The reason for the change in the law does not appear at all in the draft, which is presented jointly by the government factions CSU and Free Voters and the opposition from the Greens and SPD: the fifth faction in the state parliament, the AfD. And their previous opportunity to appoint honorary judges for the Bavarian Constitutional Court. Rather, the draft law only speaks of the “parliamentary reality”, which, according to the current legal situation, could lead to the functionality of the Constitutional Court being put at risk.
This Tuesday, the state parliament is scheduled to discuss the amendment in its first reading. This also makes it clear which path the four factions want to take to keep judges on the AfD ticket out in the future: two electoral lists, one for the government and one for the opposition. And on top of that: more candidates than there are judge jobs available. The failure of AfD proposals if they do not receive a majority in the state parliament is intended to be priced into the law, so to speak.
What is it about? In January, the state parliament regularly determined which 15 volunteer judges (including deputies) would decide on constitutional issues alongside the 22 professional judges at the highest court. It was decided, with the votes of the CSU and FW, to have a total tableau of judges including the AfD’s proposals. Two lawyers with AfD party records, along with two deputies, came to the court, where so-called non-professional judge members are involved in many tribunals. The election caused a lot of attention and also public criticism of the CSU – with accusations of trivializing the AfD and paving the way for it to reach the highest judicial positions in the Free State.
In fact, the CSU and FW found themselves in a dilemma: the plenary session traditionally only involves a vote in a bloc, i.e. on the sending of all the people proposed by all the factions. The corresponding list is based on the nominations of the parliamentary groups, depending on their strength in the state parliament. The CSU and FW waved this list through with their majority in January, although they did not actually support any candidates on the proposal of the partly right-wing extremist AfD.
However, through an individual vote in which the AfD applicants would most likely have failed, the state parliament would only have chosen an incomplete tableau. As a result, the court would not have been formally staffed regularly, its work would have been blocked and its decisions would have been appealable before the Federal Constitutional Court. The Constitutional Court itself and the responsible Ministry of the Interior had warned about this around the voting date.
In January, the Greens and the SPD voted across the board against the entire list of applicants, including their own candidates. However, the CSU and FW saw it as their duty to deliver a complete panel of judges. “A constitutional or legal crisis is really the last thing we need at this time,” said the CSU’s parliamentary director, Michael Hofmann. He had announced then and later in a conversation with the SZ that he was preparing an amendment. Ideally, first the coalition partner, then also the Greens and the SPD should be won over to a joint initiative.
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:CSU wants to block AfD constitutional judges in the future
The state parliament sends candidates to the highest court for constitutional issues, most recently two lawyers at the suggestion of the far-right party. A new law should prevent that. But in practice it’s not that easy.
In Hofmann’s eyes, the guiding principles should be: on the one hand, to guarantee the court’s ability to work. On the other hand: “Extremists, enemies of our democracy and our constitution have no place there.” For example, the Green Party’s parliamentary secretary, Jürgen Mistol, promised cooperation at an early stage: “We have to make our constitutional bodies resilient to the enemies of our constitution.”
In the current draft, the “new, legally secure mode” looks like this: The state parliament is not entitled to influence the nominations of individual factions. This person can only vote for candidates or not vote for them; but ultimately has to create a complete tableau. In the future, there will therefore be two lists of suggestions, one for the government factions and one for all opposition factions. The balance of strength in the state parliament should therefore continue to be reflected in the Court of Justice.
However, the parliamentary groups should provide more nominations than necessary – so that the risk of not electing enough judges is “effectively minimized”. De facto this means: The opposition as a whole must appoint sufficient candidates who are elected by a majority in the plenary session. If the AfD’s proposals fail, other elected candidates from the SPD and the Greens will virtually fill out this list. The fact that the AfD is the strongest force within the opposition does not help it. The procedure is always subject to a parliamentary majority for each individual judge.
Expect a heated debate on Tuesday afternoon. Finally, the AfD had repeatedly emphasized that the current procedure ensured that every faction was represented at the court and that there was therefore no need for reform. Rather, it was said, the AfD was constantly kept away from offices to which it was legitimately entitled, thereby “discrediting” state institutions. The new law could possibly be finally passed by the summer break. However, it is unlikely to come into concrete use until the next regular election of judges, probably at the beginning of the next electoral term in 2028.