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National Constitutional provisions – Germany

 

The constitution is the fundamental law of the country, reflecting the underlying and unifying values of society. It spells out the basic rights of each person; it serves as a framework for all other laws and policies, and cannot be easily changed. However, it can be changed and updated through a democratic process, and it is important to keep it alive, by popularising and using it, and by campaigning for its reform or amendment if necessary. Below we have picked out what we see as some of the most relevant articles, but please be encouraged to seek and read your constitution in its entirety.

The state is the central actor in any claim to the right to education: it is the prime duty-bearer and the prime implementer; it is the guarantor; and it is the state´s signature vis-à-vis the international norms and standards which binds it to respect, protect and fulfil the right to education. The state must therefore be judged or challenged on its central text on the right to education, whether this be the constitution, the laws or the policies.

 

The Constitution of Germany 1949 through to 1998, amended 29 July 2009.

 

EDUCATION

 

Article 5

(3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

 

Article 7

 (1) The entire school system shall be under the supervision of the state.

(2) Parents and guardians shall have the right to decide whether children shall receive religious instruction.

(3) Religious instruction shall form part of the regular curriculum in state schools, with the exception of non-denominational schools. Without prejudice to the state’s right of supervision, religious instruction shall be given in accordance with the tenets of the religious community concerned. Teachers may not be obliged against their will to give religious instruction.

(4) The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to state schools shall require the approval of the state and shall be subject to the laws of the Länder. Such approval shall be given when private schools are not inferior to the state schools in terms of their educational aims, their facilities, or the professional training

of their teaching staff, and when segregation of pupils according to the means of their parents will not be encouraged thereby. Approval shall be withheld if the economic and legal position of the teaching staff is not adequately assured.

(5) A private elementary school shall be approved only if the educational authority finds that it serves a special pedagogical interest or if, on the application of parents or guardians, it is to be established as a denominational or interdenominational school or as a school based on a particular philosophy and no state elementary school of that type exists in the municipality.

(6) Preparatory schools shall remain abolished.

 

Article 91 b

 (1) The Federation and the Länder may mutually agree to cooperate in

cases of supraregional importance in the promotion of:

1. research facilities and projects apart from institutions of higher education;

2. scientific projects and research at institutions of higher education;

3. construction of facilities at institutions of higher education, including

large scientific installations.

Agreements under clause 2 of paragraph (1) shall require the consent of all

the Länder.

(2) The Federation and the Länder may mutually agree to cooperate for

the assessment of the performance of educational systems in international

comparison and in drafting relevant reports and recommendations.

(3) The apportionment of costs shall be regulated in the pertinent agreement.

 

CHILD RIGHTS

 

Article 6

(5) Children born outside of marriage shall be provided by legislation with the same opportunities for physical and mental development and for their position in society as are enjoyed by those born within marriage.

 

EQUALITY

 

Article 3

(1) All persons shall be equal before the law. […]

(3) No person shall be favoured or disfavoured because race, language, homeland and origin, faith, or religious. No person shall be disfavoured because of disability.

 

GENDER

 

Article 3

(2) Men and women shall have equal rights. The state actual implementation of equal rights for women and to eliminate disadvantages that now exist.

 

Article 6

(4) Every mother shall be entitled to the protection and care of the community.

 

CITIZENSHIP

 

Article 116

(1) Unless otherwise provided by a law, a German within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the boundaries of 31 December 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person.

(2) Former German citizens who between 30 January 1933 and 8 May 1945 were deprived of their citizenship on political, racial or religious grounds, and their descendants, shall on application have their citizenship restored. They shall be deemed never to have been deprived of their citizenship if they have established their domicile in Germany after 8 May 1945 and have not expressed a contrary intention.

 

RELIGION

Article 4

(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.

(2) The undisturbed practice of religion shall be guaranteed.

 

PARENTS

 

Article 6

(2) The care and upbringing of children is the natural right of parents and

a duty primarily incumbent upon them. The state shall watch over them in

the performance of this duty.