West German court won't rule on missiles

The West German Constitutional Court has opted for judicial restraint in dealing with legal challenges to NATO missile deployments. The court's recent rejection of its competence in defense issues suggests its likely future direction under the new court president (chief justice), Wolfgang Zeidler. He is the first Social Democrat ever to head the court.

The substance of the court's reasoning in refusing to grant prior injunction against the stationing beginning this month is not surprising. The court stated just before Christmas that defense policy is a political rather than legal question and therefore falls outside the judicial province.

What is surprising is the definitiveness of this judgment and the speed with which it was rendered. In the Federal Republic of Germany's 3 1/2 decades of existence, the court has been flooded with essentially political appeals from parties that have lost their case in the polls and the Bundestag (Parliament). This situation has been reinforced by the provision that ordinary citizens may appeal constitutional issues on principle without requiring - as in the United States - a concrete test case of violation of any purportedly unconstitutional law.

This inclination has also been reinforced by the past willingness of the court to address political questions. The court has pulled back from this tendency since the heyday of conservative appeals against the Social Democratic Ostpolitik toward East Germany a decade ago. But it has frequently ruminated for a long time before declining to rule on policy questions.

In turning down a representative three of 17 appeals for an injunction against the new US missiles, the court's Second Senate ruled that:

* It is up to the chancellor's government to decide what form of parliamentary approval it gets for its foreign and defense policies. (The filers of the suits had argued that the Bundestag must pass appropriate legislation and not just take a simple vote on the missiles.)

* It is up to the chancellor's government to weigh the various risks in defense policy. (The appeals had argued that since the missiles will be the first in Europe in two decades with the ability to hit Soviet territory, they will attract a Soviet attack and therefore endanger the constitutional ''right to life.'')

* The missiles do not ''prepare for aggressive war.'' A ban against such preparation was written into the Constitution to prevent any German repetition of Hitler's military expansion. (The appeals had contended that the Pershing II missiles, because of their roughly 12-minute flight time to the Soviet Union, could be used for a surprise attack on the Soviet Union. Evidence cited for this allegation focused on the Penatgon's concept of a ''decapitation'' blow against the Soviet leadership.)

Appeals about the constitutionality of the missiles that do not involve prior injunctions are still pending. These appeals charge that West Germany improperly surrendered part of its sovereignty in permitting the missiles to be based here under exclusive US control.

The history of this issue is that once NATO decided unanimously in 1979 to station new longer-range missiles in Europe as a counter to new Soviet SS-20s, Washington offered dual control to West Germany and other host countries. Bonn declined, partly because it didn't want a German finger on the trigger to stimulate Russian memories of Hitler's occupation of the Soviet Union.

German legal observers believe the court will follow its latest precedent and declare the sovereignty issue a matter of political rather than legal judgment. Such an inference can be drawn not only from the general trend toward judicial restraint, but also from the elevation this month of Wolfgang Zeidler to the court presidency. He just completed a term as president of the Second Senate and sided with the 8-to-1 majority that rejected injunctions against the missile deployments.

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