Politicians from the traffic light parties are considering making the Federal Constitutional Court more resistant to “enemies of democracy”. By amending the Basic Law, they want to make it more difficult for extreme parties to paralyze the court as a supervisory authority.
Due to concerns about the rise of extreme parties, the traffic light coalition is considering protecting the Federal Constitutional Court more strongly from possible influence. “According to the Basic Law, the Federal Constitutional Court Act can be changed with a simple majority,” said the parliamentary manager of the SPD parliamentary group, Johannes Fechner, to “Welt am Sonntag”. “We should make this a two-thirds majority.”
Essential structures should be included in the Basic Law
The parliamentary managing director of the FDP parliamentary group, Stephan Thomae, said that parliamentarism and the constitutional judiciary must be made more resistant to “enemies of democracy”. To this end, essential structures of the court should be anchored in the Basic Law.
As examples, Thomae cited “the division of the court into two senates, the stipulation of the twelve-year term of office of judges and the stipulation that the court can decide on its own distribution of business and its working methods.” These rules could then only be changed with a two-thirds majority.
Thomae warned that otherwise, with a simple parliamentary majority, the Constitutional Court could be “paralysed as one of the most important controllers of power and guardian of the constitution.” Theoretically, a third Senate could be set up and the distribution of responsibilities changed so that “certain decisions would have to be made in this third Senate.”
Consent from the Union parliamentary group is necessary
For a change to the Basic Law, as Fechner and Thomae have in mind, a two-thirds majority is necessary – the government factions would therefore need the consent of the CDU/CSU.
Fechner now said that in Poland they had seen how quickly a constitutional court could be paralyzed if simple majorities could change the way the court works. “Even supposedly unproblematic changes enable a blockage: for example the requirement to process all applications according to the date of receipt. Or the requirement to provide detailed reasons for all decisions. This can lead to the Constitutional Court no longer being able to repeal unconstitutional laws.”