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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Ban on Political Parties

Justin O Frosini, Sara Pennicino

Subject(s):
Electoral rules and regulations — Regulation of political parties — Status of political parties

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition

1.  A ‘ban of political parties’ is one of the ways constitutions have regulated political parties after the Second World War. In these cases, the constitution ‘explicitly sanctions (political parties’) role in democratic politics and delineates the ‘acceptable’ ideological space for their competition’ (Skach 875; political parties or fractions in legislative body; right to form political parties).

2.  This, however, is only one possible approach that constitutions can take toward political parties and defining the so-called ‘party space.’ From a historical perspective, the relationship between the State and political parties can be divided into four phases: opposition; indifference; legitimisation, and incorporation. This evolution reflects the idea that political parties moved from being a strictly private association, during the early period of the liberal state, to becoming publicly relevant after the First World War. For this reason, the concept of a political ban may overlap with inherent rights—such as freedom of association with political aims, and with freedom of expression—or it can result from the statutory regulation of elections (election campaigning, access to the media, public funding, the administration of elections, electoral systems, and forms of government).

3.  The concept of banning political parties is traditionally considered part of the doctrine of ‘defensive democracy.’ This may also be referred to as ‘fighting democracy,’ militant democracy or ‘democracy capable of defending itself’ (démocratie apte à se defender, as it is referred to in the case law of the European Court of Human Rights (ECtHR)). All of these derive from the German expression ‘Wehrhafte Demokratie’ or ‘Streitbare Demokratie.’ The latter term was first used in the mid-1930s by Karl Loewenstein, a German political scientist who fled Europe at a time when authoritarian movements were contesting elections in order to abolish or at least decisively weaken liberal democracies in neighbouring countries (authoritarianism). Once they had gained power, these movements then adopted other legal systems; however, to this day, ‘there is no general legal or, for that matter, proper normative theory of militant democracy’ (Müller 1253–54). For this reason, the cases analysed herein will be based on the original idea of militant democracy as elaborated by the Federal Constitutional Court of the then-West Germany in the early 1950s, according to which the Constitution is to favour a set of values that must be defended from attack. In fact, an ample comparative perspective shows that constitutionally entrenched bans on political parties generally trace back to post-Second World War Germany, despite the fact that recent global trends offer multiple hybrid solutions that have built on the archetype represented by Art. 21 of the German Basic Law (Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012) (Ger)).

B.  Alternatives to Banning Political Parties

4.  According to Downs (Downs 32–33), considering that a legal system needs to defend a ‘set of values’ from the possible attacks of political actors, there are alternative policy strategies to a constitutionally mandated ban on political parties. The first solution is what he refers to as ‘ostrich-like’ policy. This is demonstrated by the approach taken by the United Kingdom towards the British National Party (‘BNP’) and that of Sweden with respect to the Sweden Democrats. In the British case, this ‘ostrich-like’ policy has worked and electoral results show the limited impact of the undesirable political discourse pursued by the BNP. However, in the Swedish case, this approach seems to have backfired because the Sweden Democrats won the 2015 elections.

5.  The second alternative to a ban is to ‘alter the rules of the game.’ This is most evident in the design of electoral systems. For example, the introduction of electoral thresholds may result in a de facto ban on certain types of political party. In Germany, since the 1950s, the Sperrklausel has prevented all but the five biggest parties (the CDU/CSU, SPD, Green Party, FDP, and the Left) from entering the Bundestag. The same can be said for the rules on the selection of candidates (political candidates and campaigns), especially in presidential systems, where this is usually connected to a ban on political parties representing ethnic and linguistic minorities. In a 1994 ruling by the Saxony-Anhalt’s electoral commission, the Republikaner party was excluded from the electoral competition due to the undemocratic way candidates were selected (ie through a secret convention). Another good example is that of Argentina, where every party or alliance is required to choose its candidates for federal election through simultaneous primaries open to all voters, and rendered compulsory for all those between the ages of 18 and 69 (Law 26.571, ‘Democratization of political representation, transparency and electoral equity’ (Arg)). Moreover, still in Argentina, should a political party fail to conduct internal elections for a period of four years, it can be disbanded on the basis of Art. 50, letter a) of the Ley Organica de Los Partidos Politicos (Law 23.298 (Arg)).

6.  Of course a distinction must be drawn between permanent and temporary measures—ie, between dissolution and disqualification. For example, Israel does not provide for a ban on political parties, but allows for the elections committee to disqualify a list of candidates from an election without imposing the dissolution of the relevant party. This arrangement is the result of an extensive interpretation by the Israeli Supreme Court, which upgraded the elections committee’s power of scrutiny from purely formal (as provided for in the Knesset Elections Law, consolidated version of 1969) to substantive (based on the party’s platform, its aims, and deeds). However, altering the rules of the game may also refer to placing legal restrictions on aspects of the internal organization of political parties and their ideology. For instance, the law may forbid the use of party names resembling parties of the past, as in the cases of Lithuania and Latvia, where Communist parties are illegal (Communism); in other cases, certain symbols could be outlawed (Art. 51, para. 3, Constitution of the Republic of Lithuania: 25 October 1992 (as Amended to 25 May 2006) (Lith); and Art. 223, para. 2, lett. e) of the Constitution of Portugal), as well as specific anthems and slogans. Limiting the public manifestation of a particular ideology may also be implemented under given conditions; for example, a 2005 German law made it a crime to ‘celebrate, approve or justify’ historical Nazi rule if this disturbs ‘public peace and violates the dignity of the victims,’ as in the case of the German National Democratic Party’s demonstration for the 60th anniversary of the end of Second World War in front of Brandenburg Gate on 8 May.

7.  More generally, limitations on freedom of speech may be applied to political parties in order to restrain their ideological space in public debate. For example, the French 1990 Gayssot Act, which provides that ‘any discrimination founded upon membership or non-membership of an ethnic group, a nation, a race or a religion is prohibited’ (discrimination), has been used to curb Holocaust denial speech presented by the Front National. Furthermore, the Czech Republic’s Criminal Code prohibits associations intended to suppress human rights and freedoms (Arts 403–04), the denial, questioning or apology of genocide (Nazi, Communist, or other) (Art. 405), the defamation of a nation, race, and ethnic or other group (Art. 355), and the incitement of hatred towards a particular group or the restriction of their rights and freedoms (Art. 356). This code also sanctions those who declare national, racial, religious or class hatred, or hatred against another group of persons, with imprisonment from one to five years. Similar limitations have likewise been argued regarding freedom of assembly, as well as specific requirements for financial transparency (eg, Albania; Ukraine); it should be noted, however, that statutory requirements for political parties to report their finances are almost universally adopted. Scores of post-Second World War constitutions contain provisions that bind the internal rules of political parties to constitutionally entrenched principles (eg, Art. 21(1) Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012) (Ger); Art. 10.2 and Art. 51(1) of the Constitution of Portuguese Republic: 2 April 1976 (as Amended to 24 July 2004) (Port); Art. 49 of the Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012) (It); Art. 6 of the Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011) (Spain)); these are evidently connected but still distinct from provisions that ban political parties on the basis of specific values (Art. 21 para. 2, Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012) (Ger)), be it for general constitutionality or if they readopt the values of a specific historical political party (Final Provision XII, Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012) (It)); Art. 13 of the Constitution of the Republic of Poland: 2 April 1997 (Pol); and Art. 46 para. 4 of the Constitution of Portuguese Republic: 2 April 1976 (as Amended to 24 July 2004) (Port)). A constitutionally entrenched ban is in fact the third policy strategy that a country can adopt to defend its democratic principles (Constitution of the Republic of Albania: 21 October 1998 (as Amended to 18 September 2012) (Alb), Art. 9; Constitution of the Czech Republic: 16 December 1992 (as Amended to 24 November 2002) (Czech), Arts 5 and 87; Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) (Turk), Arts 68 and 69; Constitution of Romania: 21 November 1991 (as Amended to 29 October 2003) (Rom), Art. 8 para. 2), the ‘democratic constitutional order’ (Constitution of the Republic of Croatia: 2 December 1990 (as Amended to 7 May 2001) (Croat), Art. 6), the ‘free democratic basic order’ (Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012) (Ger), Art. 21), and ‘democracy’ in general (Constitution of the French Republic: 28 September 1958 (as Amended to 23 July 2008) (Fr), Art. 4).

C.  Banning Political Parties

8.  Banning of political parties dates back to the immediate aftermath of the Second World War, and was justified with reference to specific ideologies. The German Basic Law of 1949 includes a number of provisions that are the direct result of lessons drawn from the Weimar experience, and this is especially true for Art. 21, paragraph 2: ‘Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional’ (Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 11 July 2012) (Ger)). Three days after the adoption of the country’s constitution, the Federal Constitutional Court (‘BVerfG’) was invited to rule on the legitimacy of the Socialist Reich Party (‘SRP’) on the one hand, and the Communist Party of Germany (‘KDP’) on the other. In the first case, the SRP was declared unconstitutional in 1952, based on an assessment of its political platform, internal structure, and the behaviour of its leaders. This decision offered the Court the opportunity to give a first interpretation of the role of political parties according to the 1949 Basic Law, and of militant democracy more generally as entrenched therein. The judgment regarding the KDP, however, proved more complex; not handed down until 1956, the ruling provided for the dissolution of the party due to the presence of a fixed plan to combat the free democratic order. This assessment however was very generic and it did not require the identification of clear and present danger, therefore, in order to strengthen its argument, the BVerfG proceeded to declare militant democracy a constitutional value. Of the two, the KDP decision was more controversial because by 1956, the Communist Party had very little support and it was unlikely that it would be able to overthrow democracy in the foreseeable future; it was probably for this reason that Germany subsequently moved to ‘subtler’ forms of democratic militancy, ie the loyalty screening of public servants. It should be noted that investigations regarding anti-constitutional activities are the domain of the Federal Office for the Protection of the Constitution, which collects and analyses relevant intelligence. In 2003, the Constitutional Court was called upon to decide on the constitutionality of the National Democratic Party (‘NPD’), relying on the declarations of one of the party leaders, who later turned out to be an informant for the intelligence services. The case was dismissed, however a new motion to ban the NPD was filed in 2013. The BVerfG delivered its judgment in January 2017 and decided not to ban NPD. In fact, the Court argued that anti-constitutionality—which is undisputed with regard to the aims of NPD—is not the only necessary criterion that may lead to a party ban. In order for a ban to be a proportional solution (proportionality), the party in question would also need to have a proven capability of reaching its aims, and in the case of NPD the court believes that it does not represent an imminent danger to German democracy. That said, the role of the judiciary in reviewing bans on political parties remains crucial in order to avoid abuses.

9.  The Australian Communist Party Case perfectly exemplifies the importance of judicial oversight of bans on political parties. The 1950 Communist Party Dissolution Act declared the Australian Communist Party illegal, together with its associated entities (which were identified by the governor general). The act was challenged by the party and a number of unions in front of the High Court, which found the statute unconstitutional due to the absence of sufficiently compelling circumstances. The Court did not accept the assertion—found in the legislation itself—that the dissolution of the Communist Party was necessary for the defence or maintenance of the Australian Commonwealth. Therefore, the federal Parliament had unlawfully exercised its legislative competence. The statutory ban was based on the claim that Australia and its Constitution were threatened by the activities undertaken by the Communist Party and that prohibition was therefore necessary for security reasons.

10.  Pre-emptive strategies aimed at minimizing undemocratic developments are also relevant with regard to religion; in other words, in some countries, secularism is a core value worth protecting by means of limiting the right to form political organisations: Turkey is a classic example. Art. 103 of Turkey’s Law on Political Parties provides for the dissolution of a political party that pursues goals contrary to the principle of secularism. This notion is further enshrined in Art. 2 of the Turkish Constitution (Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) (Turk)), which defines the Republic of Turkey as a ‘democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace.’ On this basis, on 17 January 1998, the Turkish Constitutional Court dissolved Refah Partisi (the Welfare Party, formed in 1989), which in 1996 came to power by forming a coalition government. The dissolution was the result of a procedure initiated by State authorities on the grounds that Refah was the ‘centre’ of activities that ran contrary to the principle of secularism as enshrined in the Constitution. According to the Court, Refah’s leaders and members were using democratic rights and freedoms in order to replace the democratic order with a system based on Sharia law, thus rendering their political agenda constitutionally illegitimate. When considered by the Court in Strasbourg, Refah’s proposed model of legal pluralism was confirmed to be incompatible with a democratic society. To use Patrick Macklem’s words: ‘the legality of Turkey’s militant democratic stance ... rested on the illegality of Refah’s proposed model of legal pluralism’ (510).

11.  In other cases, a constitutionally mandated ban on political parties may be aimed at protecting the territorial integrity of the State. Turning to Israel, in the Al-Ard case, the Supreme Court confirmed the exclusion of the Socialist Party’s candidates from the 1965 election of the sixth Knesset, on the grounds that some of the candidates were part of the Al-Ard movement, which had been accused of denying the integrity and very existence of the State of Israel. However, unexpectedly, in 1984 the Supreme Court did not apply this doctrine neither to the disqualification of extreme right-wing Kach party list, nor to the Progressive List for Peace. In fact, according to the Court, in neither case (the former pursued racist goals while the latter advocated for the establishment of a Palestinian state alongside the Israeli one) was there a reasonable danger to the State’s existence or to its democratic character. Consequently, the legislator amended the Basic Law of the Knesset by introducing a list of aims or deeds that cannot be pursued, overtly or implicitly, by a list of candidates running for elections (Art. 7(a), Basic Law: The Knesset: 12 February 1958 (as Amended to January 2003) (Isr))—thus codifying the basis for the Kach party to be disqualified in 1988 and again in 1992, together with its related entity, Kahane. In 1992, the government passed the Parties Law, which regulates the formation, status, and registration of political parties; the law also introduced a two-tier monitoring system of political parties’ activities, covering both registration and campaigning. Another country facing issues related to territorial integrity is South Korea, whose Constitution (Constitution of the Republic of Korea: 12 July 1948 (as Amended to 29 October 1987) (S Kor)) states that ‘the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands’ (Art. 3) and that ‘the Republic of Korea seeks unification’ (Art. 4). This peculiar territorial arrangement is directly related to political rights, because Art. 8, paragraph 4 provides that: ‘If the purposes or activities of a political party are contrary to the fundamental democratic order, the Government may bring action against it in the Constitutional Court for its dissolution, and, the political party is dissolved in accordance with the decision of the Constitutional Court.’ Thus, any political organisation advocating against peaceful reunification or in favour of the North Korean regime would obviously breach such clauses. Up until 2014, the Constitutional Court had never declared a political party unconstitutional; however, on 19 December of that year it delivered an unprecedented ruling dissolving the minority Unified Progressive Party (‘UPP’) and disqualifying all five of its Members of Parliament. The dissolution of political organisations is not a novelty in South Korea. In fact, the National Security Act (‘NSA’) prescribes party dissolution by administrative order if an organisation has allegedly pursued anti-government activities. The constitutional ban and the NSA clearly have two different ratio legis, the first being the protection of the democratic order and the second the protection of State security; however, in the 2014 UPP case, these two statutory goals (dangerously) overlapped. Despite being accused of acting under orders from North Korea to subvert the South Korean state through violent revolution, the UPP was not dissolved by an administrative order according to NSA rules, but presented to the Constitutional Court for dissolution. In an eight-to-one ruling, the majority of the Constitutional Court found the UPP’s programme incompatible with ‘progressive democracy’ because it aimed at installing a socialist government. According to the judges, ‘the basic democratic order of Korea is basically in line with the destiny of our country,’ and the ‘importance of social interest in safeguarding the basic democratic order and democratic pluralism far outweighs the disadvantages possibly caused by party dissolution, namely the serious restraint on the freedom of party activities and on the pluralistic democracy’ (summary from the official website of the Constitutional Court of South Korea). Similarly, in Taiwan, parties whose ‘goals or activities jeopardise the existence of the Republic of China or the free democratic constitutional order’ of Taiwan are deemed unconstitutional (Ginsburg 84). The Democratic Progressive Party was thus targeted for its pro-independence agenda by the government’s Political Party Screening Committee, according to which the state of Taiwan should not claim entitlement to govern all of China. The 1992 constitutional amendment likewise relocated the screening committee’s power to the Council of Grand Justices (ibid.).

12.  Interestingly, the Republican Party of Russia was dissolved in 2007 for failing to comply with requirements of minimum membership and, especially, regional representation; accused of threatening the national interests of a united Russia, the party had never actually advocated regional interests or separatist views. More generally, though, numerous countries whose territorial integrity has been or is in dispute ban political parties advocating separatism; for example, the Ukrainian Constitution prohibits parties that threaten the independence of the state (Art. 37, Constitution of Ukraine: 28 June 1996 (as Amended to 21 February 2014) and Art. 68 of the Turkish Constitution (Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) (Turk)) prohibits parties that are considered to be against the ‘indivisible integrity (of the State) with its territory and nation.’

D.  Banning and Post-Banning Strategies

13.  One of the most complicated issues arising from the banning of political organisations remains the consequences of party dissolution. In Germany, if a party is declared unconstitutional, its assets will be seized and all signs of party affiliation removed from the public realm. The country’s Criminal Code (Arts 84 ff. StGB) prohibits the creation of replacement or successor organisations, and federal election law (§ 46 I Nr. 5 BWahlG) establishes that elected representatives of these organisations will automatically and immediately lose their mandates, as overseen by the Federal Ministry of the Interior.

14.  For obvious reasons, the dissolution of a political party is more problematic when the banned party is also the ruling majority, as was the case with Refah Partisi at the time of its dissolution. More broadly, post-banning strategy refers to constitutional provisions tackling post-ban developments and the fate of the relevant political organisation, its individual members, and related entities. For example, according to the Turkish Constitution, once parties are banned, they cannot subsequently regroup under a new name, and the party elites whose actions and words prompted the banning cannot assume comparable positions in any other party for five years (Art. 69 of the Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) (Turk)) and section 95(1) of Law No 2820). Turning to Spain, when the Supreme Court dissolved Herri Batasuna on the basis of the 2002 Law on Political Parties, the fate of the group of Batasuna representatives sitting in the Basque Parliament was put to question. In the end, the ban did not extend to individuals, who could keep their seats, but the dissolution of the parliamentary group was ordered. Finally, in the case regarding the disqualification of the Israeli Kach party, its related entity, Kahane, was dismantled, too.

E.  Who Bans Political Parties?

15.  In Germany, a request to declare the unconstitutionality of a political party at a federal level can be filed by the Bundestag, the Bundesrat or the Bundesregierung (the federal government). All of these bodies can also jointly present a single motion before the BVerfG. During the pretrial phase (Vorverfahren), the BVerfG examines the admissibility of the motion to ban the party and, after hearing the party’s counterarguments, it decides whether to dismiss the motion or to move forward to the oral proceedings, and then to the final verdict. Both the preliminary admissibility decision and the final verdict must be adopted with a two-thirds majority. Just as Germany’s general model of militant democracy has inspired numerous constitutional drafters around the world, the country’s specific procedure for declaring a political party unconstitutional has also been replicated by a great number of countries. This is true for many post-1989 Central-Eastern European (‘CEE’) constitutions: Bulgaria (Art. 149, no. 5, Constitution of the Republic of Bulgaria: 12 July 1991 (as Amended to 6 February 2007) (Bulg)), Romania (Art. 146, lett. k) Cost., Constitution of Romania: 21 November 1991 (as Amended to 29 October 2003) (Rom)), Poland (Art. 188 of the Const. and Art. 2, para. 6 of the Law on the Constitutional Tribunal), Croatia (Art. 129, Constitution of the Republic of Croatia: 2 December 1990 (as Amended to 7 May 2001) (Croat)), Macedonia (Art. 110, Constitution of the Republic of Macedonia: 17 November 1991 (as Amended to 12 April 2011), Albania (Art. 134, Constitution of the Republic of Albania: 21 October 1998 (as Amended to 18 September 2012) (Alb)), Serbia (Art. 167, Constitution of the Republic of Serbia: 30 September 2006 (Serb)), and Montenegro (Art. 149, Constitution of the Republic of Montenegro: 19 October 2007 (Montenegro)), which all establish that such decisions should be taken by their constitutional courts. In Slovakia and the Czech Republic, the Constitutional Court has an appellate jurisdiction—that is, it assesses the constitutional legitimacy of bans decided by the government (Art. 87, lett. j) of the Constitution of the Czech Republic: 16 December 1992 (as Amended to 14 November 2002) (Czech); Art. 129, para. 4 of the Constitution of the Slovak Republic: 1 September 1992 (as Amended to 1 May 2006) (Slovk)). As far as assigning the power to initiate the procedure to dissolve a political party, CEE countries have adopted various approaches that build upon the tripartite power of initiative foreseen in Germany. For example, the list of subjects with standing (locus standi) can be limited to the government and the judiciary, or it can more broadly include individuals, administrative agencies, individual members of Parliament, and other entities. The first approach is taken in Poland, where Art. 191 of the Constitution gives the minister of the interior, attorney general, and the court managing the political party registry the power to file a motion to dissolve a political party. In Romania, claims can be lodged in the Constitutional Court by the government and by the presidents of the two chambers of Parliament, if approved by an absolute majority of their members. The former Yugoslav republics, however, have a substantially larger category of subjects empowered to lodge requests before their constitutional courts to dissolve political parties; in Slovenia, for instance, the list includes individual citizens, the National Assembly or one third of its deputies, the National Council, ordinary courts, politicians, and union leaders. Croatia’s list also includes the president of the Republic; while in Montenegro it contains, inter alia, the ombudsman, administrative agencies competent to protect human rights, and Non-Governmental Organizations.

F.  Bans on Political Parties and Transitions towards Democracy

16.  Despite the fact that countries transitioning towards democracy are increasingly regulating their political parties, the relationship between banning political parties with and democratisation remains ambiguous. It should be noted that autocratic regimes seem to ban political parties more frequently than democratic ones, suggesting that majorities can adopt such measures for the purpose of getting rid of opposition parties that could challenge the incumbent. However, more generally, Teitel (Teitel 49) has underlined that militant democratic measures should be aligned with transitional constitutionalism. This view is shared by the ECtHR in its 2011 decision on Republican Party of Russia v Russia, which stated that in non-transitional countries, scrutiny of militant democratic measures should be stricter. The configuration of political party bans nonetheless strongly depends on the histories of individual countries—it depends on each country’s risk analysis, and on the basis of which risks their distinctive measures have been adopted. For example, according to Sajó (Sajó 217), by introducing into their post-1989 legal systems measures related to militant democracy, CEE countries have tackled three main concerns: the return of communism; territorial disintegration backed by extreme nationalism; and the rise of right-wing extremism. Latvia and Lithuania both dissolved their respective Communist parties in 1991; Bulgaria did the same with the United Macedonian Organisation of Ilinden-Pirin in 1999, and the Czech Republic proceeded similarly in 2010 against the Workers’ Party.

17.  However, due to their previous experiences, countries transitioning to democracy may reject the banning of political organisations because open competition is considered an irrevocable element of the democratic process. South Africa, for example, rejected party bans because it was reminiscent of the limits imposed on political associations under Apartheid; moreover, after the end of Apartheid, the presence of anti-system parties in South Africa has been marginal, considering the role played by the African National Congress as post-1994 ruling party. On the contrary, in the rest of Africa, due to the fact that the wave of democratisation started in the early 1990s had in many cases marked the return to (or introduction of) party politics and competitive elections, the great majority of sub-Saharan countries legally banned political parties built on religious (90 per cent), ethnic (83 per cent), or identity-based (88 per cent) criteria. The aim was invariably the same: to keep ethnicity out of party politics (Bogaards, Basedau and Hartmann 606). The post-1994 Rwandan government banned numerous political parties that discriminated against other groups or incited ethnic violence—which, considering the mass atrocities that occurred under the former ruling party appeared more than reasonable. However, the government’s later bans were not as convincing, and appear to bend progressively toward repressing political opposition.

18.  That said, one thing is to have party ban rules in government legislation and another to actually implement the restrictions. When analysing sub-Saharan countries, alongside those without any party ban legislation (eg, South Africa) and those that have implemented many such provisions (eg, Nigeria, Rwanda, Tanzania, Uganda), there are a number of nations that introduced formal provisions but have apparently ignored them in practice (eg, Senegal).

G.  Banning in International Law

19.  Although there is no obligation explicitly codified in any international treaty to encourage the banning of political parties, since domestic bans on political parties coexist with international legal commitments to protect civil and political rights, it can generally be argued that international law is not averse to the introduction of democratic tools for countries’ self-preservation. The most significant body of international standards and recommendations with regard to party bans is the case law of the ECtHR. The right to form a political party is protected under Art. 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’), in coordination with Art. 10 (on freedom of speech), Art. 3 of Protocol 1 (on free and periodic elections), and Art. 17 (the so-called ‘abuse clause,’ preventing individuals from justifying extremist activities on the basis of the Convention). Art. 11 enshrines the freedom of peaceful assembly and association, and it provides for the conditions necessary to set limitations on such a right: ‘No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.’

20.  The case law of the Commission and of the ECtHR can be divided into four phases, matching ‘the types of threats militant democracy was designed to address at various times of the concept’s ‘life’ since it was introduced to the constitutional practice of European states’ (Tyulkina 97). First came the decisions adopted before the end of the 1990s, which were based solely on Art. 17 of the Convention and did not consider possible breaches of other substantial provisions of the ECHR—see, for example, Communist Party of Germany (1956) (Ger) and Glimmerveen and Hagenbeek v the Netherlands (1979) (ECommHR). Second, the 1998 Turkish Communist Party Case (The United Communist Party of Turkey v Turkey (ECtHR)) which represented the first relevant decision going beyond Art. 17 by narrowing member states’ margin of appreciation with regard to political party bans. This judgment clarified that: all measures prohibiting political parties fall under the scope of Art. 11 of the ECHR and within the jurisdiction of the ECtHR (notwithstanding cases in which the member state regards parties as pursuing anti-constitutional goals, or when the prohibition is a statutory measure); and it also outlined the contours of a legitimate exercise of the margin of appreciation. The ECtHR established that Arts 10 and 11 shall be read in combination and interpreted in the light of democratic principles and pluralism; moreover, given the fact that they are not unlimited in scope, such restrictions shall be interpreted precisely, especially with regard to political parties. The third phase consisted of decisions taken in the aftermath of the Turkish Communist Party case; these rulings generally condemned member states’ ban on political parties, as States should be primarily fostering debate and open dialogue, regardless of whether the ideas or proposals appear to be incompatible with a state’s constitution (see, for example, Socialist Party and Others v Turkey (ECtHR)).

21.  However, the ECtHR has underlined that the compatibility of political party bans with the Convention should be considered in the broader political context of the State, as domestic legislation sometimes legitimately exerts limiting powers—as, for example, in the Refah Partisi Case, whose dissolution was regarded as ‘necessary in a democratic society’ within the meaning of Art. 11, paragraph 2 of the Convention. In the fourth phase, the decisions adopted after the Herri Batasuna Case established that militant democracy as an anti-terrorism measure is compatible with Art. 11 of the Convention and, more generally, that militant democracy is itself a duty imposed by international law.

H.  Final Remarks

22.  In Legality and Legitimacy, Carl Schmitt discusses the vulnerability of procedural democracy when confronted by organised political groups determined to overthrow it, and he identifies unalterable substantive limits as the necessary solution for preventing this from occurring. Political majorities may in fact be able to suspend basic, structural elements of the constitutional state through legal procedures, and only a State prepared to defend itself can be qualified as truly democratic (Sajó 213). It should be noted that one could also bring into the picture the issue regarding political parties that, due to their corrupt conduct, lose their legitimacy. For example, in 2007, the Constitutional Tribunal of Thailand disbanded Thai Rak Thai because its most senior officials were found guilty on charges of bringing small parties to compete in the elections in order to fulfil the 20% minimum turn out requirement. As a result, party leader Thaksin Shinawatra and Thai Rak Thai were banned from politics for a period of five years (Leyland and Harding 163). However, these cases are beyond the scope of the traditional doctrine of defensive democracy and, rather, they should be framed in the conceptualization of a ‘fifth branch’ of government, specifically referred to administrative institutions dealing with (new) conflict-of-interest problems, such as corruption in the classical sense, disposition of electoral controversies and concealment of information (Tushnet 96). Indeed, the Thai Rak Thai case was referred to the Constitutional Court by the National Anti-Corruption Commission on the basis of Section 34 of the Organic Act on Anti-Corruption of 1998. For the same reason, the issue of political parties that lose their legitimacy in the light of a growing disconnect between their activities and public opinion has also not been addressed herein.

23.  Remaining instead into the realm of the classical doctrine of militant democracy, a ‘Constitution should not be a suicide pact and should incorporate guarantees of its self-preservation’ (Tyulkina 33). This lesson, learned in Europe during the 20th century, is widely, although not universally, accepted and translated through the implementation of, among other measures, constitutionally mandated bans on political parties. However, notwithstanding this common element underlying limitations on the right of political association, specific countries may decline it according to their history, society, and legal heritage. Indeed, if the self-defence of the State remains the common justification for such measures, the specific features of forbidden activities depend on context and necessity as shown by ethnic party bans and by anti-terrorism policies. Such flexibility has proved both positive and negative depending on the case, because party bans dynamically serve various purposes and counter different threats, but they can easily be abused of, especially in unstable regimes struggling to consolidate democracy. In other words, provisions typical of a militant democracy could become instruments for aspiring autocrats, vanquishing the participation of opposition parties in the political arena notwithstanding their popular support. For example, Venezuela is today an emblematic case in this sense. Opposition parties are subject to all kinds of restrictions to prevent the exercise of their rights, even though they have been supported increasingly by voters, leading to consistent democratic degradation.

24.  These days, the deceptive implementation of bans on political parties represents the greatest risk for democracy in countries which implement these kinds of measure; a thorough judicial review of dissolution decisions based on the interpretation of militant democracy is the most practical way to minimise this. The body of decisions handed down by constitutional tribunals and other courts, and party banning processes more specifically, have indeed become consistent and thus offer a set of useful interpretative criteria and protective standards. More generally, national judiciaries are vested with the task of wisely implementing bans on political parties in order to safeguard their nation’s democracy. Korean Constitutional Court Justice Kim Yi-su’s dissenting opinion in the UPP dissolution decision best represents this idealised role. In fact, he warned the Court’s majority of the consequences that their decision may have on the freedom of individuals and Korean society at large, by recalling the repercussions that the dissolution of the Communist Party in West Germany had on the Party’s personnel. The latter were investigated, suffered criminal punishment and even lost their jobs: this was clearly an undesirable and disproportionate result especially when one considers that this decision had the aim of fostering democracy (Lee 5).

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