Germany: How to protect the Supreme Court?

German lawyers and politicians are hashing out plans to safeguard the country's highest court from being undermined by potential anti-democratic governments in the future, following controversies in fellow European Union member states Poland and Hungary.

The success of the populist far-right Alternative for Germany (AfD), sections of which have been deemed a threat to the constitutional order by intelligence agencies, appear to have focused minds. The AfD is currently polling at around 20% nationwide.

The Bundesrat, the parliamentary chamber representing Germany's 16 states, already set out a 14-page draft law in early February that seeks to anchor the rules governing the Federal Constitutional Court in the constitution itself, making it more difficult for future governments to change them.

The German constitution, or Basic Law, includes three articles that determine how the Federal Constitutional Court's 16 judges are elected. Currently, half of these are nominated by the Bundestag, the federal parliament, while the other half are nominated by the Bundesrat.

But according to the draft law, there are crucial "gaps" in the Basic Law that threaten the court's independence: Specifically, there is no requirement for a two-thirds majority to appoint new judges, there is no limit on a judge's tenure, and no ban on judges being re-elected. All these rules are only set out in the "Act on the Federal Constitutional Court," a regular law that could be changed by a simple majority in parliament. In other words, an authoritarian government in a future Germany could easily lower the two-thirds threshold, and so appoint government-friendly judges.

Similarly, the Bundesrat's draft law wants to remove the possibility that as few as a third of MPs in the Bundestag could potentially block the appointment of new judges, and thus disable the Constitutional Court entirely.

The Polish warning

Ulrich Karpenstein, vice president of the German Bar Association and one of Germany's leading experts in public law, thinks such changes are vital. "The Constitutional Court is not protected from blockades from parliamentary minorities, especially when it comes to selecting judges," he told DW. "Nor is it protected against simple majorities in the Bundestag, such as the scenario created by the PiS party in Poland."

"One could carry out so-called 'court-packing' — in other words simply appoint additional judges or create additional chambers with one's own judges, for example," he added. "There are ways to improve this, and in fact the consensus is that there is a need to do something."

But Stefan Martini, senior researcher in public law at Kiel University, thinks that, while the reforms might sound reasonable enough, lawmakers need to exercise some caution. "I would be very careful," he told DW. "It certainly does make sense to write some of the rules about the Constitutional Court in the Basic Law, but I would confine it to very fundamental rules."

Martini thinks rules limiting judges' tenures and banning them from being re-elected make sense but said he had "mixed feelings" about forcing two-thirds majorities to select judges. "Because if you do that, then you have to work out how you're going to get around parliamentary blockades," he said. "And there is no perfect solution for that — whether it's another branch of government taking over the responsibility, or a panel of judges, and that would bring less democratic legitimacy."

The recent judicial reform crisis in Poland directly spurred many lawyers in Germany to look for ways to safeguard the German Constitutional Court. This crisis, which sparked mass protests, began in 2015 when the Polish Law and Justice Party (PiS) was accused of court-packing after it took power. Boasting an absolute majority in the Polish parliament, the nationalist conservative party amended laws governing the Constitutional Tribunal and appointed five new judges to the court.

In 2019, the PiS government also created a new chamber of the Supreme Court, called the Disciplinary Chamber, and changed the law to allow the government to appoint and sack the head of the Supreme Court. The reforms fell foul of the European Court of Justice, which ruled in 2019 that they violated EU law and undermined the independence of the judiciary.

Worst-case scenarios

Similar crises have played out elsewhere — reforms carried out by the Fidesz party in Hungary in 2013 were criticized internationally for weakening the separation of powers between the legislature and the judiciary.

"The constitutional court is central for democracy and for the rule-of-law in order to protect fundamental rights, the separation of powers, and free elections," said Karpenstein. "Imagine if at the end of a legislative period we had a scenario like with [US President Donald] Trump or [Brazilian President Jair] Bolsonaro — in other words chancellors or presidents who don't want to step down, saying the election was fraudulent. In such a moment we need a court that decides whether such claims are true."

But Martini warned that making laws harder to change is not always a good thing. "Once an illiberal government is voted out, and a progressive government voted in, for example, they would also need to secure a majority to roll back policies." he said. "And that becomes more difficult if you enshrine certain rules in the constitution."

The reforms proposed by the Bundesrat were first backed by all center-left and center-right parties. However, the talks between Federal Justice Minister Marco Buschmann and the conservative opposition in the Bundestag appear to have hit a snag at the end of February: Martin Plum and Volker Ullrich, lawmakers of Christian Democratic Union (CDU) and the Christian Social Union (CSU), recently wrote in a Frankfurter Allgemeine Zeitung article that, while they were open to the idea of anchoring the Constitutional Court more firmly in the constitution, they want to tie such reforms to changes in basic electoral law. And that would be a whole other constitutional kettle of fish.

Edited by: Rina Goldenberg

While you're here: Every Tuesday, DW editors round up what is happening in German politics and society. You can sign up here for the weekly email newsletter Berlin Briefing.