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Fundamental rights

Gudula Geuther

Gudula Geuther is the legal and domestic policy correspondent for Deutschlandfunk. As a radio correspondent in Karlsruhe, her work previously focused on observing the courts there, especially the Federal Constitutional Court.

Mathias Metzner

Mathias Metzner worked as a research assistant at the Federal Constitutional Court and in the fundamental rights department of the Federal Minister of Justice. He is Vice President of the Kassel Administrative Court.

The GDR's understanding of fundamental rights was based on its own conception of the relationship between people and the state. Thanks to federalism and its involvement in the Council of Europe, the EU and the UN, different legal systems can come into effect in Germany today.

Civil rights in the GDR

For over 60 years the benchmark for the international community and for the work of human rights groups: the General Declaration of Human Rights of 1948 (& copy picture-alliance / dpa)

The various GDR constitutions also contained statements about civil rights. In the GDR constitution of 1949 in particular, a large number of rights were named under the chapter on civil rights, some of which were very similar in their formulation to the basic rights of the Basic Law. However, civil rights in the GDR have hardly achieved the importance that basic rights gained in the Federal Republic of Germany. This is particularly tangible because the GDR constitution itself did not contain any mechanisms that would have guaranteed the enforcement of civil rights as freedom rights vis-à-vis the state. The GDR constitution was based on the principle of unity of power, a separation of powers was rejected as "bourgeois". A "third power" independent of the government was not planned, rather the administration of justice by the courts served to solve the tasks of the socialist state power in shaping the socialist society. Therefore, an independent constitutional and administrative jurisdiction were deliberately not provided for by the GDR constitution. If there were doubts about the constitutionality of legal provisions, the People's Chamber made a decision. The Supreme Court of the GDR performed the task of administering justice, but was responsible and accountable to the People's Chamber.

The reason for this lay in the completely different conception of the relationship between people and the state on which the GDR constitution was based. It is true that basic rights also took precedence according to this constitution, whereby it is already noteworthy that the basic rights of the citizens were always named in it at the same time as the basic rights (which is alien to the Basic Law - with the exception of parental duties). However, the justification for the primacy of fundamental rights was different from that of the Basic Law, which traces fundamental rights back to human dignity. The Basic Law and the human rights guarantees it contains are based on the idea that the state is there for the sake of people and not the other way around. On the other hand, in the GDR constitution, the regulations on basic rights and basic duties were given a special, prominent position because they were intended to make the task of the citizens clear, namely the building of a socialist and communist society. This is particularly clear from the wording of the preamble:
"In continuation of the revolutionary tradition of the German working class and based on the liberation from fascism, the people of the German Democratic Republic realized their right to socio-economic, state and national self-determination in accordance with the processes of the historical development of our epoch and shaped the developed socialist Society.
Filled with the will to freely determine their destinies, undeterred to continue on the path of socialism and communism, peace, democracy and friendship among peoples, the people of the German Democratic Republic have given themselves this socialist constitution. "

The basic rights did not serve the realization of the individual, but the realization of communism; the free development of the individual was intended solely for this collective purpose. Ultimately, the fundamental rights were instrumentalized in order to develop society on its "path of socialism and communism", and they did not serve as individual rights to defend against the state.
That the creators of the GDR constitution and the civil rights contained therein were not concerned with emphasizing the importance of the individual or the existence of pre-state and unalterable rights, but primarily the importance of socialism and communism, for the realization of which the individual can exercise basic rights , can be seen clearly from the following excerpts from the GDR constitution of April 6, 1968 in the version of October 14, 1974:

Article 19, Paragraph 3 of the GDR Constitution
Free from exploitation, oppression and economic dependency, every citizen has equal rights and diverse opportunities to develop his abilities to the fullest and to develop his powers freely for the benefit of society and for his own benefit in the socialist community. In this way he realizes the freedom and dignity of his personality. Citizens' relations are shaped by mutual respect and help, by the principles of socialist morality.

Article 20, Paragraph 3 of the GDR Constitution
Young people are particularly encouraged in their social and professional development. It has every opportunity to participate responsibly in the development of the socialist society.

Article 29 of the GDR Constitution
The citizens of the German Democratic Republic have the right to association in order to realize their interests in accordance with the principles and goals of the constitution through joint action in political parties, social organizations, associations and collectives.

Source text

The adoption of the Basic Law from an East German perspective

The struggle of Bärbel Bohleys and her comrades-in-arms in the East German civil revolution of the autumn of 1989 was based on ideals that ranked high in the Basic Law:
Freedom of the citizen from tutelage and oppression by the state, human dignity, freedom of expression and the rule of law. Nevertheless, many civil rights activists, above all Bärbel Bohley, did not welcome the reunification and accession of the East German states to the Basic Law in 1990.

They saw themselves as citizens of their state and as such demanded political participation. It was not their dissatisfaction with their personal circumstances, but the will to reorganize their community that had driven them to protest - and this community for them was called the GDR, not the Federal Republic.

The political system that Bärbel Bohley envisioned was not provided for in the Basic Law. She wanted a state that would build directly on the commitment of the responsible citizen. She was extremely suspicious of the parties as mediators between citizens and the state:
They should be replaced by open citizens' movements in which political projects and problems can be tackled by all concerned.

[...] In September 1989, Bärbel Bohley, together with the microbiologist Jens Reich, the lawyer Rolf Henrich and others, wrote the appeal "The time is ripe", in which the social change in the GDR was passionately evoked in the face of the massive flight of its citizens .
The "New Forum" emerged from this group, and soon more than 200,000 people across the country committed themselves to it. The success of the New Forum seemed to confirm the political ideas of Bohleys and those of her colleagues: Citizens take their political fate into their own hands and need neither parties nor bureaucracy for it.
The fall of the Berlin Wall on November 9, 1989 soon put an end to this illusion.
The people, whose hour had now struck, seemed from the point of view of civil rights activists not to be interested in the transformation of the GDR. The urge to reunite pushed all their hopes aside. Bärbel Bohley's criticism of this "second turning point" went unheard. [...]

Stephan Detjen (ed.), In best condition ?! 50 Years of the Basic Law, Cologne 1999, page 166 f.

[...] Anyone who, like us East Germans, did not grow into the political world of the Basic Law, or was even born, has to get used to it first. In the old version, the preamble still contained a binding guide: "The unity and freedom of Germany" had to be completed. When the GDR came to an end because of the politics it pursued, this played a very important role. The responsibility of Bonn politics for all Germans, which was also emphatically confirmed by the Federal Constitutional Court, gave the revolution in the GDR a dynamic of its own. Many of the civil rights activists saw it differently at the time. Some regretted how little ties the people in the GDR had to their state - and did not have to have at all because another state, the Federal Republic, showed responsibility towards them. The Basic Law therefore played a role in the transformation process of 1989 and 1990 that should not be overestimated.

[...] In the GDR we were confronted with a completely different understanding of the constitution. The constitution was an expression of the Marxist-Leninist ideology. According to its last version from 1974, it had a clear objective: "In accordance with the processes of the historical development of our epoch", "the people of the German Democratic Republic" was in the process of shaping the "developed socialist society". Otherwise the people no longer appeared in the constitution, at least not in the decisive places. "All political power in the German Democratic Republic is exercised by the working people in town and country", it says rather - an important difference to the corresponding sentence in the Basic Law: "All state authority comes from the people." Incidentally, this formulation was still contained in the first GDR constitution from 1949.

[...] The GDR was a training camp for the modern form of the subjects. We are only just beginning to understand how deep this weaning from the responsible citizen sits in us and how exhausting and sometimes also painful it is to say goodbye. Incapacitation includes reducing one's own perception to what the authorities consider acceptable or just acceptable. This loss of the ability for independent knowledge is then also revealed in the broken retrospect of life in bondage: the state that patronized us at least looked after us. That we would have perished with him had we not at least said goodbye to his "welfare" during the months of the peaceful revolution, many of us see this less and less today.

If you leaf through the last version of the GDR constitution from 1974, you will find that the dense web of lies that dictatorships know how to weave suggested a state that could be seen in its commitment to human rights. [...] In fact, this constitution also states that "postal and telecommunications secrecy is inviolable" and can only be restricted on a legal basis. At no time did this legal basis exist for the comprehensive monitoring of postal traffic and telephone calls - the Stasi Minister Mielke and his men evidently had little interest in the constitution. When reading the text, however, one could get the impression that the GDR had a lot in common with modern democracies. [...]

Joachim Gauck, "Constitutional Understanding in East Germany", in Stephan Detjen (ed.), In best constitution ?! 50 Years of the Basic Law, Cologne 1999, page 214f.