The Federal Constitutional Court ensures that the Basic Law is adhered to. Because of the rise of extreme parties, the court should now be better protected.
The word Federal Constitutional Court appears 27 times in the Basic Law. For example, in Article 115g: “The constitutional status and the fulfillment of the constitutional tasks of the Federal Constitutional Court and its judges may not be impaired.” However, details such as the number of judges, the two-thirds majority required for their election, the exclusion of re-election and the fact that the court sets its own rules of procedure are not in the Basic Law – but in a separate law: the law on the Federal Constitutional Court. And that is why legal changes are currently being discussed.
The Bundestag can pass or change such laws with a simple majority. For changes to the Basic Law, however, two thirds of the votes must come together.
So if consideration is now being given to writing the existing regulations into the Basic Law, the main aim is to make them “more resistant to change”, as the Bielefeld constitutional lawyer Christoph Gusy puts it. “The Basic Law has so far been very economical when it comes to the Federal Constitutional Court.”
Federal Justice Minister Marco Buschmann emphasized that the court has a very special position as guardian of the constitution. He believes that precautions to protect the court from enemies of the constitution make sense. “Discussions are already being held about how this can be done effectively,” said the FDP politician.
Federal Interior Minister Nancy Faeser (SPD) said: “We have seen in neighboring European countries how authoritarian forces are attacking the independent judiciary, the free press and democratic institutions.” Enemies of democracy are unlikely to gain the influence to put their plans into action. “Our constitutional state must not be allowed to be sabotaged from within.”
Scholz supports increased protection for the Constitutional Court
Chancellor Olaf Scholz has supported the idea of providing the Federal Constitutional Court with greater protection against political interference. “I think it is a good debate that is taking place now,” said the SPD politician at a discussion in Potsdam. He added: “It is right to do these things now.”
Scholz supported the considerations, but at the same time said that he was sure that the majority of citizens obviously disagreed with the extreme right and that they would prevent such efforts. Democratic citizens should not see themselves as the minority. “We are most of them,” said Scholz.
Resilience to unpredictable political developments
Under the heading “More resilience”, the former constitutional judges Gabriele Britz and Michael Eichberger called for changes in the “Frankfurter Allgemeine Zeitung” a few weeks ago: Those structures of the highest German court that are essential for its functionality should be removed from easy access by the legislature. independence and to prevent one-sided occupation are essential. “This corresponds to its position as a constitutional body and strengthens its resilience against imponderable political developments.” The debate has gained momentum in the past few days.
In the “Welt am Sonntag” representatives of the SPD and FDP suggested that structures of the Karlsruhe court should be anchored in the Basic Law and that changes to the Federal Constitutional Court Act should only be made possible with a two-thirds majority. The reason for such considerations are developments in Hungary and under the former PiS government in Poland as well as verbal attacks by the AfD on the Federal Constitutional Court, said Green right-wing politician Helge Limburg to the German Press Agency. “It is clear that we are looking for broad solidarity among the democratic factions on everything.”
Some Union politicians were open to talking about it. The parliamentary group’s legal policy spokesman, Günter Krings, told the dpa that his group was curious to see whether the traffic light coalition “will soon have more concrete proposals here.”
On the other hand, the parliamentary managing director of the CDU/CSU members of the Bundestag, Thorsten Frei (CDU), put the brakes on: “I simply warn against any kind of quick action.” He currently sees no danger that a political force in the Bundestag and certainly not in the Bundesrat could get more than 50 percent. The danger is much greater that a force could obtain a blocking minority of a third of the votes.
What influence does the AfD have?
So far, half of the 16 judges have been elected by the Bundestag and half of the Bundesrat with a two-thirds majority. According to Frei, the process ensures that balanced candidates are elected who do not represent extreme minority positions.
The German Lawyers’ Association spoke out in favor of ensuring that the highest federal and state courts “that radical blocking minorities cannot block the appointment of judges’ positions in the long term.” It is conceivable, for example, that the Federal Council would fill judge positions if the Bundestag cannot fulfill this task over a longer period of time.
The Düsseldorf law professor Johannes Dietlein explained that one should certainly think seriously about the constitutional codification of the basic structure of the court with its two senates, each with eight judges, “also in order to prevent the risk of abusive court packing”. What this means is that politics expands the size of a court and appoints judges who are likely to rule in favor of their own political ideas – as is the case with the US Supreme Court.
Specifically, there is concern in this country that, given poll numbers of 20 to 30 percent, the AfD could gain influence. It is also being discussed whether a third senate could be set up with new judges, which would then decide on important disputes – particularly those involving party politics.
“Resist the beginnings”
Professor Gusy is not surprised that there is now talk of changes. “It turns out that democracies are more vulnerable than we thought for a long time.” It is therefore a matter of taking preventive action – before a party becomes too big. “According to the motto: Defend the beginnings.”
The judiciary is the backbone of a democratic society, emphasized the German Association of Judges. It is therefore important to “take the necessary measures in a timely manner to effectively protect the independence of the courts against attacks by extremists”.
The debate about the Federal Constitutional Court, which according to a recent survey enjoys great trust among the population, is also interesting for the states, said Gusy. He referred, among other things, to Bavaria, where the state parliament recently elected 15 honorary members of the Bavarian Constitutional Court despite reservations – including AfD candidates. The background is a regulation according to which all factions are allowed to nominate candidates and voting takes place in a bloc.