3 ms·

Rulings of the constitutional court have almost no real life consequences. If there is a negative ruling the parliament is given ample time before the unconstit

by chopin 6y ago

Rulings of the constitutional court have almost no real life consequences. If there is a negative ruling the parliament is given ample time before the unconstitutional law must be replaced. If there is any replacement within that time, the same law, formulated differently, is passed.

alborzb 6y ago
so what you're saying is that the court... works?
- gruez 6y ago
  It sounds different than something like the US, where if a law is unconstitutional it's struck down immediately (rather than giving time for the legislature to fix it), and the defendant acquitted (not sure what happens in germany).
  - realityking 6y ago
    It depends on the law. Often the law (usually just the specific provisions found unconstitutional) are immediately struck down. If there are wide decision to be made instead of the the status quo with the unconstitutional law, then the court will give parliament time to make the rules. This is currently the case with the election law where it's considered unconstitutional but there a multiple legal ways to design a legal one. The choice, how the law should look like, was passed back to parliament.
  - afthonos 6y ago
    > where if a law is unconstitutional it's struck down immediately What? Cases take years or decades to make their way through the court system. You might be thinking of the fact that some laws get an injunction on their enforcement until they are ruled on, but that is not mandatory. More important, they are not struck down, only enjoined. And of course if the legislature changes the law, the case becomes moot by the time it reaches the court (this happens semi-regularly, where the court refuses to rule on the constitutionality of a law that is no longer on the books).
    - gruez 6y ago
      >What? Cases take years or decades to make their way through the court system. You might be thinking of the fact that some laws get an injunction on their enforcement until they are ruled on, but that is not mandatory. It's implied that we're talking about what happens after it's decided. We obviously can't talk about the action of the court before it's been decided. What matters is what happens after a decision has been made. The grandparent comment gave me the impression that in germany, after a law has been found to be unconstitutional by the courts, it doesn't get struck down. Instead, it gets sent back to the legislature for revision, while remaining valid in the meantime. >And of course if the legislature changes the law, the case becomes moot by the time it reaches the court (this happens semi-regularly, where the court refuses to rule on the constitutionality of a law that is no longer on the books). I'm not sure what you're trying to say here. Is this supposed to be a flaw? What purpose does it serve to rule on laws that have already been revoked? To throw some shade on the legislative branch? To punish them somehow? Moreover, is this something that doesn't happen in germany?
      - afthonos 6y ago
        I think I did not understand GGP the way you did, leading to me not making sense of your response. And of course it makes perfect sense not to rule on laws that have been repealed. :-)
- ehnto 6y ago
  I think they are saying that if no replacement for Law A is found, Law A just gets re-instated. No reform, making rulings impotent.
chki 6y ago
That's not true at all. The rulings of the German Constitutional Court are extremely important (at the very least compared to almost all other Constitutional Courts in the world) and have very real consequences. Just one example: The recent PSPP Judgement had the potential to end the Euro. It didn't but if the Court had ruled in a slightly different way (which would have been within it's Constitutional Powers) the Bundesbank wouldn't have followed the orders of the ECB anymore which would have had unbelievable consequences for the Eurozone. The fact that the Court tries not to do something like that is because it is also a political actor searching for stability.
- DuskStar 6y ago
  > The fact that the Court tries not to do something like that is because it is also a political actor searching for stability. This sounds to me like someone saying that the Queen of England has the power to dissolve parliament - and just doesn't for political concerns. (Those political concerns being that if she ever exercises that power, it'll be removed) At some point you have to recognize that if you can only use power in ways that don't interfere with another governmental body, that power might not really exist.
  - chki 6y ago
    I can see where you're coming from but this analogy does not hold up. The German Constitutional Court (GCC) does exercise its powers, but it tries not to break anything, therefore it gives the responsible actors some time to change the law/their behavior. Maybe another example: The Court decided that the (specific calculation of the) German property tax was unconstitutional. But if they just declared the whole tax void, this would have been an enormous problem for the state financing. Therefore they decided that the Government had roughly one year to set up a new system that would follow the constitutional requirements as laid out by the Court. This is what the government has done and now the requirements are fulfilled.
    - sadfklsjlkjwt 6y ago
      You originally posted a response to this. > Rulings of the constitutional court have almost no real life consequences. If there is a negative ruling the parliament is given ample time before the unconstitutional law must be replaced. If there is any replacement within that time, the same law, formulated differently, is passed. To say that the court does have power. But your example is an example of exactly what the OP was saying happens!
realityking 6y ago
The process is long and yes, sometimes parliament iterates on laws to bring them into compliance with the constitution (and sometimes those changes get struck down again) but it's patently false to claim that the constitutional court doesn't have consequences. (real life is tough a claim to argue against - what is a real life consequence?) Some consequential decision that come to my mind (without judging whether these were good or bad decision): - they derived the right to privacy (Informationelle Selbstbestimmung) based on other rights. This is now firmly established in the judicial process. - They struck down the law allowing the government to shoot down hijacked planes (no replacement) - Secret paternity test are illegal and hold no value as evidence - mass deployment of automatic number-plate recognition is illegal - they set the barrier for voting machines so high it's de facto impossible to use them - they've struck down the data mention laws multiple times since 2007. The government keeps trying but to this day there's no law in force - struck down the law requiring a cross in every classroom And these are just the bigger ones that made the press. There are a huge amount of cases that narrow down and define things like when apartments can be searched, when people can be wiretapped, what are the rights and responsilties of people living in a civil partnerships (before marriage for everyone was enacted), when and when not it's allowed to use the armed forces abroad and what restrictions on the right to assemble are allowed. The reason you might have this impression are three-fold: - sometimes a law that is unconstitutional can be made constitutional by adding some exceptions. For example a surveillance law might only be unconstitutional because it didn't have adequate measures to protect priests, therapists, lawyers and other professions with certain privileges. The law is then often revised and passes muster. - some ruling a purely procedural. The decision itself is valid but either it didn't come to be in a valid way (e.g. proper parlimentary procedure wasn't maintained) or it exceeded authority (the government acted but it would have to be a law). These are often easily fixed by going through the process again or turning a decree into a law - Lastly, the constitution might just be changed. The Constitutional Court doesn't have any higher authority than the parliament. If the parliament, following proper procedure, changes the constitution a lot of things are possible. This does require a big majority in both parliaments. Note there are some basic principles that can't be changed but they're quite limited.

by chopin 6y ago

alborzb 6y ago

so what you're saying is that the court... works?

gruez 6y ago
It sounds different than something like the US, where if a law is unconstitutional it's struck down immediately (rather than giving time for the legislature to fix it), and the defendant acquitted (not sure what happens in germany).
- realityking 6y ago
  It depends on the law. Often the law (usually just the specific provisions found unconstitutional) are immediately struck down. If there are wide decision to be made instead of the the status quo with the unconstitutional law, then the court will give parliament time to make the rules. This is currently the case with the election law where it's considered unconstitutional but there a multiple legal ways to design a legal one. The choice, how the law should look like, was passed back to parliament.
- afthonos 6y ago
  > where if a law is unconstitutional it's struck down immediately What? Cases take years or decades to make their way through the court system. You might be thinking of the fact that some laws get an injunction on their enforcement until they are ruled on, but that is not mandatory. More important, they are not struck down, only enjoined. And of course if the legislature changes the law, the case becomes moot by the time it reaches the court (this happens semi-regularly, where the court refuses to rule on the constitutionality of a law that is no longer on the books).
  - gruez 6y ago
    >What? Cases take years or decades to make their way through the court system. You might be thinking of the fact that some laws get an injunction on their enforcement until they are ruled on, but that is not mandatory. It's implied that we're talking about what happens after it's decided. We obviously can't talk about the action of the court before it's been decided. What matters is what happens after a decision has been made. The grandparent comment gave me the impression that in germany, after a law has been found to be unconstitutional by the courts, it doesn't get struck down. Instead, it gets sent back to the legislature for revision, while remaining valid in the meantime. >And of course if the legislature changes the law, the case becomes moot by the time it reaches the court (this happens semi-regularly, where the court refuses to rule on the constitutionality of a law that is no longer on the books). I'm not sure what you're trying to say here. Is this supposed to be a flaw? What purpose does it serve to rule on laws that have already been revoked? To throw some shade on the legislative branch? To punish them somehow? Moreover, is this something that doesn't happen in germany?
    - afthonos 6y ago
      I think I did not understand GGP the way you did, leading to me not making sense of your response. And of course it makes perfect sense not to rule on laws that have been repealed. :-)
ehnto 6y ago
I think they are saying that if no replacement for Law A is found, Law A just gets re-instated. No reform, making rulings impotent.

chki 6y ago

That's not true at all. The rulings of the German Constitutional Court are extremely important (at the very least compared to almost all other Constitutional Courts in the world) and have very real consequences. Just one example: The recent PSPP Judgement had the potential to end the Euro. It didn't but if the Court had ruled in a slightly different way (which would have been within it's Constitutional Powers) the Bundesbank wouldn't have followed the orders of the ECB anymore which would have had unbelievable consequences for the Eurozone. The fact that the Court tries not to do something like that is because it is also a political actor searching for stability.

DuskStar 6y ago
> The fact that the Court tries not to do something like that is because it is also a political actor searching for stability. This sounds to me like someone saying that the Queen of England has the power to dissolve parliament - and just doesn't for political concerns. (Those political concerns being that if she ever exercises that power, it'll be removed) At some point you have to recognize that if you can only use power in ways that don't interfere with another governmental body, that power might not really exist.
- chki 6y ago
  I can see where you're coming from but this analogy does not hold up. The German Constitutional Court (GCC) does exercise its powers, but it tries not to break anything, therefore it gives the responsible actors some time to change the law/their behavior. Maybe another example: The Court decided that the (specific calculation of the) German property tax was unconstitutional. But if they just declared the whole tax void, this would have been an enormous problem for the state financing. Therefore they decided that the Government had roughly one year to set up a new system that would follow the constitutional requirements as laid out by the Court. This is what the government has done and now the requirements are fulfilled.
  - sadfklsjlkjwt 6y ago
    You originally posted a response to this. > Rulings of the constitutional court have almost no real life consequences. If there is a negative ruling the parliament is given ample time before the unconstitutional law must be replaced. If there is any replacement within that time, the same law, formulated differently, is passed. To say that the court does have power. But your example is an example of exactly what the OP was saying happens!

realityking 6y ago

The process is long and yes, sometimes parliament iterates on laws to bring them into compliance with the constitution (and sometimes those changes get struck down again) but it's patently false to claim that the constitutional court doesn't have consequences. (real life is tough a claim to argue against - what is a real life consequence?) Some consequential decision that come to my mind (without judging whether these were good or bad decision): - they derived the right to privacy (Informationelle Selbstbestimmung) based on other rights. This is now firmly established in the judicial process. - They struck down the law allowing the government to shoot down hijacked planes (no replacement) - Secret paternity test are illegal and hold no value as evidence - mass deployment of automatic number-plate recognition is illegal - they set the barrier for voting machines so high it's de facto impossible to use them - they've struck down the data mention laws multiple times since 2007. The government keeps trying but to this day there's no law in force - struck down the law requiring a cross in every classroom And these are just the bigger ones that made the press. There are a huge amount of cases that narrow down and define things like when apartments can be searched, when people can be wiretapped, what are the rights and responsilties of people living in a civil partnerships (before marriage for everyone was enacted), when and when not it's allowed to use the armed forces abroad and what restrictions on the right to assemble are allowed. The reason you might have this impression are three-fold: - sometimes a law that is unconstitutional can be made constitutional by adding some exceptions. For example a surveillance law might only be unconstitutional because it didn't have adequate measures to protect priests, therapists, lawyers and other professions with certain privileges. The law is then often revised and passes muster. - some ruling a purely procedural. The decision itself is valid but either it didn't come to be in a valid way (e.g. proper parlimentary procedure wasn't maintained) or it exceeded authority (the government acted but it would have to be a law). These are often easily fixed by going through the process again or turning a decree into a law - Lastly, the constitution might just be changed. The Constitutional Court doesn't have any higher authority than the parliament. If the parliament, following proper procedure, changes the constitution a lot of things are possible. This does require a big majority in both parliaments. Note there are some basic principles that can't be changed but they're quite limited.