Germany Moves to Protect Top Court Against Far Right

“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 Mot 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 proposals on Tuesday. “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 in a statement.

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.

Ben Knight is a DW reporter. This article was edited by Rina Goldenberg, and it is published courtesy of Deutsche Welle (DW). This article was first published in February 2024 and updated on July 23, 2024, to reflect latest developments.