Debate about the Basic Law: Justice Minister Buschmann advocates greater protection for the Federal Constitutional Court

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Federal Justice Minister Buschmann: “We have an obligation to remain vigilant”

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Janine Schmitz / IMAGO / photo library

Federal Justice Minister Marco Buschmann believes that precautions to protect the Federal Constitutional Court from enemies of the constitution make sense. Corresponding proposals are already being discussed, said the FDP politician. “As democrats, we have an obligation to remain vigilant.” This also included consideration of how the Basic Law and its institutions could best be protected from “anti-constitutional influences.” The Federal Constitutional Court, as the guardian of the constitution, has a very special position.

“Discussions are already being held about how this can be done effectively,” said Buschmann. Overall, this requires a carefully conducted, broad-based debate. The diverse ideas that are currently being discussed provide valuable contributions.

Several politicians from the SPD, Greens, Union and FDP have spoken out in favor of changes in the past few days. Among other things, consideration is being given to anchoring the court's structures in the Basic Law, as these could then only be changed with a two-thirds majority.

The parliamentary managing director of the FDP parliamentary group in the Bundestag, Johannes Vogel, told SPIEGEL: "75 years of the Basic Law are a good opportunity to examine whether rules that have proven themselves over the past decades should be given constitutional status." Defensive democracies are characterized by the fact that the mechanisms that protect them from attacks are secure.

»The experiences of our Polish neighbors show how relevant this is. There, political influence was exerted by the PiS party through manipulation of the rules. We should definitely protect our democracy from this,” Vogel continued.

Till Steffen (Greens), member of the Bundestag for Hamburg, also called for talks. »This is not a party or traffic light project. Protecting the Federal Constitutional Court is a concern of all Democrats. We will work for trusting and rapid discussions,” Steffen told SPIEGEL.

It is true that the Basic Law stipulates that the Federal Constitutional Court may not be impaired in its tasks and position. However, details about the number of judges, the two-thirds majority required for their election, the exclusion of re-election and the fact that the court sets its own rules of procedure are not contained in the Basic Law. They can be found in a separate law: the law on the Federal Constitutional Court. And that is why legal changes are currently being discussed.

The Bundestag can pass or change such laws with a simple majority. The hurdles are higher for changes to the Basic Law. If consideration is now given to writing the existing regulations into the Basic Law, the main aim is to make them "more resistant to change," said Bielefeld constitutional lawyer Christoph Gusy. "The Basic Law has so far been very economical when it comes to the Federal Constitutional Court."

Under the heading “More resilience,” the former constitutional judges Gabriele Britz and Michael Eichberger called for changes in the “Frankfurter Allgemeine Zeitung” a few weeks ago: Those structures of the highest German court that are essential for its functionality should be removed from easy access by the legislature. independence and to prevent one-sided occupation are essential. "This corresponds to its position as a constitutional body and strengthens its resistance to imponderable political developments." The debate has gained momentum in the past few days.

In the “Welt am Sonntag” representatives of the SPD and FDP suggested that structures of the Karlsruhe court should be anchored in the Basic Law and that changes to the Federal Constitutional Court Act should only be made possible with a two-thirds majority. Union representatives signaled their willingness to talk. Günter Krings, legal policy spokesman for the Union parliamentary group, said that his group is curious to see whether the traffic light coalition “will soon have more concrete proposals here.”

Specifically, there is concern in this country that, given poll numbers of 20 to 30 percent, the AfD could gain influence. It is also being discussed whether a third senate with new judges could then be set up. This could then decide on important disputes, especially those involving party politics.

The debate about the Federal Constitutional Court, which according to a recent survey enjoys great trust among the population, is also interesting for the states, said constitutional lawyer Gusy. He referred, among other things, to Bavaria, where the state parliament recently elected 15 honorary members of the Bavarian Constitutional Court despite reservations - including AfD candidates. The background is a regulation according to which all factions are allowed to nominate candidates and voting takes place in a bloc.

lpz/sev/sog/dpa