How can the Federal Constitutional Court be protected from enemies of democracy? Politicians from several parties agree that a change in the law is necessary. The states are already working on a draft.
The federal states want to better protect the independence of the Federal Constitutional Court from enemies of the constitution by amending the Basic Law. This emerges from a joint statement by the chairmen of the Conference of Justice Ministers from Lower Saxony, Bavaria and Hamburg.
The draft law is currently being developed on the basis of preliminary work by North Rhine-Westphalia and in exchange with a former judge at the Federal Constitutional Court.
Working group since the end of 2023
At the end of last year, the Conference of Justice Ministers set up a federal-state working group on a defensive constitutional state under the leadership of Hamburg. The working group’s deliberations include determining the twelve-year term of office and banning the re-election of members of the Federal Constitutional Court.
The justice ministers also want new rules in the event that a blocking minority in the Bundestag could delay or block an election of judges. It is also proposed to make changes to the Federal Constitutional Court Act dependent on the approval of the Federal Council in the future.
“A threat to democracy”
“It is time for us to work together across party lines at the federal and state levels for a strong constitutional state,” said Hamburg’s Justice Senator Anna Gallina (Greens), who coordinates the justice departments of the Greens, SPD, Left and FDP in the Justice Ministers’ Conference.
Bavaria’s Justice Minister Georg Eisenreich (CSU) said on behalf of the Union-run justice departments: “Almost 75 years after the promulgation of the Basic Law, we are currently experiencing developments that pose a danger to our democracy. Enemies of the rule of law and democracy also threaten our free society from within.” The constitutional state must be defensive and, in particular, protect the guardians of the constitution resolutely and consistently.
Lower Saxony’s Justice Minister Kathrin Wahlmann (SPD), chairwoman of the Conference of Justice Ministers, said: “When anti-democrats come to power, the independent judiciary is often their first target. The Federal Constitutional Court, as the highest German court and guardian of the Basic Law, represents the constitutional state in a prominent manner.”
Changes only with Two-thirds majority
Politicians in the traffic light coalition are considering enshrining details of the election and term of office of constitutional judges not just in a simple law, but in the Basic Law. These could then no longer be changed with a simple majority, but only with a two-thirds majority.
This could, for example, prevent judges from being relatively easily removed from office or the role of the Constitutional Court from being changed in the event of a change of government.
In order to change the Basic Law, a two-thirds majority is necessary. The traffic light parties would need the Union for their plans. This ultimately signaled approval.
Debate is gaining attention
The debates, which have long only been conducted in specialist circles, are currently gaining public attention. Recently, for example, Justice Minister Marco Buschmann (FDP) and Federal Chancellor Olaf Scholz (SPD) spoke out in favor of advancing the discussion on strengthening the resilience of the Constitutional Court. An expert discussion paper presented three variants of possible solutions.
The background is also the developments in Hungary and Poland. The authoritarian governments there undermined the independence and control function of the highest courts. In Israel, too, the government wanted to weaken the Constitutional Court.