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Report No. 255

C. Internal Democracy: A Comparative Perspective

(i) Germany

3.14.1. With the adoption of the German Constitution (the Basic Law) in 1949, Germany became the first European country with a Constitution that regulated its political parties in order to safeguard democracy. Article 21 of the Basic Law facilitates the regulation of the ideology and activities of political parties, in their adherence to democratic principles and states:

"(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organization must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.

(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. The Federal Constitutional Court shall rule on the question of unconstitutionality.

(3)Details shall be regulated by federal laws."141

141. Basic Law for the Federal Republic of Germany,
<http://www.iuscomp.org/gla/statutes/GG.htm#21>

3.14.2. Pursuant to Article 21(3), the Gesetz uber die politischen Parteien or the Political Party Act was enacted in 1967 to regulate all aspects of political parties such as their internal organisation, candidate nomination, accounts, and banning unconstitutional parties.

3.14.3. The wording of Article 21(2) ("aims or behaviour") lends credibility to the claim that Germany regulates parties both for its unconstitutional actions, and unconstitutional aims, which have not yet been put to action. This power to declare parties unconstitutional has been exercised twice by the Constitutional court to ban the neo-Nazi Socialist Imperial Party (SRP) in 1952 and the German Communist Party (KPD) in 1956.

In the SRP decision, the Court rejected the parties' defence that its proposed form of government was compatible with liberal democratic order, noting that there was not even passive assent to democratic principles. Further, the finding of unconstitutionality implied that sitting party members would lose their seat as:

"When by a judgment of the Constitutional Court a political party's ideas are found to fall short of the prerequisites for participation in the formation of the popular political will, the mere dissolution of the party's organizational apparatus, which was meant to further these goals, cannot truly implement the court's judgment. Rather, it is the intent of the Court's sentence to exclude the ideas themselves from the process of the formation of the political will." [Emphasis supplied]142

142. The SRP Decision, Decision of Oct. 23, 1952, 2 BVerfG I cited from Paul Franz, Unconstitutional and Outlawed Political Parties: A German-American Comparison, 5 Boston College International and Comparative Law Review 51, 57 (1982)

3.14.4. In the KPD decision, the party defended its constitutionality by arguing that Article 21(2) was unconstitutional for violating free speech and association recognised in the Basic Law and that the party's ideology could not be properly subject to a court's review. However, the Constitutional Court reiterated its reasoning from the SRP decision, that it could constitutionally deny the advancement of an idea that violate the principle of individual dignity, even if such an idea had popular support. It stated:

"At the very least, those who are called upon to participate in the formation of this [political] will must be unanimous in their affirmation of the basic values of the constitution. It is conceivable that a political party that renounced and opposed these basic values could exist and be active as a sociopolitical group, but it is unthinkable that its lawful, responsible participation in the formation of the political will could be constitutionally guaranteed."143

143. The KPD Decision, Decision of Aug. 17, 1956, 5 BVerfG at 137 cited from Franz, supra note 142, at 62.

3.14.5. Thus, there appears to be pervasive state control on the internal regulation of political parties, for fear that the parties could "turn the 'popular will' away from inviolable constitutional values".144 However, the same has been exercised infrequently (only in two cases), although there are current efforts to ban the country's largest far right party, the National Democratic Party (NDP).145

144. Franz, supra note 142, at 89.

145. German States Repeat Efforts to Ban Far Right Parties, DW, 3rd December 2003,
<http://www.dw.de/german-states-repeat-effort-to-ban-far-right-npd/a-17266103>



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