its constitutional sovereignty on the scope of the “Basic Law”, the USA dissolved the Federal Republic of Germany de jure, although not de facto, on July 18, 1990 by deleting Article 23 of the Basic Law.
But what consequences does this have for “German unity”? Chancellor Kohl always denied to me that this was ineffective. But we know how emotionally moved the gentleman always was. Especially about his own role when it came to the point where “the cloak of history” (Dr. Helmut Kohl’s original words) “brushed” him. Helmut Kohl was never interested in the details, but only in the “big picture.” In the “Unification Treaty”, which was published in the Federal Law Gazette on September 28, 1990, it says in Chapter 1, “Effect of Accession”: “With the entry of the German Democratic Republic into the Federal Republic of Germany into force in accordance with Article 23 of the Basic Law on October 3, 1990, the states of Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and Thuringia become states of the Federal Republic of Germany.” And in the “Constitutional Law on the Formation of States in the German Democratic Republic”, published in the Law Gazette of the German Democratic Republic on August 14, 1990, it says under point 1: “With effect from October 14, 1990, the following states are formed in the GDR: Mecklenburg-Western Pomerania by merging the district territories of Neubrandenburg, Rostock and Schwerin…” According to an excerpt from the Basic Law of October 3, 1990, however, Article 23 states: “repealed.”
CONSTITUTIONAL LAW REMOVED FROM THE WORLD
Article 23 of the Basic Law, to which the Unification Treaty refers, did not even exist at the time in question. It was “repealed”. The repealed article specified the scope of the Basic Law, as one can easily see: Article 23 GG: “This Basic Law applies initially in the territories of the states of Baden, Bavaria, Bremen, Greater Berlin, Hamburg, Hesse, Lower Saxony, North Rhine-Westphalia, Rhineland-Palatinate, Schleswig-Holstein, Württemberg-Baden and Württemberg-Hohenzollern.”
My colleague from the “New Forum” also correctly pointed out in his publications that there was an astonishing amount of botching:
“It can be proven that since the deletion of Article 23 old version of the “Basic Law”, this very paragraph no longer existed on August 31, 1990, the day the “Unification Treaty” was signed, since it was deleted on July 17, 1990. Paragraph 1 of the “Unification Treaty” (accession in accordance with Article 23 of the old version of the “GG”) can hardly have been implemented. The “Basic Law”, which itself was never ratified (!) and only became a kind of customary law in the “FRG” through “de facto submission” (cf. Prof. Dr. Carlo Schmid in his speech in the Parliamentary Council on September 8, 1948), cannot, as a “replacement constitution”, dispense with an explicit spatial definition of its area of application (as in the old Article 23). As the highest law, it has to make these fundamental provisions itself! This is currently no longer the case and thus the supposed “FRG” is now only a non-governmental organization.”
SMALL-STATE ACTIVITY AS AN OPTION
One might ask the question: Does the GDR still exist and does its constitution still apply? From a purely legal perspective, probably. This sloppiness, which is so untypical for us Germans, can be partly explained by the fact that the mood in the GDR was no longer so clearly in favor of immediate “unification” after the air had been let out of the boiler and everyone had traveled to the West and let “Wessis” talk them into buying an overpriced used car. So it had to happen quickly. But such blatant legal errors in the most important legal act for us Germans of the 20th century? In our country, the district courts regulate world history with such meticulous precision that even dinosaurs could sue mammals!
In fact, we have not lived too badly with the “Basic Law” for the past 31 years, even if this was an illusion. But we had filled it with life and are now noticing how well it actually worked. So today I say with full conviction: The unity of the motherland and fatherland is not up for discussion, but we finally want to create a constitution that is recognized under international law. Liberal, democratic and self-determined, so that we can finally put the untenable S.H.A.E.F. conditions aside and conclude a peace treaty with all nations involved in the Second World War without reopening old borders and wounds.
ON THE WAY TO THE CONSTITUTION
The German Congress was inactive for over thirty years, until August 29, 2020, when we renewed the proclamation in accordance with Article 146 of the Basic Law to applause at what was to date the largest demonstration in the history of the Federal Republic of Germany. There were many discussions afterwards, including with the initiatives that had been founded in the meantime. Of these, the group “Our Constitution” founded by Ralph Boes and the “Common Good Lobby” run by Marianne Grimmenstein turned out to be the most sensible and realistic, as they can be implemented with a simple declaration of international law on 1871 with appropriate legal preparatory work regarding the above aspects, and without actually having to go back to the Empire or the Hall of Mirrors in Versailles.
There have been two Deutschlandkongress meetings so far in 2021. At the second one last weekend in the old government district of Bonn, all members present unanimously voted in favor of holding a constitutional clarification assembly in the form of a conference of the German Congress: on 23rd May 2025, also in Bonn, in order to then decide on a viable path to the Constituent Assembly in a grassroots democratic manner.