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Hedging against illiberalism: Germany’s discussion to better protect the Constitutional Court against right-wing manipulation

Like in many EU member states, the fear of a further rise of right-wing parties is making the pulse of politics beat nervously also in Germany. A most recent indicator for this are the deliberations on how the democratic system and its institutions can be hedged against the growing influence of right-wing forces. The threat that right-wing parties will attempt to undermine the democratic system as soon as they come to power becomes evident with a look at countries such as Poland under the former PiS government and Hungary under Prime Minister Viktor Orbán. The playbook of the right includes bringing the judicial system and independent media under their control, staffing them with their own people, and weakening these sectors’ independence as well as their competences. In order to prevent such a move, and to ensure the independence of the judiciary in case that right-wing parties come to power, Germany is discussing how to better protect the constitutional court against possible manipulations by right-wing parties in the future. 

 

Federal Justice Minister Marco Buschmann of the Free Democratic Party from the ruling coalition government proposed that the Federal Constitutional Court should be more strongly protected against interference. For this purpose, the current structure of the Constitutional Court should be safeguarded in the German Basic Law (Grundgesetz) to prevent influence being exerted through structural changes. The principles of electing judges by a two-thirds majority and the term of office of 12 years, without the possibility of re-election, designed


to facilitate the independent exercise of office, should be incorporated into the Basic Law as unalterable, according to Buschmann. These principles have not yet been included in Germany’s de-facto constitution and could be changed with a simple parliamentary majority. However, this safeguarding of the Federal Constitutional Court would require an amendment of the Basic Law by a two-third majority in both federal chambers, the Bundestag and the Bundesrat, for which the oppositional Christian Democratic Union would have to give their consent.   

 

The Christian Democrats were initially open to the proposal from the federal government, but cancelled the talks at the end of February, arguing that the Constitutional Court was already sufficiently protected, and that there was no need for a constitutional amendment. It may play a role here that the same Christian Democrats are currently taking the Traffic Light government to court because of a major change of the electoral law. Even though the decision on the Constitutional Court has thus been postponed for the moment, the endeavour to better protect it shows that lessons have been learned from the experiences of other countries in which politically motivated, far-reaching interventions in the judicial system were made. Observers also point at the US where former president Donald Trump has secured a republican majority of jugdes at the Supreme Court for decades to come. In Germany, there is a justified concern of politicians about a further rise of the right-wing, including the possibility of taking over government responsibility, beginning on (regional) state level. It is therefore likely that the debate on the protection of the constitutional court and democratic institutions will come up again after the EU elections and the state elections to be held in eastern Germany in the fall. 


This text was authored by Fabian Appel, Account Manager at Hans Bellstedt Public Affairs (hbpa), Berlin/Germany (fa@hbpa.eu)

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