UThere is widespread agreement among the legal politicians from Ampel and Union about the need to better protect the Federal Constitutional Court. However, the urgency and approach are controversial. The Union broke off initial talks in February. They should now be resumed. As the FAZ learned on Thursday, Federal Justice Minister Marco Buschmann (FDP) has invited people to an appointment next week. It was also announced that there is already a “working draft” in the Ministry of Justice.
The paper, which is available to the FAZ, first refers to the importance of the Constitutional Court. It has now firmly established itself as a “guarantor of the free-democratic order and as an essential constitutional body for the state and society.” The Basic Law has made a “central decision” by granting the court “extensive decision-making powers”. However, as the draft makes clear, the position and structure are largely regulated in the Federal Constitutional Court Act. Like any normal law, it can be changed with a simple majority. However, a two-thirds majority is required to change the Basic Law. This also applies to the reform now being sought – the traffic light is therefore dependent on the votes of the Union.
75 years after the Basic Law came into force, it seems appropriate “to make the elements that shape the status of the Federal Constitutional Court as a constitutional body more clearly visible in the Basic Law itself,” the draft continues. Anchoring it in the constitution also corresponds to the basic consensus to “permanently remove the court from day-to-day political debate.” At the same time, it is about preventing efforts “to question the independence of the constitutional judiciary, as has been observed for some time in individual European countries .”
Protection from the “Third Senate”
In detail, the draft provides for the status of the court as an independent constitutional body to be expressly anchored in Article 93 paragraph 1 of the Basic Law. In the future it could read: “The Federal Constitutional Court is an independent and independent federal court vis-à-vis all other constitutional bodies.” It should also be made clear that public authority is bound to the Karlsruhe decisions and that these have the force of law in certain cases. This applies to judgments on organ dispute proceedings, such as disputes between parliament and the government. Decisions on constitutional complaints also have such an effect if they declare a law to be unconstitutional or void.
“Central structural specifications” should also be included in the Basic Law. This includes the fact that the court consists of two senates. The background is the fear that a government majority could set up a “Third Senate” dominated by it, responsible for disputes between the state organs. The Basic Law should also stipulate that the Senates each have eight judges, half of whom are elected by the Bundesrat and half by the Bundestag. The term of office should also be constitutionally limited to twelve years. The same applies to the age limit, which should remain at 68 years. If a judge reaches this age before the end of twelve years, he or she leaves office earlier. Re-election should also be constitutionally excluded. Judges should not be tempted to let this possibility guide their work.