Federal Constitutional Court Defines the Power of Parliamentary Minorities in the Constitutionally Established, Parliamentary Investigative Committees

Abstract

The Untersuchungsausschuss-Fall (Parliamentary Committee Case) 2 BvE 2/01, decided by the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court) on 8 April 2002, concerns the so-called right of enquête, a central function of Parliament under the parliamentary system designed by the German Basic Law. The right of enquête, the investigation by Parliament by taking evidence complete with the subpoena powers normally reserved to criminal investigations, has been an integral part of both the Weimar and the Bonn Constitutions. Max Weber, in the era of the Bismarck-Constitution for the German state founded in 1871, made a forceful pitch for the equality of the Parliament and Executive. He argued that members of Parliament needed to be professionals and to have full access to the information that, traditionally, was the source of power of the executive. Instituting committees of investigation with the power to take evidence was the means to do so. In fact, Weber went further, arguing that the right to call for an investigative parliamentary committee needed to be vested in a (qualified) minority of the members of Parliament. There is no equivalent of this specific aspect in the other European parliamentary systems. Article 34 of the Weimar Constitution provided that one fifth of the members of Parliament could ask for the institution of a committee of investigation. The same quorum had the right to move for the hearing of specific evidence by the committee.