Abstract
AbstractThe recent global growth of anti-democratic sentiment has renewed the question of when a political party should be barred from the electoral arena. In modern democracies, even explicitly militant ones, constitutional mechanisms for banning political parties are rarely used. The recent decision by the German Federal Constitutional Court (BVerfG) not to ban the National Democratic Party, despite its neo-Nazi platform, is an example of this restraint, with the BVerfG introducing a new, stricter criterion called “potentiality” for the dissolution of a political party under the German Basic Law. This article draws on neo-institutionalism and comparative constitutional law to explore the democratic ramifications of three different European thresholds for banning an anti-democratic political party: the presumptive test previously used by the BVerfG, the new potentiality criterion introduced by the BVerfG, and the European Court of Human Rights’ requirement for the party in question to be an imminent threat before it can be dissolved.
Highlights
98 James Hogan the NPD’s political aims were “anti-constitutional,”4 it departed from its earlier interpretation of the word “seek.”5 Previously, the term would be satisfied if the party in question sought to enact a substantively anti-democratic ideology
It is largely accepted in Europe that the prohibition of a political party is justified to protect democracy in exceptional circumstances.10. This is reflected by the standard for political exclusion under Article 11(2) of the European Convention on Human Rights (ECHR), which requires the party in question to be an imminent threat
The decision in NPD II is an opportunity to examine the democratic value of three different legal criteria—the BVerfG’s prior presumptive approach, the BVerfG’s new potentiality approach, and the imminent threat test of the European Court of Human Rights (ECtHR)—for the prohibition of anti-democratic political parties
Summary
The possibility of anti-democrats abusing democratic institutions to gain power is often described as the “paradox of democracy.” Today, few states have adopted Hans Kelsen’s model of a tolerant, procedural democracy that allows anti-democrats to achieve power. Instead, they employ measures to suppress organizations that seek to undermine them, with preventive party prohibitions being one such mechanism. When the concept was first proposed by Karl Loewenstein, it was justified as a means of protecting liberal democracy from fascism. Since Loewenstein’s original thesis in 1937, party prohibitions have been defended as state interventions in failing political markets, preventive measures to protect civil rights, and mechanisms for preserving political pluralism. Further, the doctrine has expanded from the original focus on preventing anti-democrats from taking power to include bans on parties that incite hate and discrimination, parties that support violence or terrorism, and parties that attack the constitutional identity of the state. Since 1945, nineteen European states have banned political parties on these bases.. Militant Democracy and the Banning of Political Parties in Democratic States: Why Some Do and Why Some Don’t, in Ellian & Rijpkema eds., supra note 7, at 25. An anti-democratic party cannot know exactly when it may be within the scope of prohibition It can only make assumptions about when it will achieve the threshold influence or ability to justify a ban. It bans political parties “whose programmes are based upon totalitarian methods and the modes of activity of Nazism, fascism and communism”. This excludes certain political parties based on their behavior rather than on the threat they pose to a particular object—at least explicitly
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