Germany’s establishment political parties have agreed to amend the country’s constitution to stop “extremists” from influencing the federal constitutional court. The parties are acting out of paranoia that a potential future government, led by the anti-globalist Alternative für Deutschland (AfD) party, could change the setup of the constitutional court in its favour.
The AfD, which finished second in the European elections in June and won a 16% vote share, has been rising in popularity due to its relentless criticism of the government’s lax migration policies. Despite AfD’s rising popularity and its projected victories in three state elections in eastern Germany in the autumn, the political establishment has placed a cordon sanitaire around the party and is attempting to delegitimize it. There have been calls for the AfD to be banned for allegedly endangering the democratic order, and it is legally being spied upon by the intelligence services.
Preparing for a possible, but in the near future unlikely scenario in which the AfD would be the sole governing party, the leftist-liberal three-party government and the opposition centre-right CDU/CSU alliance want to make it even more difficult to make any changes to the court.
“This is about our shared responsibility as serious democrats,” Justice Minister Marco Buschmann tweeted, his assertion being that only the mainstream parties could be considered “serious democrats,” not the AfD, which enjoys the support of almost a fifth of the electorate.
Buschmann, a member of the liberal FDP party, and representatives of the social democrats, the Greens, and the CDU/CSU outlined their proposals at a press conference on Tuesday, July 23rd.
Their principal aim is to enshrine the federal constitutional court’s independence and the court’s ground rules in the Constitution, which means a two-thirds parliamentary majority would be required to change them in the future.
The court has two panels of eight judges each, who have a 12-year term and cannot be re-elected. There is an upper age limit of 68 for justices. Half of the judges are elected by the lower house of parliament, the Bundestag, and the other half by the upper house, the Bundesrat, which represents Germany’s sixteen state governments. These rules would all be enshrined in the constitution.
The selection of judges would also be reformed: if a particular judge should be blocked for six months by the Bundestag, then the Bundesrat will be able to vote on the candidate. This would theoretically prevent any party from being able to block a judge indefinitely.
As amendments to the constitution require a two-thirds majority in both the Bundesrat and Bundestag, the government requires the support of the CDU/CSU alliance to make the necessary changes. They aim to get legislation through parliament in the current parliamentary term, which is due to end next year.
As we reported, negotiations between the government parties and the CDU/CSU have been ongoing for several months, with Friedrich Merz, leader of the Christian Democratic Union (CDU), announcing he is in favour of the proposal to ‘protect’ the constitutional court from “extremists.”
Germany’s constitutional court has always existed as a brake on popular democracy. Since it was established in 1949, the Basic Law for the Federal Republic of Germany formed the basis of the West German constitution. It was passed into law with the input and approval of the victorious Allied powers, who wrongly blamed democracy and mass politics for the Nazis’ rise to power. (Contrary to still-popular legend, Hitler was never elected to government but was appointed Chancellor in 1933 by the German establishment.) Its elitist architects insisted that the Basic Law and the constitutional court would prevent anti-democratic parties from seizing power by democratic means. They thus established the idea of ‘defending democracy’ by restraining it—a principle that was later embedded in European institutions.
Buschmann said that the impetus for amending the constitution now was the developments in other countries, like Hungary, Poland, and Israel where, in Buschmann’s words, “constitutional courts can quickly become political targets”—i.e. where democratically elected conservative governments made judicial reforms that European liberal elites disliked.
In its reaction to the proposals, AfD said it is in fact the “unity party,” i.e., the government parties and the CDU/CSU, that the constitutional court should be protected from, because they do “not accept the separation of powers, and in particular the separation of the judiciary and political influence.” AfD criticised the mainstream forces for excluding the party from negotiations about the planned amendments to the constitution.
Conservative publication Tichys Einblick also questioned whether a government that recently banned a right-wing magazine for political purposes can really identify itself as the “guardian” of the constitutional court.
