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The Basic Law is turning 75. But it is vulnerable: a constitutional organ is inadequately protected, say lawyers. So far, the Bundestag has only debated this half-heartedly.
Berlin – The annoying thing about truisms is that they are usually so obviously true. Like this one: You often only realise how important something is when it is no longer there. That is the case with freedom, for example. Or the right to vote. Or human dignity. The Basic Law has regulated for 75 years that the people of Germany are entitled to all of this and more. But who actually says that it will stay that way forever?
75 years of the Basic Law: Debate about weaknesses in the constitution
The question is rhetorical. A few days ago, CDU veteran Wolfgang Bosbach answered it with one word at a panel discussion in Berlin: nobody. “The Basic Law is not God-given,” said Bosbach. And the 91-year-old FDP politician and former Interior Minister Gerhart Baum, who experienced the time before the Basic Law all too well, warned: “The ideology of yesteryear is seeping into society.”
The rule of law can indeed show its teeth. It has ways of defending democracy against Nazi and other extremist ideologies. For example, with the help of state security criminal law against attacks on the free democratic basic order through high treason, treason, espionage or incitement. But there is a particularly sensitive weak point: the Federal Constitutional Court, which monitors compliance with the Basic Law.
Reform called for by the Federal Constitutional Court: “The law could be changed with a simple majority”
“The Federal Constitutional Court is only rudimentarily regulated in the Basic Law,” says Christoph Safferling, Professor of International Law and International Law at the Friedrich-Alexander University Erlangen-Nuremberg. There are historical reasons for this. “In the 1950s and 1960s it first had to earn the position it now holds as the highest federal body.”
The 16 judges are elected by the Bundestag and Bundesrat, where a two-thirds majority is required. Your term is limited. This is regulated in the Federal Constitutional Court Act. Unlike the Basic Law, this could be weakened relatively easily, explains Safferling in an interview IPPEN.MEDIA: “This simple law could be changed with a simple majority in the Bundestag.”
Traffic light and CDU/CSU are discussing – Faeser’s draft law is already available
This means, for example, that an authoritarian government could abolish the two-thirds majority by amending the law and appoint government-loyal judges who would also wave through fatal changes to the constitution. And anyone who wants to do this could already seriously disrupt the Constitutional Court’s functioning. “A political blocking minority could paralyze the court’s ability to work. There is no emergency plan for such a situation,” says lawyer Safferling.
Meanwhile, the Bundestag has been discussing for months how to better protect the Federal Constitutional Court and how to enshrine details of the election of judges and their terms of office in the Basic Law. The timing is no coincidence: in the super election year of 2024, concerns are growing about the rise of extreme political forces in Germany. A draft law from the Federal Ministry of the Interior by Nancy Faeser (SPD) to strengthen the Federal Constitutional Court already exists – but so far it has remained a debate between the traffic light coalition and the CDU/CSU. Changes to the Basic Law require a two-thirds majority in the Bundesrat and the Bundestag, so the Union would have to go along with it.
Concern about the Basic Law – just on the 75th anniversary
Better protection for the Constitutional Court is extremely important, says Safferling: “I think it’s a good idea to enshrine it in the Basic Law.” Since the 1950s, the Federal Constitutional Court has developed a prominent position in the structure of federal bodies. “This can then be expressed in the Basic Law and basic rules on the election, working methods and structure of the court can also be regulated in the constitution.”
Something similar can be heard from the state governments. For example, Berlin’s Senator for Justice Felor Badenberg told our editorial team: “It is to be welcomed that awareness of the vulnerability of the judiciary has grown and efforts have been made to provide more robust self-protection. I very much hope that the consensus of the parties, even during election campaigns, is sufficient to achieve results in this field.” This applies to both the federal and state levels, because the highest guardians of the state constitutions must also be protected from the grasp of authoritarian forces. “Whether and to what extent state constitutions need to be changed in this regard deserves an open discussion,” said Badenberg.
According to surveys, AfD is at 30 percent in Thuringia
The AfD In Thuringia, for example, polls before the state elections there put the AfD at 30 percent. The Higher Administrative Court (OVG) in Münster recently ruled that the Federal Office for the Protection of the Constitution (BfV) can classify the AfD as a suspected right-wing extremist case and monitor it for intelligence purposes. The Office for the Protection of the Constitution had presented the court with thousands of pieces of evidence of the party’s anti-constitutional tendencies.
Security circles assume that the BfV will soon step up and classify the party as “secure right-wing extremist”. If an anti-democratic party were involved in a state government, it would have serious consequences, expert Safferling makes clear: “Participation in government by an anti-constitutional party would actually offer direct opportunities to influence the democratic processes, for example through voting behavior in the Federal Council.”
After AfD ruling: party ban called for again
After the OVG ruling, the Left and Greens in Berlin, among others, called for a ban on the AfD. Something like this has been hotly debated for months. “The party ban process is indeed no walk in the park. For good reason,” says Safferling. The Basic Law sets the hurdles high because: “Parties participate in the political decision-making of the people and should not be able to be banned as a pawn of politics,” says the lawyer. “However, if there is reasonable suspicion that a party wants to destroy the free democratic basic order, then such a process should be initiated.”
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