The Road to the State Constitutional Court

The king’s legal immunity is enshrined in Title II of the 1818 Constitution by § 1: “His person is holy and inviolable”. An essential element of a constitutional form of government is the constitutional limitation of ruling rights. The constitutional rights of the subjects and their guarantee were added. The monarch’s immunity was therefore balanced by the accountability of his ministers in the nineteenth-century Bavarian constitution. By countersigning it, the Minister assumed legal and factual liability.

The legal basis for a constitutional complaint by the estates was § 5 in Title X of the constitution “Von der Gewähr der Verfassung ” (On the guarantee of the constitution). Accordingly, the two chambers of the Assembly of Estates had the right to bring violations of the constitution by ministers or authorities, indeed of “all civil servants”, before the king. The king himself was then entitled to take a decision or it was delegated by him to the State Council or to the Supreme Court of Justice (High Court of Appeal). Initially, there was no dedicated State Constitutional Court or State Court.

In addition, according to § 21 in Title VII of the Constitution of 1818, citizens and municipalities also had the possibility of submitting complaints to the chambers of the Assembly of Estates about violations of their “constitutional rights”. The complaints first reached the Appeals Committee of the respective Chamber and – after a positive examination – took the same channels as a complaint about state officials or ministers. Between 1827 and 1859, only eleven complaints were submitted to the king for a decision by the two chambers. Only one of these complaints by the editor Ernst Zander was in part judged positively by the State Council.

For a charge against a minister or state official, there had to be an intentional “violation of the state constitution”, the procedure was complicated and the terms were not clearly defined. These very important shortcomings were intensively discussed right from the start. In 1831, a bill “concerning the liability of ministers, of other civil servants and authorities” was negotiated for the first time before the Council of State. The draft also provided for the introduction of a corresponding judicial authority – a Constitutional Court. However, it was not implemented until the reform legislation of 1848: On 4 June 1848, a constitutional law on the liability of ministers was passed. The reform process was provisionally concluded on 30 March 1850 by a law establishing a Constitutional Court and regulating the legal proceedings.