Militant Democracy And Radicals In The West German Civil Service
| Date | 01 September 1983 |
| Author | W. E. Gladstone,G. Brinkmann |
| Published date | 01 September 1983 |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02535.x |
MILITANT DEMOCRACY AND RADICALS
IN
THE WEST GERMAN CIVIL SERVICE
“
It is liberty alone which fits men for liberty.”
(W.
E.
Gladstone)
I.
INTRODUCTION
ALL
democratic states recognise the principle that political parties,
whatever their policies, should enjoy equality of opportunity in the
political process. Another principle is also acknowledged
:
that
democratic governments have the right to prevent individuals whose aim
is to destroy democracy and civil rights from entering the civil service
or to dismiss them if they are already serving in such a capacity. It is
equally valid that, as a rule, civil servants should enjoy the same
fundamental rights as ordinary citizens. These principles, however,
can clash if the individual belongs to an extreme left-wing
or
right-wing
political party or supports radical policies, and either is
a
civil servant or
seeks employment in the civil service.
The conflict between these principles came’
to
the fore through
a
decision of the German Federal Disciplinary Court2-a tribunal dealing
with disciplinary matters concerning civil servants-which confirmed
the dismissal
of
a train driver because of his membership of, and his
activities on behalf of, the German Communist Party (D.K.P.), for
which he had stood several times (unsuccessfully) in elections and in
which he had held party positions. In a further case, the Federal
Administrative Court,3 as,
inter
ah,
the court of appeal against
decisions of the Federal Disciplinary Court, upheld the dismissal of a
postman for similar reasons. In both cases the on-the-job conduct of
the dismissed civil servants was impeccable.
Having determined after lengthy discussion that the aims and
programme of the (Moscow-orientated) Communist Party were
“
hostile to the Constitution
”
(verfassungsfeind[ich),
the courts
considered that their activities on its behalf were a violation
of
their
duty to show political loyalty to the state and its constitution. The duty
to
show loyalty was considered a constitutional principle enjoying
priority over fundamental rights.
For historical reasons a high proportion of those working in the
public sector are categorised as
Beamte,
a term which comprises not
Cf.
for
an earlier account
K.
Dyson,
“
Anticommunism in the Federal Republic
of
Germany: The case
of
Berueverbot
”
(1974-75)
28
Parliamentary
Afuirs
51-67;
R.
Dobbelstein and
C.
Gellert, Shades
of
a
new McCarthyism in West Germany?
A
Political and Legal Analysis
of
the Campaign against Radicals in the West German Civil
Service
”
I19771
Revue de Droit Internarional de Sciences Diplomatiques el Politques
64-76, 81-113.
Bundesdisziplinurgericht
(1980)
27
Recht
im Amt
158-160, 178-180.
8
Bundesverwultungsgericht,
decision
of
October
29,
1981-1
D
50/80;
119821
Neue
Juristfsche
Wochenschrlfr
179.
584
Sept. 19831
WEST
GERMAN CIVIL SERVICE
585
only civil servants in the British sense4 but employees of
Land
and
local governments including the police, public prosecutors, social
workers, teachers, university staff, hospital doctors, and also those
employed by the Federal Railways and the Federal Post Office.
Altogether these constitute roughly
6.3
per cent of the German
work-force.6
The law requires of all
Beamte
that their “whole behaviour must
illustrate attachment to and desire to protect the free democratic
basic order as exemplified in the Basic Law,”O
or
that an applicant for
the civil service
“
shows that he can be depended upon at all times to
uphold the free democratic basic order as exemplified in the Basic
Law.”’ Although this requirement of loyalty had for years been
enshrined in the relevant Acts concerning civil servants and public
employees, its use to exclude so-called radicals or extremists dates
from the late 1960s and early 1970s when the political Left, opting for
the
“
long march through the institutions,’’ began to seek such employ-
ment. To overcome the difficulties involved in interpreting the vague
formula of dependable loyalty and to insure uniform application of the
law throughout the 11
Under
and the Federation, the Minister-
Presidents of the
Lander
and the Federal Chancellor agreed in January
1972 on the following rules: each case had to be decided on its merits;
an applicant for the civil service whose activities were regarded as
“
hostile to the Constitution
”
would be denied employment; member-
ship of a political party or other organisation pursuing aims
“
hostile
to the Constitution
”
constituted sufficient reasons to doubt the
loyalty of the applicant and, as a rule, to justify rejection.8 This agree-
ment became known as the
“
radicals’ decree,” although it did not have
the status
of
a
decree since it did not create new law, but only interpreted
existing law.
The 1972 agreement, however, made applicants aware that
if
they
were refused a job it might be for other reasons than inadequate
qualifications or lack
of
posts available. Because of a shortage of labour
in the early 1970s, in particular of teachers, the authorities could no
longer conceal their true reasons for a refusal-alleged lack of loyalty-
by the pretence that posts were unavailable. They had thus to state the
real reasons. Since a notice rejecting an application for employment as a
Cf.
Wade and Phillips,
Constitutional and Administrative
Law.
(9th ed., 1977), p. 259.
In addition to
Beamte
(who will be referred to as civil servants in this article) there
are
Angestellte
(white collar employees) and
Arbeiter
(blue collar employees) employed
in the public service on the basis
of
a contract
of
employment; the three groups constitute
roughly 17 per cent. of German manpower. Certain functions in the public service are
typically performed by
Beamte
but in many cases the same function could be performed
by white
or
blue collar employees. This article mainly concentrates on
Beamte
since most
cases in which the loyalty
of
an applicant
or
of a person already in employment has been
doubted concerned
Beamte
and since the grounds on which blue
or
white collar employees
were refused were similar to those
of
Beamte.
‘
See para. 7
(1)
Bundesbeamrengeserr:
“
In das Beamtenverhiiltnis darf nur berufen
werden, wer
.
.
.
die Gewehr dafir bietet, dab er jederzeit fir die
freiheitlichedemokratische
Grundordnung im Sinne des Grundgesetzes eintritt
.
.
.
”
See para.
52
(2)
Eundesbeamrmgesetz.
Cf
e.g.
[1972]
Ministerialblartfrir
das
Land Nordrhein- Wesrfolen
342.
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