The example of Poland has shown what opportunities there can be to intervene in the justice system, even in a democracy. Is the Federal Constitutional Court sufficiently prepared for such a case?
The traffic light factions and the Union have agreed to anchor key provisions on the structure of the Federal Constitutional Court in the Basic Law before the federal election. In doing so, they say they want to ensure the independence and functionality of the court even in politically turbulent times.
“We must make our democracy defensive and resilient,” said Green Party deputy leader Konstantin von Notz on Tuesday when presenting the outlines of the planned bill. Federal Justice Minister Marco Buschmann (FDP) reminded that one lesson from the Weimar Republic was that “the majority principle alone cannot ensure that every majority always upholds the constitution under all circumstances and, in particular, respects people’s basic rights.”
So far, changes that carry the risk of blocking or politically instrumentalizing the Karlsruhe Court are theoretically possible with a simple majority. In contrast, a two-thirds majority in the Bundestag and the Bundesrat is always required to change or add to the wording of the Basic Law.
Which structural provisions should be included in the Basic Law
The 12-year term of office for judges, the exclusion of re-election and the age limit of 68 years for judges are to be enshrined in the constitution. “We are preventing the creation of new constitutional judge positions that can be filled by favorites by creating new senates or lowering the age limit, as has happened in Eastern Europe,” explained Johannes Fechner (SPD). The constitution is also to enshrine the requirement of 16 judges and two senates. To ensure that the court’s ability to work is not jeopardized in any case, the constitution should also stipulate that a judge must continue to perform his or her duties until a successor is elected.
The Federal Constitutional Court monitors compliance with the Basic Law. It determines responsibilities and limits for the actions of the state. It is particularly important for the enforcement of fundamental rights. To ensure that no one can shake these principles or ignore judgments in the future, the traffic light factions and the Union want to raise the status of the court and the binding effect of its decisions to the level of the constitution. The same applies to the autonomy of rules of procedure, i.e. the principle that the Federal Constitutional Court can regulate its own internal affairs. That may sound banal, said Andrea Lindholz (CSU), deputy parliamentary group leader of the Union, but it also concerns, among other things, the question of the order in which files are processed, which is not irrelevant in the specific case.
Anti-blockage mechanism
An opening clause in the Basic Law is also intended to ensure that the other electoral body can step in when new judges are elected if there is no two-thirds majority for a candidate in the Bundestag or the Bundesrat over a longer period of time. However, the principle that half of the members of the Federal Constitutional Court are elected by the Bundestag and half by the Bundesrat should be maintained.
Agreement after eight consultation sessions
The planned reform is the result of confidential consultations between representatives of the SPD, Greens, FDP and CDU/CSU factions, with the participation of the Federal Ministry of Justice. “The Federal Constitutional Court is a protective shield for fundamental rights, but its own protective shield needs more resilience,” said Justice Minister Buschmann. It is good that a mechanism has been found to prevent any blockages in the election of constitutional judges, says the legal advisor of the Union faction, Ansgar Heveling. “This means that the Federal Constitutional Court is also equipped for stormy political times.”
Why is the reform necessary now from the perspective of the traffic light coalition and the Union?
Anchoring the court’s position in the constitution itself serves to strengthen the independence of the constitutional judiciary, according to a joint paper by the four parliamentary groups. The parliamentarians involved do not justify the need for this with the emergence of new parties such as the AfD and the Sahra Wagenknecht (BSW) alliance. Rather, they point to efforts “in individual European countries” that are or were aimed at questioning the independence of the judiciary. Experiences from Poland, among others, were included in the considerations. In Poland, the now-deposed national conservative PiS government, which led the country from 2015 to 2023, began to restructure the judiciary according to its ideas immediately after taking office.
The German Bar Association and the German Judges Association (DRB) welcomed the agreement. DRB Federal Director Sven Rebehn said: “The examples of Poland and Hungary have shown in an alarming way how quickly even supposedly stable constitutional states can collapse if illiberal forces set their sights on it.”
Criticism comes from the AfD
AfD deputy chairman Stephan Brandner said that his parliamentary group had made its own proposals in the Bundestag in the past on the resilience of democracy. The fact that the AfD had been excluded from working on the planned reform shows “the miserable democratic culture under the traffic light government”.
What to do next
A draft law is likely to be introduced by the Bundestag soon. States, associations and also the Federal Constitutional Court are to be involved in the legislative process. The aim is for it to be passed before the federal election in September 2025.
Source: Stern
I have been working in the news industry for over 6 years, first as a reporter and now as an editor. I have covered politics extensively, and my work has appeared in major newspapers and online news outlets around the world. In addition to my writing, I also contribute regularly to 24 Hours World.
