Historical development
A historical review of the constitutional provisions concerning the armed forces in Germany reveals that, up until the end of the so-called “Third Reich” in 1945, the head of state was also commander-in-chief of the armed forces.
In 1949, the population in the western part of Germany adopted a new constitution based on the same principles of democracy and the rule of law as those prevailing in other countries of Western Europe and North America. It did not envisage the creation of armed forces. Only a few years later, however, as the East-West conflict deepened, the USA and Britain urged that the young Federal Republic of Germany too should make a military contribution to maintaining freedom in the West. An impassioned debate ensued among the political parties, and in society in general, over the need to reestablish armed forces this would entail. Memories of the involvement of sections of the Wehrmacht in the crimes of the Nazi dictatorship were still very much alive. The mere thought of an army produced anxiety and mistrust. Ultimately, for reasons of foreign policy, the establishment of armed forces became inevitable. There was broad political agreement that the armed forces would require special mechanisms of control if, from the outset, the possibility of any future misuse of power by the military was to be ruled out, and the principle of the primacy of politics guaranteed without reservation.
This fundamental policy decision was put into effect by placing the armed forces, as part of the executive, under the control of a minister accountable to parliament, and by setting up a Defence Committee endowed with special rights otherwise enjoyed only by committees of inquiry. At the time, the parliamentary opposition also demanded that the constitution make provision for a vote of no confidence not only in the Chancellor, as it already did, but also in the Minister of Defence. This demand was rejected by the ruling majority. As a compromise, the two sides agreed to set up the Office of the Parliamentary Commissioner for the Armed Forces as an auxiliary organ of parliament and an additional instrument of parliamentary control.
On 16 March 1956, as one of the new constitutional provisions relating to the armed forces, Article 45b was incorporated into the Basic Law. It describes the mandate and status of the Parliamentary Commissioner for the Armed Forces as follows: “to safeguard basic rights and to assist the Bundestag in exercising parliamentary control over the Armed Forces. Details shall be regulated by a federal law.”
To implement this article of the Basic Law, the Law on the Parliamentary Commissioner for the Armed Forces was promulgated on 27 June 1957. On 3 April 1959, the first Parliamentary Commissioner, Helmut von Grolman, took office. He was followed in office by Hellmuth Guido Heye, Matthias Hoogen, Fritz Rudolf Schultz, Karl Wilhelm Berkhan, Willi Weiskirch and Alfred Biehle. In 1990, an amendment of the Law on the Parliamentary Commissioner for the Armed Forces made it possible for candidates not having served in the armed forces to be elected to this office. In 1995, Claire Marienfeld was the first woman to be elected Parliamentary Commissioner. Dr. Willfried Penner has been the Parliamentary Commissioner since May 2000.
Hence, the Parliamentary Commissioner for the Armed Forces is an institution without precedent in German constitutional history. It was conceived along the lines of the “militie-ombudsman” in Sweden.
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