Independence of the Judiciary - Constitutional Court protects against blockade and influence
The Ampel Coalition factions and the Union have agreed to anchor central provisions regarding the structure of the Federal Constitutional Court in the Basic Law before the federal election. They aim to secure the independence and functionality of the Court even in politically turbulent times, as stated by the Green faction deputy, Konstantin von Notz, during the presentation of the draft bill's fundamental principles on Tuesday. Federal Justice Minister Marco Buschmann (FDP) reminded us of a lesson from the Weimar Republic that "majority rule alone cannot ensure that every majority, under all circumstances, always upholds the Constitution and in particular respects the fundamental rights of the people."
Changes that carry the risk of a blockade or political instrumentalization of the Karlsruhe Court are theoretically possible with a simple majority. However, for a change or amendment of the wording of the Basic Law, a two-thirds majority in the Bundestag and the Bundesrat is required.
Which constitutional provisions should be
The twelve-year tenure of judges, the exclusion of re-election, and the age limit of 68 for judges are proposed to be enshrined in the Constitution. "We prevent, as in Eastern Europe, the creation of new Constitutional Court seats through the establishment of new Senates or the lowering of age limits, which can be filled with cronies," explained Johannes Fechner (SPD). The following should be constitutionally enshrined in the future: the specification of 16 judges and two Senates. To ensure the Court's effectiveness in every case, it is also planned to stipulate in the Constitution that a judge continues to perform their duties until the election of a successor.
The Federal Constitutional Court safeguards the observance of the Basic Law. It determines competencies and limits for state action. It holds particular significance for the enforcement of fundamental rights. To ensure that no one disturbs or ignores these principles in the future, the Ampel Coalition and the Union intend to raise the status of the Court and the binding effect of its decisions to the constitutional level. The same applies to the procedural autonomy, which is the principle that the Federal Constitutional Court regulates its internal matters itself. That may sound trivial, said Andrea Lindholz (CSU), deputy faction leader of the Union, but it concerns, among other things, the concrete and not irrelevant question of which cases are processed in what order.
Opening clause
An opening clause in the Basic Law should also ensure that, in the event of the election of new judges, the other electing organ can intervene if a two-thirds majority for a candidate cannot be achieved in the Bundestag or the Bundesrat over a longer period. However, the principle that the members of the Federal Constitutional Court are each elected half by the Bundestag and half by the Bundesrat should be maintained.
Agreement after eight negotiation sessions
The planned reform is the result of confidential consultations between representatives of the SPD, Green, FDP, and CDU/CSU factions, with the participation of the Federal Ministry of Justice. "The Federal Constitutional Court is a shield for fundamental rights, but its own protection needs more resilience," said Federal Justice Minister Buschmann. It's good that a mechanism has been found to prevent potential blockades in the election of Constitutional Court judges, according to the Union faction's legal advisor, Ansgar Heveling. "Therefore, the Federal Constitutional Court is also equipped for stormy political times."
Why is the reform, from the perspective of the Traffic Light and Union, necessary now?
The anchoring of the court's position in the constitution itself serves to strengthen the independence of constitutional justice, as stated in a joint paper by the four factions. They did not base this necessity on the emergence of new parties such as the AfD and the Alliance 90/The Greens (BSW). Instead, they referred to efforts "in several European countries," which were aimed at or had challenged the independence of the judiciary. Experiences from Poland were also taken into account. In Poland, the now-ousted national-conservative PiS government, which ruled the country from 2015 to 2023, began restructuring the justice system according to its own ideas immediately after taking office.
The German Bar Association and the German Judges' Association (DRB) welcomed the agreement. DRB Managing Director Sven Rebehn said: "The examples from Poland and Hungary have shown in alarming ways how quickly supposedly stable rule of law states can collapse if illiberal forces make it their goal."
Criticism comes from the AfD
The deputy leader of the AfD, Stephan Brandner, said that his faction had made proposals for the resilience of democracy in the German Parliament in the past. That the AfD had been excluded from the work on the planned reform showed "the miserable democratic culture under the traffic light government."
What will happen next
A draft bill could soon be submitted to the German Parliament. The involvement of states, associations, and even the Federal Constitutional Court is planned. The aim is to pass the legislation before the September 2025 federal election.
- The proposed reform aims to secure the independence and functionality of the Federal Constitutional Court in Berlin, even during politically turbulent times.
- To ensure this, the central provisions regarding the structure of the Court are being anchored in Germany's Basic Law before the upcoming Federal Election.
- Konstantin von Notz, a Green faction deputy, emphasized the importance of these changes during the presentation of the draft bill's fundamental principles.
- The twelve-year tenure of judges, the exclusion of re-election, and the age limit of 68 for judges are proposed to be enshrined in the Constitution (Law).
- The Ampel Coalition and the Union aim to raise the status of the Court and the binding effect of its decisions to the constitutional level in Karlsruhe.
- Changes that could lead to a blockade or political instrumentalization of the Court require a two-thirds majority in the Federal Parliament and the Federal Council.
- Marco Buschmann, the Federal Justice Minister from the FDP, highlighted the lesson from the Weimar Republic, reminding us that majority rule alone cannot ensure upholding the Constitution and respecting fundamental rights.
- Johannes Fechner (SPD) explained that these proposed changes aim to prevent the creation of new Constitutional Court seats and filling them with cronies, as seen in some Eastern European countries.
- The agreement on this reform was reached after eight negotiation sessions between representatives from the SPD, Green, FDP, and CDU/CSU factions, with the participation of the Federal Ministry of Justice.
- Criticism of this reform has come from the AfD, with deputy leader Stephan Brandner stating that the AfD's proposals for the resilience of democracy were ignored in this process.
- A draft bill for this reform could soon be submitted to the Federal Parliament, with involvement from states, associations, and even the Federal Constitutional Court planned before the 2025 federal election.
