Understanding the German Federal Constitutional Court
The Federal Constitutional Court is endowed with the Constitution by the Bundestag, the Bundesrat, the Federal Government, and the Federal President. The Constitutional Court is composed of federal judges and other members elected by the Bundestag and the Bundesrat by a majority of 2/3. These members cannot belong to any of these parliaments, the federal government, or related bodies of a Land.
This mandate leads to three judges from each senate of the Court being elected from magistrates belonging to the Federal High Court. The election by parliament gives them greater legitimacy than other judges, paralleling that of government members, while also incorporating politicization due to the ideological affiliation of its members with major parties. This is characteristic of constitutional courts, where political and legal forms are blended.
According to the Basic Law, the Bundestag and the Bundesrat equally elect the 16 judges of the Constitutional Court. While the Bundesrat elects directly, the Bundestag appoints a committee of twelve electors from lists submitted by political parties, who then elect the 8 judges for that country. This limits the power of individual members and prevents the election of any magistrate by small parties. The conflicting partisan election of judges regularly causes friction between major parties, leading to delays in renewal. The 16 judges are elected for a period of 12 years without the possibility of reelection.
The judges are separated into two senates that make up the Court. The President and Vice President of the Tribunal, chosen alternately by the Bundestag and the Bundesrat, govern each senate. While there is an even number in the composition of each senate (8 each), there is no casting vote of the presidency, so decisions must be taken by majority.
The Senate for Fundamental Rights
The first senate, the Senate for Fundamental Rights, is responsible for the rights of individuals, controlling resources linked under Title I of the Basic Law.
The Senate for the Rule of Law
The second senate, the Senate for the Rule of Law, is specifically charged with matters relating to government, military, and conscientious objection proceedings leading to fines and criminal sanctions, conflicts between bodies, prohibition of political parties, and electoral complaints. It is also responsible for the executive defense of the Constitution, i.e., the introduction of material means designed to ensure the survival of the state, its Constitution, and its internal peace. This includes the ban of political parties, the suspension of fundamental rights, prosecution of the accountability of judges, and prosecution of the responsibility of the Federal President.
The activity of the Constitutional Court is very important both for its social consideration and the high number of procedures initiated. As major political controversies in Germany are heard in the Constitutional Court, it is not surprising that between 4 and 5% of the laws are declared wholly or partially unconstitutional.
Political Life: The Electoral System
Members of the Bundestag are elected by universal, direct, free, equal, and secret ballot, and represent the people as a whole, not being tied to mandates or instructions beyond their consciousness. Given that the Bundesrat is elected by the governments of the Länder, and the Federal President is elected by the Federal Assembly, the sole personal representative body in Germany is the Bundestag. The German electoral system is proportional, partially customized to search for a system that combines proportional representation with the stability and decision-making of the majority system.