German government, mainstream opposition move to protect highest court against extremist forces

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Germany’s governing coalition and the conservative opposition on Tuesday presented a plan to protect the country’s highest court against possible future manipulation or obstruction by extremist or authoritarian politicians.

Justice Minister Marco Buschmann cited experiences in Poland, Hungary and Israel as illustrating the need to bolster the Federal Constitutional Court. Germany’s own political landscape has become increasingly fragmented in recent years, with the far-right Alternative for Germany party emerging as a significant political force.

The plan put forward by Chancellor Olaf Scholz’s three-party coalition and the mainstream conservative Union bloc, the biggest opposition force, calls for the court’s ground rules to be anchored in the Constitution, which they largely weren’t when the post-World War II German Constitution was drawn up 75 years ago.

That means a two-thirds parliamentary majority would be required to change them in the future, rather than a simple majority. It’s rare for a governing coalition to have that many seats in parliament and unheard of for a single party to be that strong.

Backers of the change pointed to neighboring Poland in particular as a cautionary tale. That country’s nationalist conservative Law and Justice party moved to establish control over the Constitutional Tribunal after it returned to power in 2015.

The Polish government’s overhaul of courts and judicial bodies prompted a yearslong standoff with the European Union. That ended only in recent months after Law and Justice lost power.

Germany’s Federal Constitutional Court, based far from Berlin in the southwestern city of Karlsruhe, is frequently called on to act as the ultimate arbiter over policy.

The court weighed in repeatedly on complaints against bailout plans during the eurozone debt crisis. In recent years, rulings have prompted the government to bring forward the date for reducing greenhouse gas emissions and forced it into a hasty and politically fraught rewrite of this year’s budget. Cases currently pending include an opposition challenge to an electoral reform meant to slim down the increasingly bloated parliament.

The court has two panels of eight judges each, who have a 12-year term and can’t be reelected. Those requirements are to be anchored in the Constitution, as are the upper age limit of 68 for justices and other rules.

Half of the justices are elected by the lower house of parliament, or Bundestag, and the other half by the upper house, which represents Germany’s 16 state governments. Candidates are proposed by political parties and need a two-thirds majority to be elected, which is meant to ensure balance and effectively rules out highly polarizing figures.

Buschmann said the proposed reform also includes a workaround in the case of “obstructive minorities” blocking the election of justices. That would enable the Bundestag to elect judges if the upper house has failed to for three months, or vice versa.

Backers of the change aim to get legislation through parliament in the current parliamentary term, which is due to end next year. A two-thirds majority will be needed for that, which can only be achieved by the coalition and the mainstream opposition joining forces.

Even with the change, the justice minister said there’s no “perfect constitutional order” that rules out every conceivable risk.

“Alongside what we are doing here, another thing remains at least as significant, perhaps much more significant — for serious democrats to ensure they convince so many people that, if possible, there is never an anti-democratic majority or an anti-democratic qualified minority in the German Bundestag,” Buschmann said.