Protect the German Federal Constitutional Court!

For a long time, we felt in Germany as though we were in a world of bliss. While the independence of the judiciary was being attacked in Poland, the USA and most recently in Israel, we were blessed with a strong constitutional court. Over the decades, it has proven to be independent and impartial; it has earned immense trust and respect among the public. However, the independence of the Federal Constitutional Court is built on sand.

Now, a public debate has flared up as to whether and how the independence of the Constitutional Court should be protected. A look into other legal systems can contribute to this debate. It shows that it may not be enough to enshrine some aspects of the court’s organization in the Basic Law. Procedural protection for the Act on the Federal Constitutional Court would be an important addition. 

Why more protection?

With a simple majority in the Bundestag, the Constitutional Court could be extensively instrumentalised for party politics. A simple majority was all that was needed both in Poland and the USA for the Polish PiS and the US Republicans to undermine the independence and impartiality of their respective courts. In Poland, some judges were sent into early retirement and new positions for judges were created. The PiS then used a newly enacted election procedure to fill these vacant seats with its own candidates. Likewise, the election procedure was changed unilaterally in the USA. It began with the obstruction of the appointment of federal judges by Senate Republicans, which led to the Democrats lowering the required majority for the election of all federal judges except for the justices of the Supreme Court. In response, the Republicans lowered the required majority for that latter court as well. This enabled them to establish a two-thirds majority of strictly conservative justices on the Supreme Court. Public confidence in the court has now reached a historic low.

Such changes could be replicated in Germany. Article 94 of the Basic Law contains only a few specifications regarding the organisation of the Federal Constitutional Court. Conversely, the number of senates and judges, the term of office or the required electoral majority are not specified in the constitution. Even though they are pillars of the court’s independence and impartiality, they are only regulated by the Federal Constitutional Court Act – which is a normal statute whose amendment does not even require the approval of the Bundesrat (the parliamentary chamber representing the interests of the states on the federal level). A simple majority in the Bundestag would be enough to tear down these pillars.

Therefore, we should protect the Federal Constitutional Court better. A simple parliamentary majority should not be able to distort the court to serve its political purposes lest a government could make itself the sole decider. This would threaten the separation of powers. Developments such as in Poland, Hungary or the USA should be prevented from the outset. Trust in institutions, in their independence and integrity, is destroyed much faster than it can be rebuilt. Poland and the USA also serve as an example in this respect.

Procedural protection of the Court’s organisation

It has been suggested to incorporate more specifications for the organisation and composition of the Court into the Basic Law.¹⁾ In fact, a cross-party working group of representatives of the justice ministries of the states is currently preparing a draft bill, which proposes such measures. Other countries’ constitutions already pursue this approach, such as the Greek constitution, which contains very detailed provisions on the judiciary in Articles 87-100a. In Germany, the number of senates and their size, the twelve-year term of office, the ban on re-election and the two-thirds majority for the election of judges are currently the focus of discussions. These are pillars of the Constitutional Court’s independence and impartiality and many would like to see them protected by the constitution itself.

However, this constitutionalisation of specificities of the Court’s current organisation should be supplemented by procedural protection:²⁾ special requirements should be included in the Basic Law that have to be met in order to amend the statutory provisions for the Court’s organization. The procedural requirement for such amendments could be a qualified majority instead of a simple majority or the approval of the Bundesrat and/or of the plenary of the judges of the Federal Constitutional Court.

French and Spanish law can serve as inspiration: their constitutions establish a type of law – so far unknown to the German Basic Law – called organic laws (loi organique/ley orgánica) or, more loosely translated, laws implementing the constitution. These are laws that can only be amended under stricter conditions. Both legal systems require an absolute parliamentary majority and, in France, a review by the Conseil constitutional before the law is promulgated. These organic laws are prescribed for issues of particular constitutional importance, such as election law, the constitution of the parliamentary chambers and – of particular interest to our discussion – the organisation of the respective constitutional courts (Art. 63 French Constitution; Art. 165 Spanish Constitution).³⁾

On the one hand, these organic laws offer more stability than regular laws. On the other hand, they can be amended more easily than provisions in the constitution. This is important for areas of the law that are particularly sensitive to the constitutional order, but whose detailed regulation would exceed the scope of the constitution.

Extent of procedural protection

Both forms of protection – the constitutionalisation of current features of the Court’s organisation and the procedural protection of the statutory provisions – are interdependent: the stronger the protection against changes to the statute, the narrower the scope of protection should be. Otherwise, reforms of rules that are irrelevant to the independence and impartiality of the court would be unnecessarily difficult.

If, for example, in addition to a simple majority in the Bundestag, only the approval of the Bundesrat and/or the plenary of the judges of the Federal Constitutional Court is required, the procedural protection could be extended to all questions of the court’s organisation and procedure. If, on the other hand, a 60 % or even a two-thirds majority is required for amendments, then the protection should be limited to core areas. The following rules are obvious candidates for such strong procedural protection: the provisions on the election of judges, the status of the judiciary – including incompatibilities of offices, remuneration and term of office or maximum age limit –, the functioning and (self-)administration of the court – including the allocation of cases, case management and the organisation and composition of the panels – as well as fundamental procedural issues and the competences of the court.

Interplay with protection through constitutionalisation

The advantages of procedural protection are evident: a ruling party or governing coalition could no longer decide unilaterally on changes to the organisation and procedure of the Constitutional Court simply because it controls a majority in the Bundestag. However, a reorganisation of the court’s organisation and procedure remains possible if the government and opposition agree on changes. The need for a cross-party consensus is intended to ensure that changes by the legislature do not serve party politics. The organisation of the court, which has proven itself over decades, should not be changed by one political force alone – no matter whether moderate or extreme.

The procedural protection can also compensate for certain weaknesses of the proposed constitutionalisation. Constitutional provisions are generally kept lean in order to not restrict the leeway for future parliaments unnecessarily. This principle should also be followed in relation to the intended specifications for the Court’s organization. Such restrained rules, however, harbour risks. Their purpose can be undermined by statutory regulation on those details, that are not included in the constitution.

Here, too, Poland serves as an example. Articles 173-197 of the Polish constitution contain relatively extensive requirements for the court system. Clearly, they have not been able to protect the courts from attacks on their independence. For example, Art. 187 stipulates that the National Council of the Judiciary, which proposes most judges for appointment, should include 15 judges. However, the constitution does not specify how these judges are to be elected. The PiS government used this loophole to provide for an election by parliament instead of the previously required election by the judiciary. A previously relatively apolitical body was consumed by party politics.

Procedural protection can partially compensate for this weakness. Both approaches – procedural protection and constitutionalisation – complement each other. Protecting the Federal Constitutional Court Act from changes by a simple majority makes it more difficult to undermine constitutional rules through detailed provisions in statutory law. This sort of protection would allow the legislator to provide detailed regulation in the Federal Constitutional Court Act without exposing them to the risk of being altered too easily.

The higher the hurdle for amending statutory law, the lower the need for constitutionalisation. With strong procedural protection, the specifications in the constitution can be kept to a minimum. This maintains sufficient leeway for future parliaments and avoids unnecessarily extensive provisions in the Basic Law.

Minority obstruction and possible solutions

There is an obvious downside: The higher the majority requirements, the easier for a minority to block the decision process. Political minorities could jeopardise the functioning of the court by preventing necessary reforms or blocking the election of judges.

Obstructing the election of judges to the Constitutional Court is particularly problematic. If a two-thirds majority is required for the election of judges and if this requirement itself can only be amended by a qualified majority, then a minority could permanently block the appointment of judges. We need a solution for such a deadlock. It must not only guarantee the functionality of the Federal Constitutional Court, but also ensure the democratic legitimisation of the elected judges.

Since Bundestag and Bundesrat each elect half of the members of the Federal Constitutional Court, it would be possible to switch to the other chamber if there is a blocking minority in the chamber that is initially called upon. A deadlock looms in case of a blocking minority in both electoral bodies. At this stage, the judiciary could be involved as a fallback solution – for example in the form of an election by the judges of the federal courts. This would still confer a democratic legitimisation, albeit an indirect one, because the federal judges are in turn elected by the committee for the selection of judges under Article 95(2) of the Basic Law, i.e. by representatives of the federal government, state governments and the Bundestag.

Other legal systems adopt similar approaches. Numerous European countries give bodies of judicial self-governance a decisive role in the election process. Admittedly, there is criticism that this inclusion does not eliminate political instrumentalization, but merely shifts it to another body. In Poland, appointing PiS party members to the National Council of the Judiciary was a pivotal step in the so-called “judicial reforms”. Therefore, if the judiciary is to be included in the election of judges of the Federal Constitutional Court, it should be borne in mind that the selection of the judges who are allowed to take part in that election can also be a gateway for political instrumentalisation. Involving all federal judges in the election could avoid or at least reduce that risk.

Qualified majority as a safeguard of a balanced court

So far, the two-thirds majority for the election of members of the Federal Constitutional Court has stood the test of time. We can only hope that the legislator will find a convincing solution to the risk of deadlocks. The two-thirds majority has indeed made a decisive contribution to the functioning of the Constitutional Court, because it sets incentives to elect more moderate judges and ensures a balanced composition of the court. Measures to protect the Constitutional Court should aim to ensure that this also remains the case in the future: Impartiality through a balanced presence of moderate candidates from all parties who are firmly committed to the constitution.

There is a warning attached: anyone who deploys organisational rules to specifically keep candidates of certain political parties out of courts runs the risk that the supposed protective measures backfire. They could then easily be instrumentalised to stir up public opposition and justify further attacks on the judiciary. Again, this dynamic was demonstrated by Poland and the USA.

This is an English update of the German version published on 7 February 2024.