Germany to ringfence constitutional court against extremist takeover

4 months ago 31

Germany’s government and the centre-right opposition have struck a deal to ringfence the Constitutional Court against blockades and hostile takeovers, amid fears that the far-right could try to undermine the rule of law if it continues to gain ground.

Over the last decade, the hard-right governments of Hungarian Prime Minister Viktor Orbán and the Polish PiS party had worked on eroding the independence of national courts by removing previously appointed judges and packing courts with loyalists.

Concerns that extremist forces in Germany could draw inspiration from this and undermine cornerstones of the rule of law prompted the German government to act.

“We have learned from [our neighbours in Eastern Europe], (…) that, if a majority is not prepared to accept [court] decisions, a court is vulnerable to attacks if legislators can simply change how it works,” Justice Minister Marco Buschmann told journalists on Tuesday (23 July) when presenting the new legislation alongside government and opposition lawmakers.

Konstantin von Notz, a leading Green lawmaker, noted that “in Germany as well, autocratic regimes, far-right extremists, and other democracy despisers attack our democracy every day, systematically.”

While Buschmann and the present lawmakers avoided naming it, the far-right AfD party is likely to pose the most severe threat in that direction in Germany, as it is still flying high in the polls.

The party posted its highest-ever national result in June’s EU elections and is in the lead in the three Eastern German states where regional elections are due in the autumn.

To protect Germany’s highest court, the Bundesverfassungsgericht, against such interference, the coalition government of the centre-left SPD, the liberal FDP, and the Greens, as well as the largest opposition group, the conservative CDU/CSU, agreed to add the courts’ current procedural rules to Germany’s constitution.

This means that a two-thirds majority of lawmakers, rather than a simple majority, would be required to change the court’s status, its size, or judges’ term limits, for example.

Moreover, the parties also plan to protect the court against attempts to block it by refusing to greenlight judges. This was previously possible for parties with just over a third of seats in either one of Germany’s two parliamentary chambers – Bundestag and Bundesrat – each of which appoints half of the Bundesverfassungsgericht’s judges.

New measures would allow either chamber to pass on to the other chamber the right to appoint judges once a three-month deadline for picking an appointee has passed.

Cross-party consensus

The two-thirds majority requirement for changing the constitution, which is needed to implement the plans, made it necessary for the government to work with the opposition.

A first round of negotiations between the government and the CDU/CSU failed to yield any results earlier this year, as the opposition saw no need for added safeguards.

Talks were resumed shortly after, however. Associations of legal professionals and Germany’s President Frank-Walter Steinmeier had urged parties to double down on efforts to protect rule-of-law institutions.