DEMOCRACY WATCHGermany Moves to Protect Top Court Against Far Right
Several authoritarian governments are trying to curb the clout of their countries’ supreme courts. As far-right populists gain ground in Germany, the government is also working to protect this bastion of democracy.
Germany’s governing coalition wants to strengthen the Federal Constitutional Court to better protect it from political influence, partly as a safeguard against the growing strength of the Alternative for Germany (AfD). Sections of the far-right party have been deemed a threat to the constitutional order by intelligence agencies.
Presenting his reform plans in Berlin on Tuesday, Federal Justice Minister Marco Buschmann of the neoliberal Free Democrats (FDP) was joined by parliamentarians from the center-left Social Democrats and Greens, as well as the main opposition center-right Christian Democrats.
According to the plans jointly hashed out by the parties, the number of judges (16) and the unique term of office of 12 years should be enshrined in the German constitution, the Basic Law. That would mean that any future change to the regulation would require a two-thirds majority in the parliament, the Bundestag, rather than the current simple majority.
Judge selection is also to be reformed: should the selection of a particular judge be blocked for six months by the Bundestag, the other chamber of the German parliament, the Bundesrat, which represents the federal states, will be able to vote on the candidate. This would theoretically prevent any party from being able to block a judge indefinitely.
“The Federal Constitutional Court is a shield for fundamental rights, but its own shield needs to be more resilient,” Buschmann said in a statement. “It was time to close this remarkable discrepancy between the importance of the Federal Constitutional Court on the one hand and its lack of constitutional protection on the other.” The joint proposals presented Tuesday will be turned into a draft law.
The Bundesrat proposed similar reforms earlier this year, designed to anchor the rules governing the Constitutional Court in the German constitution and making it more difficult for future governments to change them.
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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 17% 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.”
