A party ban is democracy's weapon of last resort
In Germany, it was considered a historic judgement when, on 17 January 2017, the Constitutional Court declared itself unwilling to ban the Nationaldemokratische Partei Deutschlands (NPD). Germany's 16 federal governments had tried to ban the party, which many have described as neo-Nazi.
Although the Constitutional Court acknowledges that the NPD is anti-democratic, this was not enough for a ban.
"NPD is pursuing unconstitutional objectives, but there is currently insufficient evidence to suggest that the party will succeed in their endeavour,” was the reasoning, according to Ritzau, and later from the president of the Constitutional Court, Andreas Vosskuhle.
NPD is one of the parties that Associate Professor Angela Bourne of Roskilde University is analysing in order to uncover why some democratic states take the drastic steps of banning political parties. She has previously researched the overall phenomenon across Europe after World War II, and she is now exploring concrete examples from three countries: Sinn Fein in the United Kingdom, Herri Batasuna and its successors in Spain, and the Neo-fascist Sozialische Reichspartei Deutschland, Kommunistiche Partei Deutschlands and NPD in Germany.
These and other parties that have been banned, or where attempts have been made to have them banned, challenge democracy because, for example, they regard violence as a legitimate means of achieving political goals or because they undermine core democratic principles such as equality and tolerance by attacking the rights of vulnerable groups.
”This is a democratic dilemma. Should democratic societies tolerate these unpleasant parties because people vote for them and because parties are a cornerstone of democracy? Or should we refuse to accept these parties because they are problematic in democratic contexts? Despite the fact that there is a fundamental expectation that it should be possible for all opinions to be publicly expressed, and that there should be freedom of expression and association, many democracies actually set limits and ban parties,” says Angela Bourne.
It is not an easy decision to ban parties.
"When a party is banned, it happens because decision-makers are convinced that the party poses a threat to the democratic system, core values in society or the security of the state. The threat must be perceived as serious to such an extent that an exceptional choice is made to ban a party. This often happens on the basis of a triggering factor, such as an escalation of violence, but something extraordinary is also need in order to make society go from anti-democratic parties being offensive or provocative to a party actually being banned. That's a good thing, because it should not be easy to ban a party” she says.
The parties that have been banned throughout Europe in years past have differed greatly. Some have represented extreme wings of the political spectrum and may have espoused political opinions that have been considered incompatible with democracy. Others have worked for independence for certain regions.
Some parties, such as Sinn Fein and Herri Batasuna, have been associated with terrorist movements such as the Irish Republican Army (IRA) and Euskadi Ta Askatasuna (ETA) respectively.
It is difficult to set clear parameters for when a democracy resorts to banning a party.
"One could expect that if a party supports violence and if it is obviously associated with a terrorist group, then the party should be banned. But this is not necessarily the case” says Angela Bourne.
She points to Sinn Fein as an example, because the party was legalised in the United Kingdom in 1974, even though Northern Ireland had been hard hit by political violence in the late 1960s and early 1970s.
"The British government hoped that, over time, Sinn Fein could be used as a tool to turn the IRA away from violence. It was a controversial decision and it was difficult to argue against banning Sinn Fein, when many people were killed, the IRA committed terrible acts, and Sinn Fein defended it. The government made the decision that in the long run, and despite moral and ethical problems, it would be better that these attitudes were expressed openly. In the long run, it could be a way out of violence,” she explains.
Bans create debate about democracy
When democratic states want to ban parties, it usually leads to intense discussions. Some argue for a ban because it would send a signal to the political system about what is acceptable and what is unacceptable. It is to protect democracy, and it would be worse to do nothing, the argument goes.
Others speak against bans by arguing that they are rarely effective. Movements with popular support cannot be suppressed and the parties can simply emerge again under new names, as has happened in the case of Herri Batasuna in Spain. Bans can create martyrs and make things worse.
In Spain and Germany, for example, there have also been more philosophical debates about what bans do to a democracy.
"A central question has been whether banning parties undermines political diversity. It can be seen as an attack on diversity, freedom of expression and freedom of association, and therefore these have also been issues that belong in constitutional courts” explains Angela Bourne.
Other means against large movements
A ban can still be an option in a democratic state, but there has been a development.
"Today, a ban is not so much a tool to defend a besieged state, because it is no longer very likely, especially in Western Europe, that a party could threaten the very existence of a state or achieve a fascist or communist coup. Some have argued that we would probably no longer really see parties banned after the end of the Cold War, but it still occurs. Fortunately, it is not used often, but it remains a tool in the toolbox that democracies can use” says Angela Bourne.
When bans are considered today, it often concerns anti-democratic parties from the far right that have populist tendencies.
"The arguments are no longer based so much on the idea that the parties threaten the existence of a state, but that they are attacking core values such as equality, coexistence and immigrants’ rights," explains Angela Bourne.
In Europe, there is talk of a swing to the right, which in some countries has been driven by more extreme parties. But banning many of these parties would not be the right approach, she believes.
"A ban is not really an appropriate tool against parties that represent large, popular movements. Bans are generally used against 'underdogs', it is more suitable for marginalized groups” she says.
There have recently been elections in France, where the leader of the Front National right-wing party, Marine le Pen, lost the decisive ballot.
"It would be unthinkable to ban a party like Front National, because it represents such a large movement. However, many other means have been used against the Front National, including the electoral system and sanctions against extreme statements, for example when the former leader of the party, Jean-Marie Le Pen, was convicted for denying the Holocaust, and for inciting hatred and ethnic discrimination. So, in such cases, there are more appropriate measures than a ban. A ban is really the ultimate choice, and it is a very serious measure” concludes Angela Bourne.
Angela Bourne, Associate Professor of Globalization and Europeanization at the Department of Social Sciences and Business. Head of Studies at International Studies and Global Studies. Teaches on the course EU Governance at International Studies.