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Report No. 170

Chapter IV

German Law on Political Parties

Whether by design or by omission, our Constitution does not provide for the constitution and working of the political parties, though they are at the heart of a parliamentary democracy. A parliamentary democracy without political parties is inconceivable. Yet the Constitution (except the Tenth Schedule which was inserted only in the year 1985) does not even speak of political parties whereas article 21 of the German Constitution (Basic Law for the Federal Republic of Germany, 1949), which Constitution was also enacted almost simultaneously with our Constitution, provides for the establishment and working of the political parties. The Article reads thus:

"Article 21 (Parties)

(1) The parties shall help form the political will of the people. They may be freely established. Their internal organisation shall conform to democratic principles. They shall publicly account for the sources and use of their funds and for their assets.

(2) Parties which by reason of their aims or the conduct of their adherents seek to impair or do away with the free democratic basic order of threaten 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 the subject of federal laws." Pursuant to article 21(3), the German Parliament has enacted the 'Law on Political Parties' in the year 1967, which has been amended from time to time. Section 1 of the Law sets out "General Provisions". Article 1 which deals with the constitutional status and functions of the parties, reads thus:

"Article 1. Constitutional Status and Functions of the Parties. (1) Political parties form a constitutionally integral part of a free and democratic system of government. Their free and continuous participation in the formation of the political will of the people enables them to discharge the public tasks which are incumbent upon them pursuant to the Basic law (Grundgestez)) and which they undertake to fulfil to the best of their ability.

(2) The parties shall participate in the formation of the political will of the people in all fields of public life, in particular by: bringing their influence to bear on the shaping of public opinion; inspiring and furthering political education;

promoting an active participation by individual citizens in political life; training talented people to assume public responsibilities;

participating in Federal, Land and Local Government elections by nominating candidates;

exercising an influence on political trends in parliament and the government;

initiating their defined political aims in the national decision-making processes; and

ensuring continuous, vital links between the people and the public authorities.

(3) The parties shall define their aims in the form of political manifestos.

(4) The parties shall use their funds exclusively for the fulfilment of their obligations under the Basic Law and this Law." Article 2 defines the expression "Political Party". It reads thus:

"Article 2. Definition of the term "Political Party".(1) Parties are associations of citizens who set out to influence either permanently or for a lengthy period of time, the formation of political opinions at Federal or Land level and to participate in the representation of the people in the Federal Parliament (Bundestag) or regional parliaments (Landtage) provided that they offer sufficient guarantee of the sincerity of their aims in the general character of their circumstances and attendant conditions, particularly in regard to the size and strength of their organisation, the number of registered members and their public image. party members may only be natural persons.

(2) An organisation loses its legal status as a party if it has not participated for a period of six years in either a Federal election or a Landtag election with electoral proposals of its own.

(3) Political organisations are not deemed to be parties if;

1. most of their members or the members of their executive committees are foreigners; or

2. the registered seat of business is located outside the purview of the present Law." Article 3 empowers the political parties to institute legal proceedings in their own name and similarly be sued in their own name. article 4 provides that the name of a party must be clearly distinguishable from that of other existing parties and that this rule is also applicable to acronyms. In election campaigns and the elections, only the registered name or acronym may be used. Article 5 provides for equal treatment of all the political parties. It reads as under:

"Article 5. Equality of Treatment.-(1) Where a public authority provides facilities or other public services for use by a party, it must accord equal treatment to all other parties. The scale of such facilities and services may be graduated to conform with the importance of the parties to the minimum extent needed for the achievement of their aims. The importance of a party is judged in particular from the results of previous elections for central or regional government. In the case of a party represented in the Bundestag by a parliamentary party, the significance accorded to it must amount to at least half that granted to any other party.

(2) As regards the granting of public services in connection with an election para (1) applies only for the duration of the election campaign to parties which have submitted election proposals.

(3) The public services referred to in para 1 may be made dependent upon certain preconditions which all parties have to fulfil.

(4) Section IV shall remain unaffected." Section II deals with internal organisation of the political parties. Article 6 is of great significance and may be set out in full:

"Article 6. Statutes and Programme.- (1) A party must have written statutes (articles of association) and a written programme. Regional organisations conduct their affairs on the basis of their own statutes provided that the statutes of their immediately superior regional organisation do not contain any provisions bearing on this matter.

(2) The Statutes must contain provisions on:

1. The name and acronym (if used), the registered seat and the activities of the party.

2. The admission and resignation of members.

3. The rights and duties of members.

4. Admissible disciplinary measures against members and their exclusion from the party (Article 10, paras 3 to 5).

5. Admissible disciplinary measures against regional organisations.

6. The general organisation of the party.

7. Composition and powers of the executive committee and other organs.

8. matters which may only be decided upon by a meeting of members ad representatives pursuant to No.9.

9. The preconditions, form and time limit for convening meetings of members and representatives and the official recording of resolutions.

10. Regional organisations and organs which are authorised to submit or sign election proposals for elections to parliaments inasmuch as three are no relevant legal provisions.

11. An overall vote by members and the procedure to be adopted when the party or a regional organisation or to merge with another party or parties pursuant to Article 9, para 3. The result of the overall vote determine whether the resolution is confirmed, amended or rescinded.

12. The form and content of a financial structure which satisfies the rules of Section V of this Law.

(3) The executive committee informs the Federal Returning Officer of:

1. The party's statutes and programme.

2. The names of the members of the executive committee of the party and its regional organisations together with their duties.

3. The dissolution of the party or a regional organisation. Amendments to sentence 1(1) and (2) above must be notified by 31 December of the given calender year. The relevant documents are held by the Federal Returning Officer and made available to the public for perusal and inspection. On request, copies of the documents are provided free of charge.

(4) Parties whose organisation is restricted to the territory of a Land are governed by the provisions set out in the present Law for parties as a whole."

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