Alarmed by examples of what happened in Poland and Hungary, German parliamentarians have enacted legislation to protect the country’s Federal Constitutional Court from possible future interference by political authoritarianism or extremists. The new measures were drawn up by the three-party governing coalition that collapsed last month and the centrist conservative opposition.
In what could be one of its closing sessions before it dissolves to pave the way for a February election, the Bundestag, by 600 to 69 votes, threw its weight behind the new legislation which effectively establishes the court’s ground rules in the constitution. The net effect is that in future a two-thirds parliamentary majority would be required to change those rules and not the simple majority that applied.
“We see when we look abroad that, when autocrats come to power, they almost always first turn against the effectiveness and independence of justice,” Interior Minister Nancy Faeser told members of the lower house, naming no countries. Backers of the changed rules cited Poland’s example as a cautionary tale, noting how its former nationalist conservative government had sought to gain control over the country’s Constitutional Tribunal.
Germany’s Federal Constitutional Court, which often serves as the ultimate arbiter over policy, is made up of two panels of eight judges, with each member limited to a single term of 12 years. Thanks to the new legislation, these stipulations will be incorporated into the constitution, along with the upper age limit of 68 for justices and other rules.
The far-right Alternative for Germany (AfD) party, recently registering at up to 20% in polling surveys, maintains that the nation’s mainstream parties have acted solely to ensure their own influence over the court. Half of the Constitutional Court’s justices are elected by the Bundestag – the other half by the parliament’s upper house, which represents Germany’s 16 state governments. Political parties propose the candidates, who require a two-thirds majority in order to be elected as judges. This is to ensure balance and effectively rules out highly polarising figures.
The new measures include a provision to bypass attempts to block a judge’s election by “obstructive minorities”. It enables the Bundestag to elect judges should the upper house fail to do so, or vice versa.
