Authoritarian governments often try to undermine the independence of supreme courts. As far-right populists gain ground in Germany, the Bundestag has now voted to protect Germany’s Constitutional Court.
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 on Thursday was one of the final acts that Chancellor Olaf Scholz’s ruptured coalition government was able to agree on ahead of February’s election.
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. That means that, if a two-thirds majority can’t be mustered in the Bundestag, for example, the Upper House of Parliament, 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 to the proposal, 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 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 in September.
