The SPD, the Greens, the FDP and the CDU/CSU want to protect the Federal Constitutional Court from the AfD. The reason is experiences from Poland and Hungary.
No AfD robes allowed here: the SPD, Greens, FDP and CDU want to protect the Federal Constitutional Court from right-wing extremist influence Photo: Uli Deck/dpa
the Supreme Court must be better protected from the influence of enemies of the constitution. The parliamentary groups of the SPD, the Greens, the FDP and the CDU/CSU agree on this. The Basic Law must be amended accordingly by the end of the year.
The starting point for the discussions was the experience in Hungary and Poland, where the authoritarian governments aligned the respective constitutional court as soon as possible after their election in order to eliminate its independent control. This was possible because in Poland and Hungary the constitutional judges are elected by a simple majority. This means that the government majority could choose the constitutional judges they wanted.
In order to gain a majority in the Constitutional Court as quickly as possible, Hungary lowered the retirement age, forcing many judges to be re-elected quickly. In Poland, the PiS government took a different approach: She blocked the court by ordering it to hear the cases in the order they were received, rather than by relevance.
To avoid at least some of these strategies, The Basic Law must now be amendedSome of the current structural features of the Federal Constitutional Court should be explicitly regulated in the Constitution: the twelve-year term of office for judges, the age limit of 68 years, that there are two senates with a total of sixteen judges, that they cannot be re-elected, that a constitutional judge retains his office until his successor is elected, that judgments of the Constitutional Court are binding and that the court regulates its own procedural rules.
There is a crucial point missing
Even with a majority in the Bundestag, the AfD – or any other extreme party – could not lower the retirement age of judges (as in Hungary) or impose a certain working order on the court (as in Poland).
However, a crucial point is missing: the fact that constitutional judges must be elected by a two-thirds majority must not be included in the Basic Law. With a simple majority in the Bundestag, the AfD could continue to change the Federal Constitutional Court Act so that a simple majority would be sufficient for the election of constitutional judges in the future. The AfD could then use its simple majority to elect half of the constitutional judges itself, without consulting other factions. The Federal Council elects the other half.
The reason for this inconsistency: it is unlikely that the AfD will have an absolute majority in the Bundestag any time soon. It is much more likely that it – possibly together with the Sahra Wagenknecht alliance – will get well over a third of the mandates. Then it would be a blocking minority and could demand that it also be allowed to nominate one or two constitutional judges. The appointment rights for the 16 judge positions are currently divided between the CDU/CSU (6), SPD (6), the Greens (2) and the FDP (2).
Dangerous back door
To reinforce its demands, the AfD could refuse to vote on proposals from other factions. In the long run, this would jeopardize the functioning of the Constitutional Court. In this constellation, it would be tempting to allow the election of constitutional judges by a simple majority, although this was actually avoided.
In fact, the alliance of the four factions does not have to leave this dangerous back door open. Its proposal already offers an effective way to resolve a blockade in the election of judges in the Bundestag. If no successor can be elected within six months after the end of the term of office, the Bundesrat must elect the Bundesrat instead of the Bundestag.
The risk that the AfD will achieve a blocking minority of one third there is considerably smaller: it would not even be enough if the AfD were involved in the government in all eastern German states, including Berlin. In this way, the established parties ensure that they do not have to involve the AfD in the election of constitutional judges, without lowering the requirement of a two-thirds majority.
The compromise as a delicate project
Conversely, the same replacement election mechanism should also apply if the election of constitutional judges in the Bundesrat and not in the Bundestag is blocked. However, that is very unlikely.
Representatives of the four factions presented the agreement at a joint press conference with Justice Minister Marco Buschmann (FDP) on Tuesday. “It’s a good day for constitutional culture in the country,” Buschmann said happily. “Now the rule of law is even better protected against enemies of the constitution,” said right-wing SPD politician Johannes Fechner.
In fact, it was possible to keep the work on the compromise confidential for months. The project was sensitive because the CDU/CSU had already dropped out in February. But party leader Friedrich Merz then encountered so much opposition, including from his own party, that he quickly came back.
The joint bill should now be submitted to the parliamentary groups and then introduced by them in the Bundestag. The amendments to the Basic Law should be adopted by the Bundestag and the Bundesrat by the end of the year. The SPD, the Greens, the FDP and the CDU/CSU have the necessary two-thirds majority. Still.