The Rechtsstaat as the Path Toward Unity in Liberty

PERSPECTIVES In the beginning of the third millenium, Berlin, like so many times in its history, is sparkling with contrasts. Historical allusions and, at the same time, contradictions abound, especially in the city's center. Today's offices and conference rooms of the Freie Demokratiscbe Partei ("F.D.P.") liberal-libertarian members of Parliament and its faction in the Bundestag, for example, are located in the former so-called Ministry of Justice of the Deutsche Demokratische Republik ("GDR"), in a building which, until 1945, was an annex to the German Reich's Ministry of the Interior. As late as the summer of 1989, few people would have envisioned democratically elected representatives of a reunified Germany going about their legislative tasks in the building complex at Dorotheenstrasse 93. Now it has become the site from which those members of Parliament continue to strive for democracy and the Rechtsstaat (rule of law) to make their contribution to reunification. Even so, molding together the two political systems, with their utterly different social and economic organization, in a way that results not only in law but in justice, has been a Herculean task, especially during the first few years following reunification. In the course of four decades, the two legal systems had grown apart considerably. Putting together the two fundamentally different legal systems proved an immensely complex, huge and challenging task. I. THE LEGISLATURE'S ROLE IN THE FRAMEWORK OF THE EVENTS OF 1989-90 A. The Period of Transition. In the transition period toward the end of 1989, the Federal Republic of Germany instituted several expert committees, especially for economic issues, transportation, and postal and telecommunication services, while the Ministry of justice, for the time being, considered it prudent to remain silent. As late as the end of 1989, the judiciary of the GDR had shown no inclination to remove any of their staff. The judiciary had only a few weeks earlier inflicted harsh punishments on GDR citizens for demonstrations and public protests and had-as was eventually discovered-tightly cooperated with the much-hated Ministerium fuer Staatssicherheit, the secret police. Yet neither the attorney general, responsible within the ministry for the field of criminal law, which was heavily misused as a political instrument, the president of the Supreme Court, nor the public prosecutor had been removed from office. Interestingly enough, the latter two were subject to immediate supervision by the Staatsrat (State Council) and the Volkskammer (the "people s's" assembly of representatives), but not the GDR Ministry of Justice. Even though there were hints at self-critique and a willingness for reforms, the GDR was so reluctant that then-Attorney General Hans A. Engelhard considered it unwise to initiate political negotiations. Everybody involved was well aware that improving legal cooperation must be a top priority. On top of this, many former residents of the GDR who had relocated to the Federal Republic after the wall came down wanted and needed to travel to the GDR in order to settle both private and administrative matters. These problems were an issue in the Common Declaration by Chancellor Helmut Kohl and Prime Minister Hans Modrow on December 20, 1989. It was agreed that, in the best interest of the people involved and in order to continue the consultations about legal cooperation and to institute an expert committee for consultations on legal cooperation and relief, legal and administrative cooperation should be instituted in a constructive manner, without bureaucratic hurdles. In order to comply with the Common Declaration, then-Deputy Attorney General Dr. Klaus Kinkel asked the chief official of the permanent representation office of the Federal Republic of Germany with the GDR to inquire with the GDR Ministry of Justice in which manner and especially with whom expert talks might take place. …