Germany moves to protect top court against far right

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, and fears grew when members of the AfD threatened to use the party's power in the Thuringia state parliament to block the election of the new parliamentary president in September. 

A draft law drawn up by the three coalition parties and the opposition conservative Christian Democratic Union (CDU) was debated in the German parliament this week, aimed at enshrining certain features of the Constitutional Court in the German constitution, the Basic Law, making them harder to change. Only the AfD voiced any opposition to the proposal, arguing that it was unnecessary.

Among other things, the proposed law would 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. A separate draft law is also being formulated to create alternative paths to electing judges should there be an impasse in the German parliament.

"It is right and proper that we use the means of the law to protect our democracy," Justice Minister Marco Buschmann, of the Free Democratic Party (FDP) said in the debate. "We are not only protecting the Federal Constitutional Court from the theoretical case of simple majorities wanting to attack it, we are also putting forward a mechanism that protects it from destructive blocking minorities."

Earlier this year, the Bundesrat proposed similar reforms designed to anchor the rules governing the Constitutional Court in the German constitution and making it more difficult for future governments to change them.

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 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.

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

Edited by: Rina Goldenberg

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