German Politicians Cede Hard Decisions To Highest Court

GERMANY'S highest court is getting too mixed up in domestic and international politics, lawmakers in Bonn are complaining.

Last month the Constitutional Court ruled on the weighty issue of abortion, overturning a liberal abortion law passed by the parliament in the 1970s. The court is now in the middle of deciding how Germany can use its troops abroad. By fall, it is supposed to rule on the constitutionality of the Maastricht Treaty, possibly deciding the fate of European union.

Political parties are increasingly turning to the court to settle disputes that should be worked out in the Bundestag or to challenge decisions already made in Bonn, analysts say. This trend is being read by some here as a sign that the country's politicians are incapable of addressing some of the most important issues of the day.

"The court has had a much greater political role thrust on it than it should, and a lot of politicians label this a concession of failure," says a diplomat in Bonn.

There is also some concern that the court's findings themselves are politically colored. When political parties continually challenge Bonn decisionmaking in court, people lose respect for the court because it is forced to make political decisions, says Werner Hoyer, secretary-general of the Free Democratic Party, the junior partner in the center-right coalition government.

Karl-Georg Zierlien, spokesman for the Constitutional Court, says the institution is not seeking a political role.

But unlike the United States Supreme Court, which can refuse to hear a case because it is too political, Mr. Zierlien explains that the German court must take each case brought before it. The court's caseload includes instances in which government bodies or political parties challenge each other's decisions. Such cases are by their very nature political, Zierlien says.

FOR instance, when Chancellor Helmut Kohl's own coalition partner, the Free Democrats, challenged the government's decision to allow German troops to fly NATO radar planes over Bosnia-Herzegovina, "political arguments did indeed play a role" in the court's handling of the case, Zierlien says.

In April, the court announced it would allow the troops to remain in the AWACS planes since pulling them out would put the capability of the NATO alliance at risk. This, the court said, is only an interim decision until the court can decide on the actual constitutionality of this case. Other deployments, including the hotly debated topic of German troops in Somalia, also await a court decision.

Lawmakers, meanwhile, are waiting anxiously to see how the court will handle the Maastricht Treaty, easily passed by the parliament but challenged by political parties on the left and right and by individuals.

There is a general feeling in Bonn that the challengers actually have a strong case - that the treaty, by transferring powers to Brussels, goes against the German Constitution, which states that "all authority emanates from the people."

But there is also a general expectation here that the court will not want to be identified as the obstacle to European unity. Legal experts anticipate the court upholding the treaty, though possibly assigning conditions to future Bonn-Brussels relations.

The involvement of the court in German politics is "bad but unavoidable," says Karsten Voigt, a member of the Bundestag for the opposition Social Democrats, which has gone to the court three times to challenge government decisions on troop deployments.

Turning to the court is unavoidable, he says, because of the great social upheaval since the end of the cold war.

"When you have structural change in politics," he explains, it's not always possible to reach consensus. These periods have occurred before, Mr. Voigt says, and then, as now, the court ended up making decisions the politicians could not make.