Germany moves to protect top court against far right

The German parliament, the Bundestag, on Thursday voted to reinforce the Federal Constitutional Court to protect it from political influence, partly as a safeguard against the growing strength of the Alternative for Germany (AfD). 

The amendment to the law regulating the Constitutional Court presented to the German parliament this week was one of the final acts that Chancellor Olaf Scholz's ruptured coalition government was able to agree on ahead of February's election. The amendment also passed the Bundesrat, the chamber that represents Germany's 16 state governments, on Friday with the necessary two-thirds majority.

Drawn up under the oversight of former Justice Minister Marco Buschmann of the Free Democrats (FDP) with the help of the Social Democrats, the Greens and the opposition conservative bloc of Christian Democratic Union (CDU) and Christian Social Union (CSU), it enshrines structural features of the Constitutional Court in the German constitution, the Basic Law, making them harder to change.

The proposed law will fix the number of judges (16), the judges' terms (12 years), and their maximum age (68). It would also enshrine the court's structure: Two senates of eight judges each, which are subdivided into chambers.

To help guarantee that the court's ability to function can't be jeopardized, the Basic Law will also state that a judge will continue to perform their duties until a successor has been elected. The law also safeguards the autonomy of the court's internal procedures — meaning, among other things, that only the judges themselves can decide in which order they process cases.

In addition, the amendment ensures that "blocking minorities" in either of the two parliamentary chambers — the Bundestag and the Bundesrat — can't hinder the appointment of judges. If a two-thirds majority can't be mustered in the Bundestag, for example, the Bundesrat will have the power to appoint a judge.

Social Democrat Interior Minister Nancy Faeser said that the law was being introduced to ensure that "the enemies of our democracy don't have a gateway" to the judicial system.

"We see when we look at foreign countries, that when autocrats get into power, they almost always turn first against the efficacy and the independence of the judiciary," she said in Thursday's debate. "They gut the rule of law, and the constitutional courts are often their first targets."

The law was passed with votes from the SPD, Greens, CDU/CSU, the FDP, and the socialist Left Party. The AfD's Fabian Jacobi voiced opposition, arguing that it was being imposed by "self-appointed exclusive democrats." "What you're projecting here is an image of the constitutional court as an instrument of power of the party cartel that you are not prepared to let go of," he said, accusing the other parties of refusing to allow the AfD to have a hand in appointing judges to the supreme court.

Sections of the far-right AfD have been deemed a threat to the constitutional order by intelligence agencies. Fears grew in September, when members of the party threatened to use the party's power in the Thuringia state parliament to block the election of the new parliamentary president.

 

Poland's judicial reform crisis sparked action

The lawmakers' minds appear to have been focused by recent controversies in fellow European Union member states Poland and Hungary, and the success of the AfD, currently polling at around 18% nationwide.

Ulrich Karpenstein, vice president of the German Bar Association and one of the country's leading experts in public law, thinks such changes are vital. "The Constitutional Court is not protected from blockades from parliamentary minorities, especially when it comes to selecting judges," he told DW earlier this year. "Nor is it protected against simple majorities in the Bundestag, such as the scenario created by the PiS party in Poland."

"One could carry out so-called 'court-packing' — in other words simply appoint additional judges or create additional chambers with one's own judges, for example," he added. "There are ways to improve this, and in fact the consensus is that there is a need to do something."

But Stefan Martini, senior researcher in public law at Kiel University, thinks that, while the reforms might sound reasonable enough, lawmakers need to exercise some caution. "I would be very careful," he told DW in February. "It certainly does make sense to write some of the rules about the Constitutional Court in the Basic Law, but I would confine it to very fundamental rules."

Martini thinks rules limiting judges' tenures and banning them from being reelected make sense, but said he had "mixed feelings" about forcing two-thirds majorities to select judges. "Because if you do that, then you have to work out how you're going to get around parliamentary blockades," he said. "And there is no perfect solution for that — whether it's another branch of government taking over the responsibility, or a panel of judges, and that would bring less democratic legitimacy."

The recent judicial reform crisis in Poland spurred many lawyers in Germany to look for ways to safeguard the German Constitutional Court. This crisis, which sparked mass protests, began in 2015 when the Polish Law and Justice Party (PiS) was accused of court-packing after it took power. Boasting an absolute majority in the Polish parliament, the nationalist conservative party amended laws governing the Constitutional Tribunal and appointed five new judges to the court.

In 2019, the PiS government also created a new chamber of the Supreme Court, called the Disciplinary Chamber, and changed the law to allow the government to appoint and sack the head of the Supreme Court. The reforms fell foul of the European Court of Justice, which ruled in 2019 that they violated EU law and undermined the independence of the judiciary.

Making laws harder to change not always a good thing, warn analysts

Similar crises have played out elsewhere — reforms carried out by the nationalist Fidesz party in Hungary in 2013 were criticized internationally for weakening the separation of powers between the legislature and the judiciary.

"The Constitutional Court is central for democracy and for the rule-of-law in order to protect fundamental rights, the separation of powers and free elections," said Karpenstein. "Imagine if at the end of a legislative period we had a scenario like with [US President Donald] Trump or [Brazilian President Jair] Bolsonaro — in other words, presidents who don't want to step down saying the election was fraudulent. In such a moment we need a court that decides whether such claims are true."

But Martini warned that making laws harder to change is not always a good thing. "Once an illiberal government is voted out, and a progressive government voted in, for example, they would also need to secure a majority to roll back policies." he said. "And that becomes more difficult if you enshrine certain rules in the constitution."

Karpenstein welcomed the new reform. "The discussions between the CDU and representatives of the coalition have led to important and intelligent proposals that emphasize the independence of the court and protect its judges from political interference," he said.

He added that the proposals effectively ruled out court-packing and other constitutional dangers, but he suggested that in future, the Constitutional Court could be strengthened even more if the Bundesrat was looped into decisions made about new judges and other rules.

"It is important that future changes to the Federal Constitutional Court Act, and in particular the quorums for the election of judges and decisions by the Federal Constitutional Court, can no longer be amended by a simple majority of the Bundestag," said Karpenstein.

This article was first published in February 2024 and updated on July 23, 2024, October 11, 2024, and on December 20, 2024, to reflect the progress of the reform through the legislature.

Edited by: Rina Goldenberg

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