The Centre Cannot Hold: Reflections on Militant Democracy in Germany

Author:Benjamin Low
Position:Senior Freshman LLB Candidate, National University of Singapore
Pages:136-158
© 2018 Benjamin Low and Dublin University Law Society
THE CENTRE CANNOT HOLD: REFLECTIONS ON
MILITANT DEMOCRACY IN GERMANY
BENJAMIN LOW
Introduction
On 24 September 2017, Germany went to the polls to elect the 19th
Bundestag and, by extension, the next government of the Federal Republic.
At the time of the election, most analysts and opinion polls were predicting
a sizeable, albeit reduced, victory for the centre-right Christian Democratic
Union (CDU/CSU) and more disconcertingly, electoral gains for the
populist right-wing Alternative for Germany (AfD).
1
The opinion polls
were prescient: the CDU/CSU took 26.8% of the vote, its lowest share since
1949, while the AfD took 12.6% of the vote,
2
easily surpassing the 5%
electoral threshold needed to attain representation in the Bundestag and
leapfrogged to become the third-largest party in the Bundestag after the
CDU/CSU and the centre-left Social Democratic Party (SPD).
3
The results of the 2017 Federal Election are significant in that the
present composition of the German parliament remains even more
fragmented than ever, thereby making the task of forming a governing
coalition extremely difficult.
4
More importantly however, a far-right
political party in Germany has managed to achieve parliamentary
representation for the first time since the inception of the Federal Republic.
While it remains to be seen whether the AfD can continue its present
string of electoral successes, the 2017 election result raises questions as to
the viability of Germany’s constitutional-legal model of ‘militant
Senior Freshman LLB Candidate, National University of Singapore. I am grateful to Agnes
Lo for her unstinting support in this endeavour. All errors remain my own.
1
‘Sonntagsfrage Bundestagswahl’ (Wahlen, Wahlrecht und Wahlsysteme)
accessed 15 December 2017.
2
‘2017 Bundestag Election: final result’ (Federal Returning Officer, 12 October 2017)
2017/34_17_endgueltiges_ergebnis.html> accessed 16 December 2017.
3
§ 6, Federal Electoral Law (Bundeswahlgesetz, BWG) (FRG).
4
At the time this article was written, coalition talks between the CDU/CSU, the Free
Democratic Party and the Green Party had collapsed, prompting the CDU/CSU to seek the
possibility of another ‘grand coalition’ with the SPD.
[2018] Reflections on Militant Democracy in Germany 137
democracy’, which had been designed to pre-empt and neutralise the sort
of electoral outcomes that we saw last year.
Furthermore, the results of the 2017 Federal Election follow the
Federal Constitutional Court’s earlier ruling against a ban of the far-right
extremist National Democratic Party of Germany (NPD).
5
Considered
cumulatively, these developments suggest that militant democracy in
Germany is not functioning as well as previously. However, the decline in
militant democracy did not begin with the NPD case, instead it goes back
to the 1970s when the Constitutional Court demonstrated its increasing
reluctance to authorise the banning of extremist political parties. This
gradual change in the constitutional jurisprudence of the German courts
suggests a rollback in the ambit of militant democracy in Germany, which
is especially problematic given that it is taking place amidst the current
period of rising support for populist political parties on both ends of the
ideological spectrum across Europe. While contemporary research on the
nature and features of the German model of militant democracy is
plentiful, none appears to have satisfactorily addressed the new
phenomenon of extreme populism in Europe nor reconcile existing
political developments with the present model of militant democracy.
The focus of this article will be the development of an understanding
of the evolutionary change in German constitutional jurisprudence and its
implications for Germany’s approach towards dealing with extremist
political organisations. First, the article will consider the legal aspects and
features of the German model of militant democracy and their historical
application since the promulgation of the Basic Law.
6
Second, the legal-
political developments of 2017 will be analysed and their implications for
militant democracy in Germany will be discussed. Finally, this article will
attempt to set forth possible ways of navigating the present legal quandary
that the German constitutional system finds itself in and consider and
propose a recalibration of the traditional approaches and rationales
underpinning militant democracy in Germany.
5
Bundesverfassungsgericht (BVerfG), Judgment of the Second Senate of 17 January 2017, 2
BvB 1/13 - Rn. (1-1010), English translation available at
http://www.bverfg.de/e/bs20170117_2bvb000113en.html.
6
Basic Law for the Federal Republic of Germany (Grundgesetzfür die Bundesrepublik
Deutschland, GG) in the revised version published in the Federal Law Gazette Part III,
classification number 100-1, as last amended by article 1 of the Act of 23 December 2014
(Federal Law Gazette I p. 2438).
138 Trinity College Law Review [Vol 21]
I. Defending Democracy: Lessons from Weimar
The concept of militant democracy as a constitutional legal-political
system has its origins in the writings of Karl Loewenstein and other
contemporary scholars of the 1930s. Amidst the backdrop of the electoral
success of the National Socialist German Workers Party (NSDAP) and
their equally successful destruction of the liberal-democratic structure of
the Weimar Republic,
7
Loewenstein argued for liberal democracies to arm
themselves with a slew of legal measures to combat Fascist and National
Socialist movements,
8
including the proscription of organisations that
were intrinsically anti-democratic in nature
9
and the removal of the ability
of political parties to form paramilitary formations.
10
Democracy was thus
to be made ‘militant’ through legislative measures that would ‘fight fire
with fire’.
11
When the Parliamentary Council convened in Bonn in September
1948, its members were virtually unanimous in their recognition that the
new constitution for Germany should contain explicit provisions for the
suppression of political parties that were hostile to the freiheitlich-
demokratische Grundordnung (free democratic basic order).
12
Weimar had
shown the way. Without institutionalised legal measures to protect
themselves against what might be termed democracy’s ‘internal enemies’,
democratic regimes would find themselves helpless to combat political
extremism and subversion from those who sought to do away with
democracy.
The Parliamentary Council produced the German Basic Law. Article
79(3) prohibits amendments to the basic principles included in Articles 1
(dignity of man) and 20 (democratic, federal, and social state based on the
rule of law); Article 21(2) provides for the possibility of disbanding
antidemocratic parties that seek to undermine or abolish the free
democratic basic order; Article 9(2) allows the dissolution of
antidemocratic associations; Article 18 provides that individuals who
7
For an excellent description of the course of events leading to the collapse of the Weimar
Republic, see David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and
Hermann Heller in Weimar (OUP 1997).
8
Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, I’ (1937) APSR 417, 432.
9
Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, II’ (1937) APSR 638, 645.
10
ibid 648.
11
ibid 656.
12
Michael F Feldkamp, Der Parlamentarische Rat, 19481949 (Gttingen: Vandenhoeck &
Ruprecht 1998) 70.
[2018] Reflections on Militant Democracy in Germany 139
abuse rights in order to subvert the liberal democratic order may lose their
individual freedoms; and Article 20(4) gives every citizen the right to resist
attempts, including those of the public authorities, to abolish the
constitutional order.
Reference is made throughout this article to Articles 9 and 21. These
provisions warrant consideration in further detail, since they are
concerned with the most obvious and the most notable legal aspect of
militant democracy: the banning of associations and political parties.
Article 9(2) permits the Federal Government to dissolve political
associations whose aims and activities contravene the criminal laws of
Germany or which are directed against the constitutional order. It places
the discretion to ban in the hands of the executive.
13
This contrasts with
Article 21(3) which stipulates that political parties may only be deemed
unconstitutional by the Federal Constitutional Court. Clearly, the framers
of the Basic Law, while not wanting to deny the State the means to combat
organised political extremism, sought to curb the possible misuse of
Article 21 by the federal executive to ban its political opponents by placing
the right to ban squarely within the Federal Constitutional Court’s
jurisdiction. As Judith Wise has pointed out,
14
the greater constitutional
protection of political parties complements the protection of democracy
under militant democracy.
15
II. Militant Democracy in Action: The SRP and the KPD
Cases
Just a few years after the founding of the Federal Republic of Germany and
almost immediately after the establishment of the Federal Constitutional
Court, militant democracy was put to the test as the Federal Government
submitted applications to the Constitutional Court in November 1951 to
declare both the Socialist Reich Party (SRP) and the Communist Party of
Germany (KPD) unconstitutional and pave the way for their dissolution.
The SRP had been established by former members of the NSDAP and
claimed to be the legitimate successor of the NSDAP. Its party programme
was geared towards the establishment of a one-party state modelled on the
13
Thus the banning of political associations is not subject to the approval of the Federal
Constitutional Court but is instead a mere administrative action.
14
Judith Wise, ‘Dissent and the Militant Democracy: The German Constitution and the
Banning of the Free German Workers Party’ (1998) The University of Chicago Law School
Roundtable 301.
15
ibid 311.
140 Trinity College Law Review [Vol 21]
tenets of National Socialism. On this, the court was left in no doubt that
the SRP was an unconstitutional party that fell within the ambit of Article
21 and duly declared the party to be unconstitutional.
16
The decision to ban the Communist Party took longer and was mired
in considerable political controversy
17
but eventually in 1956, the
Constitutional Court reached the same conclusions that it did in the SRP
case and declared that the KPD was an unconstitutional political party that
was to be dissolved.
18
Both decisions are unique in that they marked the first, and thus far
only, instances where political parties were successfully banned under
Article 21 of the Basic Law. The judgments in both the SRP and KPD cases
are noteworthy as well as they represent the Constitutional Court’s first
efforts at providing a comprehensive interpretation of Article 21 and the
nature of the militant democratic order in Germany. In its judgment in the
SRP case, the Constitutional Court laid down the test for determining a
party’s constitutionality based on its acceptance or rejection of the free
democratic order.
19
The court further held that if a party’s internal
organisation does not correspond to democratic principles, this would
generally suggest that the party intended to impose its own structural
values onto the State.
This legal test of ‘acceptance or rejection’ of a free democracy raises
a further question: what exactly constitutes the free democratic order for
the purpose of Article 21 of the Basic Law? In the SRP case, the
Constitutional Court gave its famous definition of the freiheitlich-
demokratische Grundordnung as:
‘an order which excludes any form of tyranny or arbitrariness and
represents a governmental system under a rule of law, based upon
self-determination of the people as expressed by the will of the
existing majority and upon freedom and equality. The fundamental
principles of this order include at least: respect for the human rights
given concrete form in the Basic Law, in particular for the right of a
person to life and free development; popular sovereignty; separation
16
2 Entscheidungen des Bundesverfassungsgerichts (BVerfGE, Decisions of the Federal
Constitutional Court) 1 (SRP), The Constitutional Jurisprudence of the Federal Republic of
Germany (translated by Donald Kommers and Russell Miller, 3rd edn, DUP 2012) at 286.
17
For a full account of the history behind the ban proceedings against the Communist
Party, see Justin Collings, Democracy’s Guardians: A History of the German Constitutional
Court 19512001 (OUP 2015) 40-45.
18
5 BVerfGE 85 (KPD).
19
2 BVerfGE 1 (n 16) 46 (translated in Kommers, Constitutional Jurisprudence at 287288).
[2018] Reflections on Militant Democracy in Germany 141
of powers; responsibility of government; lawfulness of
administration; independence of the judiciary; the multi-party
principle; and equality of opportunities for all political parties.’
20
In its decision in the KPD case, the Constitutional Court re-applied the
same standards that it had laid down in the SRP case, albeit with a slight
modification in that it extended the ambit of Article 21 to encompass all
forms and manners of ‘totalitarian’
21
parties, and not just the Fascist and
National Socialist parties of old. Additionally, the Court interpreted Article
21 as a clear manifestation of the militant democracy’s willingness to
defend itself, using the particular term streitbare Demokratie
22
for the first
time.
23
More crucially, the Constitutional Court made it clear that a political
party could be declared unconstitutional as long as its aims were
manifestly at odds with the Constitution even if the party had no hope of
fulfilling these aims.
24
This seemingly low threshold for constitutionality
appears to have been influenced by the fact that the KPD, despite its lofty
goal of establishing the Marxist-Leninist programme, was already facing a
steady decline in its electoral fortunes and realistically stood no chance of
achieving its intended aims.
25
Taking these two decisions together, the Federal Constitutional
Court’s standard in determining the successful applicability of Article 21
appeared to hinge chiefly on whether or not the defendant political party’s
programme in question constituted an active rejection of the existing free
democratic order. As long as this standard was met, it appears that the
threshold for invoking Article 21 would have been amply satisfied even if
the political party in question was incapable of fulfilling its intended
programme. Thus, the lynchpin of the Constitutional Court’s attitude in
the 1950s was modelled on what Peter Niesen
26
refers to as the ‘anti-
20
ibid 12-13.
21
5 BVerfGE 85 (n 18) 139.
22
The term ‘streitbare Demokratie’ can be taken to mean literally ‘fortified democracy’ or
‘battlesome democracy’. Some commentators have rejected the current definition of
‘streitbare Demokratie’ as meaning a militant democracy but since that definition has been
accepted almost universally by English and German commentators, the terms shall be
treated as as co-terminus.
23
5 BVerfGE 85 (n 18) 139.
24
ibid 153.
25
The party only managed to receive 5.7% of the vote in the 1949 Bundestag election and
2.2% in the 1953 election.
26
Peter Niesen, ‘Anti-Extremism, Negative Republicanism, Civic Society: Three Paradigms
for Banning Political Parties - Part I’ (2002) 1,2 German Law Journal 12.
142 Trinity College Law Review [Vol 21]
extremism’ approach,
27
that of combating political extremists and anti-
democratic elements of the right and left.
Symbolically, the SRP and KPD cases signified the Federal Republic’s
intolerance of political extremism from both ends of the ideological
spectrum. Practically speaking, the decisions were admittedly of little
significance since both parties were in no position to realistically threaten
the liberal-democratic order in existence at that time.
III. The Threshold is Raised: Militant Democracy
Restrained
It is noteworthy that the Socialist Reich Party and the Communist Party of
Germany remain the only two political parties to have been successfully
banned in the history of post-war Germany. This is despite numerous
applications brought by the Federal Government against other political
parties since then.
28
When analysing these later decisions by the Federal
Constitutional Court, one detects a greater reluctance by the judges of the
Court to grant the applications of the Federal Government to ban such
parties.
29
While the decisions of the Constitutional Court have often been
justified on various and oftentimes differing reasons from one another, we
will see in further detail below that what ties these decisions together is
the increasing distrust of the Constitutional Court towards the scope and
powers of Article 21.
A. The Radical Groups Case
In 1975 and 1976, three radical left-wing parties were denied campaign
broadcasting time by various radio and television stations in three German
states. The actions of the radio and television stations were upheld by
lower administrative courts, prompting the three parties to file a
constitutional complaint alleging that their rights as political parties under
27
ibid 13.
28
The European Court of Human Rights initially followed the Federal Constitutional
Court’s lead in endorsing restrictions on the activities and the freedom of expression of the
KPD but has subsequently adopted a more tolerant approach. For an illustration of the shift
in the ECtHR’s stance, see the contrasting cases of Glasenapp v Germany (1987) 9 EHRR 25
and Vogt v Germany (1996) 21 EHRR 205.
29
The influence of the case law of the European Court of Human Rights was acknowledged
by the Federal Constitutional Court in its ruling against permitting a banning application
against the NPD; see BVerfGE 2 BvB 1/13 (n 5) at § 510.
[2018] Reflections on Militant Democracy in Germany 143
the Basic Law had been infringed.
30
As Donald Kommers and Russell
Miller have shown, the Constitutional Court allowed the complaint by
distinguishing between an organisation’s status as a political party and its
potential proscription as an unconstitutional party under Article 21. In the
opinion of the court, the fact that ‘the complainants were possibly engaged
in pursuing unconstitutional goals, especially the abolition of the
parliamentary system, does not strip them of their character as political
parties.’
31
Whether a political party was indeed of a constitutional or an
unconstitutional nature was to be determined differently from its status as
a political party under the Basic Law.
32
The Radical Groups Case might be technically correct on a very strict
construction of Article 21. It is, however, problematic insofar as it marks a
departure from the low threshold employed by the Constitutional Court
when adjudicating on the applications to ban the SRP and the KPD. The
Constitutional Court appeared to suggest that only once a party was
declared unconstitutional could it then be deemed to have forfeited the
rights and privileges bestowed upon it by the Basic Law. Yet one wonders
why the Constitutional Court did not take it upon itself to canvass the
question as to the constitutionality of the three left-wing parties since that
was the underlying argument that the respondent public bodies relied on
in the proceedings. Perhaps it was because that was not the specific focus
of the proceedings before the Constitutional Court (unlike the SRP and the
KPD cases) but nevertheless, the Constitutional Court made clear its
intention to prioritise the equal opportunity of political parties to
participate in the electoral process over any questions of constitutionality.
B. The Republikaner Party
In the aftermath of German reunification in the 1990s, Germany found
itself confronting a disturbing rise in right-wing extremist activities as
well as increasing electoral support for right-wing extremist
organisations.
33
Amidst this groundswell of support for the extreme Right,
the Federal Office for the Protection of the Constitution (BfV) and the State
Offices for the Protection of the Constitution (the Länder
34
or state-level
30
47 BVerfGE 198 (Radical Groups Case).
31
Kommers and Miller (n 16) 292-293.
32
ibid.
33
Wise (n 14) 338-339.
34
The BfV is the national agency responsible for domestic security matters in Germany,
much like the Garda Crime and Security Branch of Ireland. However, as Germany is a
federal republic, each of the German states (collectively known as the Länder) have their
144 Trinity College Law Review [Vol 21]
equivalent of the BfV) agreed to begin surveillance and collect
information
35
on the Republikaner party (REP), a right-wing nationalist
conservative party that had been established in 1983.
While the Republikaner party had sought to portray itself as
committed to the constitutional principles of the Basic Law, it appears that
studies of the party at that time suggest that it retained close ties with
other extreme right-wing forces in Germany and that it professed certain
xenophobic and racist beliefs,
36
considerations which no doubt influenced
the Federal Office’s decision to begin surveillance of the party. Yet no
sooner was this decision made than did the party seek out temporary
injunctions in the various German states prohibiting the use of state-
sanctioned surveillance against the Republikaner party.
37
Although most of the administrative courts of the various Länder
rejected the Republikaner party’s applications,
38
one notable exception was
Lower Saxony where the Lower Administrative Court granted the
Republikaner party a temporary injunction,
39
followed by a permanent
injunction,
40
against surveillance by the Lower Saxon State Office for the
Protection of the Constitution. Curiously, the Court based its decision on
the existing jurisprudence of the Federal Constitutional Court from the
KPD case,
41
which it applied in its interpretation of the Lower Saxon
statute that regulated the ability of the State Office to collect intelligence
and conduct surveillance. On that basis, the Lower Saxon Court concluded
that the Republikaner party, while prone to expressions of objectionable
values, had not been shown to be actively seeking to overthrow the
constitutional order. While the Republikaner party ultimately opted
against pursuing the matter further in the Federal Constitutional Court, it
is evident from the decision in the Lower Saxon courts that a judicial
precedent regarding the strict reading of constitutional protection laws
own respective State Offices for the Protection of the Constitution which enjoy
considerable independence from the Federal Government.
35
The establishment of the BfV and its state-level equivalents as well as the regulation of
its methods are governed by the 1950 Federal Constitution Protection Law
(Bundesverfassungsschutzgesetz, BVerfSchG).
36
Thomas Saalfeld, ‘The Politics of National-Populism: Ideology and Policies of the German
Republikaner Party’ (1993) 2(2) German Politics 177.
37
For a more detailed account, see Gillian More, ‘Undercover Surveillance of the
Republikaner Party: Protecting a Militant Democracy or Discrediting a Political Rival?’
(1994) 3(2) German Politics 284.
38
ibid 289-290.
39
Decision of 8 February 1993, Az 10 B 5545/92.
40
Decision of 29 November 1993, Az 10 A 1051/93.
41
5 BVerfGE 85.
[2018] Reflections on Militant Democracy in Germany 145
had already been set in place by the 1990s which would ultimately
foreshadow the Constitutional Court’s own decision regarding the NPD.
42
IV. The NPD Cases: A Spanner in the Works
As has been previously illustrated, the Federal Constitutional Court
initially set a low threshold for determining whether a political party could
be construed as unconstitutional and thus dissolved parties when it first
had to consider these issues in the 1950s. The judicial test then centred on
whether a political party rejected the free democratic constitutional order
and was actively engaged in attempting to overturn that order. It did not
seem to matter to the Constitutional Court that the political party in
question was in fact capable of achieving those goals.
Notwithstanding this liberal threshold, the Constitutional Court has
since displayed considerable reluctance in employing that yardstick in
favour of finding various political parties unconstitutional under Article
21. Similarly, in the case of the Republikaner party, the German courts as
a whole appear to have differed in their applications of the
unconstitutionality test even though they have all relied on the existing
jurisprudence of the Federal Constitutional Court, demonstrating a lack of
consensus as to the proper scope of the tests for unconstitutional
organisations and unconstitutional activity.
This gradual turnaround in the approach of the German courts
towards dealing with alleged extremist political parties has been
confirmed in the recent ban proceedings against the NPD.
43
Since its
formation in 1964, there has never been much doubt as to the anti-
democratic and extremist nature of the NPD. The BfV considers the NPD
42
The Free German Workers Party (FAP) has not been included in this discussion because,
while the organisation was the subject of a ban application by the Federal Government, the
Federal Constitutional Court ruled that the FAP was neither a political party under the
Basic Law nor under the definition in the Law on Political Parties but rather, was a political
association. The distinction made by the Court in this instance only serves to underscore
the additional legal safeguards and protections that political parties enjoy in Germany, a
distinction that we will return to in the latter part of this paper. See ‘Announcement of the
Press Office of the Federal Constitutional Court’, Nr.13/952; see also Wise (n 14) 340 for the
original German text and its English translation.
43
Melissa Eddy, ‘German Court Rejects Effort to Ban Neo-Nazi Party’ The New York Times
(17 January 2017)
right.html> accessed 20 December 2017. See also Alexander Pirang, ‘Renaissance of the
Militant Democracy?’ (Lawfare, 27 March 2017)
militant-democracy> accessed 20 December 2017.
146 Trinity College Law Review [Vol 21]
to be a right-wing extremist political party
44
which is committed to the
abolition of parliamentary democracy in Germany and which has
regularly maintained an official platform of German ultra-nationalism,
racism, and anti-Semitism. The party has a clear ideological affiliation with
the former NSDAP. Nevertheless, the NPD has only had marginal success
in the federal elections
45
and has only managed to win a handful of seats
in the regional parliaments of the German Länder.
46
The first attempt to ban the NPD came in 2003 when, in the midst of
what was termed the Aufstand der Anstndigen
47
(‘uprising of the
decent’), the Federal Government, together with the Bundestag and the
Bundesrat, jointly submitted an application to the Federal Constitutional
Court to have the NPD declared unconstitutional and dissolved. However,
the proceedings ultimately collapsed before the scheduled oral hearings
were to take place when the Federal Constitutional Court discovered that
several members of the NPD, including high-ranking leaders, were
working as informants for the domestic intelligence services prior to and
during the banning proceedings.
48
In view of this revelation, the
Constitutional Court found itself compelled to discontinue the proceedings
because of the apparent procedural unfairness caused by having state
informants and agents within the NPD’s leadership, ostensibly allowing
the State to influence the activities of the party.
49
44
‘What is right-wing extremism?’ (Bundesamt für Verfassungsschutz)
of-work/right-wing-extremism/what-is-right-
wing-extremism> accessed 20 December 2017; see also ‘Verfassungsschutzbericht 2016’
(Bundesamt für Verfassungsschutz)
2016.pdf> accessed 20 December 2017.
45
The NPD has only averaged fewer than 2% of the total vote in the federal elections since
its inception.
46
The NPD’s last electoral success came in the 2009 Saxony state elections when the party
managed to win eight seats in the state legislature. However, at the time this article was
written, the NPD has since lost all of its seats in the various German states and is no longer
represented at the state or federal level.
47
‘Germany moves to ban far-right party’ BBC News (26 October 2000)
accessed 21 December 2017.
48
Alexander Haneback, ‘FCC Suspends Hearing in NPD Party Ban Case’ (2002) 3,2 German
Law Journal
71e2/1454994417445/GLJ_Vol_03_No_02_Hanebeck.pdf> accessed 20 December 2017, para
7; Thilo Rensmann, ‘Procedural Fairness in a Militant Democracy: The “Uprising of the
Decent” Fails Before the Federal Constitutional Court’ (2003) 4,11 German Law Journal
1117.
49
Bundesverfassungsgericht (BVerfG), Decision of the Second Senate of 18 March 2003, 2
BvB1/01, 2/01, 3/01 at §§ 64-116, available at
http://www.bverfg.de/entscheidungen/bs20030318_2bvb000101.html.
[2018] Reflections on Militant Democracy in Germany 147
The second attempt came in 2016 when the Bundesrat requested that
the Federal Constitutional Court ban the NPD on largely the same grounds
as the first attempt.
50
However, this time, there were to be no procedural
impediments to the proceedings as the Constitutional Court found that the
evidence now relied on by the applicants had not been tainted and that
government informants in the NPD’s leadership had long since been
deactivated prior to the commencement of proceedings.
51
Notwithstanding this finding, on 17 January 2017, the Federal
Constitutional Court rejected the application to ban the NPD.
52
The judgment of the Federal Constitutional Court warrants
considerable scrutiny given the implications of its decision. The Court
began by reiterating its position that strict procedural fairness necessary
for the conducting of a fair trial was indispensable in proceedings to ban a
political party,
53
given that the provisions of Article 21.2 constitute a
significant infringement of the right to freedom of association.
54
It further
reiterated the longstanding precedent that a political party would be
deemed unconstitutional if its programme seeks to abolish or undermine
the free democratic order.
55
As to what constitutes ‘seeking’ to abolish or
undermine the free democratic order, the Court held that:
in accordance with the exceptional character of the prohibition of a
political party as the preventive prohibition of an organisation and
not a mere prohibition of views or of an ideology, there can,
however, be a presumption that the criterion of ‘seeking’ has been
met only if there are specific weighty indications suggesting that it
is at least possible that a political party’s actions directed against the
goods protected under Art 21(2) GG may succeed (potentiality).
56
The Court next moved on to consider the alternative, where a party might
not be in a position to achieve its stated goals:
conversely, if it is entirely unlikely that a party’s actions will
successfully contribute to achieving the party’s anti-constitutional
50
‘Germany's Federal Constitutional Court opens case against NPD’ Deutsche Welle (7
December 2015) accessed 22 December 2017.
51
BVerfGE 2 BvB 1/13 (n 5) at §§ 428-433.
52
ibid § 633.
53
ibid § 417.
54
ibid § 523.
55
ibid § 548.
56
ibid § 585.
148 Trinity College Law Review [Vol 21]
aims, there is no need for preventive protection of the Constitution
by using the instrument of the prohibition of the political party,
which is the sharpest weapon, albeit a double-edged one, a
democratic state under the rule of law has against its organised
enemies (cf BVerfGE 107, 339). On the contrary, the prohibition of a
political party may be considered only if the political party has
sufficient means to exert influence due to which it does not appear to
be entirely unlikely that the party will succeed in achieving its anti-
constitutional aims, and if it actually makes use of its means to exert
influence. If this is not the case, then the requirement of ‘seeking’ within
the meaning of Art 21(2) GG is not met.
57
This marks a complete departure from the earlier precedent laid down in
the KPD case. Indeed, the Court next went on to declare itself unwilling to
concur with the reasoning in that particular decision.
58
Having expressed what it considered to be the proper standard for
ascertaining the unconstitutionality of a political party, the Federal
Constitutional Court proceeded to address the present case. And on the
facts before it, the court concluded that the NPD ‘disrespects the
fundamental principles which are indispensable for the free democratic
constitutional state’
59
but declined to rule in favour of a ban as ‘[t]here are
no sufficiently weighty indications suggesting that [the NPD] will succeed
in achieving its anti-constitutional aims.’
60
This finding was made in due
consideration of the fact that the NPD, in its five decades of existence, had
consistently failed to establish itself permanently as a political force on the
federal level. Furthermore, at the time of ban proceedings against the
party, the NPD was already suffering from further declining electoral
returns and a haemorrhaging of popular support from the party to other
right-wing alternatives such as the AfD.
61
The consequence of the Constitutional Court’s decision of 17
January 2017 is that the threshold for banning a political party under
Article 21 has been raised considerably. No doubt this will further
complicate efforts by the federal executive and other constitutional organs
in Germany to clamp down on organised political extremism in the near
57
ibid § 586 (emphasis added).
58
ibid.
59
ibid § 634.
60
ibid § 896.
61
Jefferson Chase, ‘AfD: What you need to know about Germany's far-right party’ Deutsche
Welle (24 September 2017) to-know-about-
germanys-far-right-party/a-37208199> accessed 24 December 2017.
[2018] Reflections on Militant Democracy in Germany 149
future, given that there is now an additional requirement of ‘potentiality’
for the political party to fulfil its anti-constitutional aims. More
fundamentally, it is submitted that the Constitutional Court’s judgment
marks a severe erosion in the efficacy of militant democracy in Germany.
Recall that the Basic Law had been formulated precisely to pre-empt the
same set of legal and political problems that the Weimar Republic
confronted during its existence: the spectre of organised anti-democratic
forces relying on democratic and legal means to capture the State for the
purpose of doing away with these democratic institutions. Nevertheless,
the framers of the Basic Law were also mindful of the need to balance
concerns of political extremism against the protection of the fundamental
rights and liberties of citizens, which is why the party ban process was
placed under the jurisdiction of the Federal Constitutional Court.
62
Given
that court proceedings of such a constitutional nature are often lengthy
and cumbersome affairs, there remains the ever-present risk that the
political landscape might evolve far quicker than the courts can effectively
respond to. A stricter legal test that imposes a greater standard of proof on
the State only serves to render the State’s ability to defend itself ever more
cumbersome.
At first glance, these new developments by themselves do not appear
to pose any real and serious difficulties for the State. As long as moderate,
democratic forces continue to exercise the reins of power in Germany and
hold majorities in the federal and state legislative bodies, a repeat of the
Weimar experience seems to be unlikely. As for the NPD itself, there is no
indication whatsoever that it will be able to reverse the current decline in
its fortunes. The party appears likely to be consigned to electoral oblivion.
The problem only becomes more acute when one factors in the rise of the
AfD and the dangers posed by the newfound model of right-wing
populism that the AfD espouses.
V. Germany’s Tea Party: The Alternative for Germany
So far, this article has covered political parties in Germany whose
programmes and ideological content would normally situate them in the
category of traditional extremist right-wing or left-wing parties, thereby
placing them within the scope of Article 21, with the exception of the
Republikaner party. In the SRP and KPD cases, the respondent parties
concerned were the archetypal examples of political parties that clearly
sought the abolition or undermining of the free democratic order in
62
GG (n 6) Article 21(3).
150 Trinity College Law Review [Vol 21]
Germany. Even the NPD, which managed to avoid being banned by the
Constitutional Court, was held by the Court to be intrinsically opposed to
the free democratic order.
The AfD, however, represents something of an anomaly that
militant democracy appears ill-equipped to handle. The party’s remarkable
success, when it appeared to be on the verge of splitting apart from
fractional infighting only two years ago,
63
is in no small part due to the
party having embraced a hard-line anti-immigrant and anti-refugee
position that it has skilfully combined with its existing economically
liberal and socially conservative platform. While it is not the purpose of
this paper to embark on a definitional exercise regarding the classification
of the AfD, a preliminary identification of the party’s position on the
political spectrum is necessary when discussing the constitutionality of
the party’s programme. To that end, for the purposes of this discussion, I
shall refer to the AfD as a right-wing populist party since the salient
features of its agenda correspond most closely to traditional aspects of
right-wing and populist ideology.
A. Is the AfD an Unconstitutional Party?
As highlighted above, militant democracy in Germany had traditionally
been conceived as a means of allowing the free democratic order to combat
organised political extremism through legal means. In this paradigm, the
enemies of the free democratic order were traditionally those that
belonged to the extreme fringes of the political spectrum, chiefly the
‘totalitarian’ ideologies of National Socialism and Communism. There is
no real doubt that these political ideologies are inimically opposed to
liberal democracy and thus fall squarely within the category of
democracy’s enemies. However, with the present strand of right-wing
populism that the AfD embodies, which is shared by numerous other
populist parties across Europe such as the Front National and Danish
People’s Party, the question as to whether such attitudes contravene the
Basic Law becomes much more difficult to answer.
For a start, the AfD’s position is distinguishable from that of the NPD
or even the former SRP and KPD in that it does not officially propose the
abolition or removal of the parliamentary democratic system currently in
place. A cursory glance at the party’s manifesto indicates that the AfD
63
‘Germany’s euroskeptic AfD party seeks to heal deep rifts’ Deutsche Welle (4 July 2015)
to-heal-deep-rifts/a-
18561343> accessed 28 December 2017.
[2018] Reflections on Militant Democracy in Germany 151
wishes to introduce direct referenda based on the so-called ‘Swiss Model’
64
as well as other constitutional changes to existing laws governing political
parties and campaign finance.
65
Yet none of these necessarily amount to
abolition of the existing constitutional system.
66
A stronger case could be made that the AfD’s programme violates
the Basic Law based on its provisions which are opposed to the
propagation of Islam in Germany.
67
The AfD has also called for the
deportation of imams who engage in ‘anti-constitutional agitation’,
68
the
banning of the construction of minarets
69
and the wearing of the burqa
and niqab by Muslim women.
70
These could arguably contravene Articles
1, 3, 4 and 5 of the Basic Law which deal with the fundamental liberties
and rights of persons, thereby amounting to a violation of the free
democratic basic order as defined in the SRP case.
71
The AfD’s stance on
the European Union and its opposition towards further European
integration might run afoul of Article 23, which pledges Germany to
contribute to the development of the EU.
However, it is unlikely that these aspects of the AfD’s ideology,
taken as a whole, evince a concerted effort to challenge the existing
constitutional order within the parameters of the framework established
by the Constitutional Court. In the event that the court is called upon to
rule upon the constitutionality and banning of the AfD, the end result will
most likely be similar to that of the Republikaner party, where the
administrative courts in Lower Saxony argued that that party’s
programme, while morally questionable, did not constitute
unconstitutional activity.
72
It is very likely that the Federal Constitutional
Court will reach a similar conclusion and will rule against any such ban
application. Even if a case could be made that the AfD is an
unconstitutional party under Article 21, political realities might
64
Alternative for Germany, ‘Manifesto for Germany: The Political Programme of the
Alternative for Germany’ (Alternative für Deutschland)
content/uploads/sites/111/2017/04/2017-04-12_afd-grundsatzprogramm-englisch_web.pdf>
accessed 21 December 2017, 8.
65
ibid 10.
66
See BVerfGE 2 BvB 1/13 (n 5) § 543 where the Federal Constitutional Court held that the
replacement of the parliamentary democratic system with a plebiscitary one would not
violate the free democratic basic order.
67
Alternative for Germany (n 64) 48-49.
68
ibid.
69
ibid.
70
ibid.
71
2 BVerfGE 1 (n 16) 12-13.
72
Az 10 A 1051/93 (n 40) 18.
152 Trinity College Law Review [Vol 21]
discourage the Federal Government from bringing an application to the
Constitutional Court to ban the party. Any such attempts at doing so
would only lend greater credence to the AfD’s ‘anti-establishment’
credentials and could even lead to charges that the CDU/CSU is exploiting
Article 21 to get rid of a political rival. Another failed application, coming
after the debacle of the second NPD case, would backfire spectacularly
against Chancellor Merkel’s government. It appears, therefore, that the
AfD is here to stay.
B. Comparative Experiences across Europe
The above discussions only serve to highlight the dilemma that militant
democracies must grapple with as they struggle to deal with the onset of
right-wing populism in Europe. Austria has long employed constitutional
laws in the form of the National Socialism Prohibition Act 1947
73
to outlaw
the Nazi Party and its affiliated organisations as well as to prohibit any
attempts at reviving or reorganising these organisations. In 1988, the
Austrian Constitutional Court outlawed the far-right National Democratic
Party on the basis that it contravened the National Socialism Prohibition
Act 1947 and Article 9
74
of the Austrian State Treaty.
75
Yet this victory for
Austria’s militant democracy came amidst the electoral rise of the right-
wing Freedom Party of Austria (FPÖ). In a manner that closely mirrors the
approach by the AfD, the FPÖ’s skilful blend of right-wing national
conservatism and populism, while carefully crafting a public image of
respectability, has reaped sufficient dividends by allowing the party to
enter into a coalition government
76
with the liberal Austrian People's Party
(ÖVP) notwithstanding its avowed hostility towards Islam and
immigration. One might be forgiven for thinking that militant democracy
in Austria has been effectively stymied with the normalisation and
legitimisation of the FPÖ.
The case of Hungary is also illustrative. Although the Hungarian
courts have not shied away from banning associations and groups, such as
the Hungarian Guard Movement, whose activities constitute a violation of
73
National Socialism Prohibition Act 1947 (Verbotsgesetz 1947, VerbotsG).
74
Article 9 (‘Dissolution of Nazi Organisations’) of the Austrian State Treaty mandates the
dissolution of the National Socialist party and its affiliated organisations while requiring
the Austrian state to take all steps to prevent any resurgence or revival of Nazism.
75
VfGH-Erkenntnis 25.06.1988 B 999/87.
76
‘Austrian far-right joins coalition led by PM Sebastian Kurz’ BBC News(16 December
2017) accessed 6 February 2018.
[2018] Reflections on Militant Democracy in Germany 153
human dignity
77
and include incitements to violence and/or hateful
rhetoric,
78
the position of the Hungarian authorities with regards to
political parties is less certain. No Hungarian Government has taken steps
to outlaw a political party thus far, which has arguably facilitated the
electoral rise of the far-right political party Jobbik, the Movement for a
better Hungary. While Jobbik has traditionally been characterised as a far-
right political party and has been notorious for expressing anti-Semitic
and anti-Roma tendencies in the past, the party’s leaders have been at
pains now to jettison such positions in a bid to clean up the party’s
image.
79
The result of this campaign of normalisation has been to elevate
Jobbik to the third-largest party in the Hungarian National Assembly, even
though the party retains its right-wing and populist appeal.
As the case-studies of Austria and Hungary have demonstrated,
many parties that espouse right-wing populism do not explicitly nor
officially call for the abolition of liberal democracy. They profess a strict
adherence to the rule of law and compliance with the existing
constitutional system. With regards to the issues of minority rights and
immigration, they have striven to carefully regulate the language and
terminology that they employ, refraining from the overt racist sentiments
employed by previous extremist groups while appearing to permit
individual members to make the odd slip or inflammatory comment as part
of a deliberate strategy of pushing the boundaries of acceptable speech.
80
And while some of these right-wing populist parties appear to officially
eschew any association with the more radical far-right, individual leaders,
such as the AfD’s Bjrn Hcke, have often cultivated or maintained ties to
77
Vona v Hungary [2013] ECHR 653, [13].
78
The Hungarian Guard Movement (Magyar Gárda Mozgalom) was an association
established by the Hungarian Guard Association which was itself formed by members of
the political party Jobbik. The Magyar Gárda’s objective was defined as ‘defending a
physically, spiritually and intellectually defenceless Hungary’ and the group became
notorious for organising demonstrations against so-called ‘Gypsy criminality’ in Roma-
majority areas. The Budapest Regional Court banned the Magyar Gárda on the basis that its
activities violated the rights of the Roma people. The European Court of Human Rights
upheld the ban in the case of Vona v Hungary [2013] ECHR 653.
79
Nick Thorpe, ‘Is Hungary’s Jobbik leader really ditching far-right past?’ BBC News (15
November 2016) accessed 6 February
2018.
80
‘AfD’s Alexander Gauland slammed over “racist” remark aimed at minister’ Deutsche
Welle (29 August 2017)
racist-remark-aimed-at-minister/a-40277497> accessed 30 December 2017; ‘AfD politician
says Germany’s football team “isn’t German”’ Deutsche Welle (3 June 2016)
19305613> accessed 30 December 2017.
154 Trinity College Law Review [Vol 21]
far-right extremist organisations,
81
which raises the possibility that such
populist groups could serve as vehicles for the extreme right to infiltrate
and further their own respective agendas. This raises the possibility that a
party such as the AfD could potentially sweep into power and then revert
to an even more radical right-wing orientation once it is safely ensconced
within a parliamentary majority, by which time it would be too late for
militant democracy to intervene.
While the majority of this analysis has thus far been confined to the
constitutional practice of militant democracy within states, it is now
intended to discuss the experience of militant democracy at the European
Court of Human Rights (ECtHR). State prohibitions of political parties
have often been challenged by their members at the ECtHR on the grounds
that the proscriptions contravene the rights to freedom of expression and
freedom of association and assembly under Articles 10 and 11
(respectively) of the European Convention on Human Rights (ECHR)
82
and
also fall within the ambit of Article 17
83
which prohibits abuses of the
substantive rights enshrined in the ECHR.
84
In assessing the validity of the
defendant State’s ban of the political party or association, the court has
opted to adopt a strict test of proportionality whereby the State’s
restrictions are measured against its intended aims as well as whether or
not there is a ‘pressing social need’ for these restrictions.
85
At the same
time, the court appeared to expressly endorse the doctrine of militant
democracy in the case of RefahPartisi (the Welfare Party) v Turkey
86
on the
basis that:
a state cannot be required to wait, before intervening, until a political
party has seized power and begun to take concrete steps to
implement a policy incompatible with the standards of the
Convention and democracy, even though the danger of that policy
for democracy is sufficiently established and imminent.
87
81
Frank Decker, ‘The “Alternative for Germany”: Factors Behind its Emergence and Profile
of a New Right-Wing Populist Party’ (2016) 34(2) German Politics and Society 1, 12.
82
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR) art 10 and 11.
83
ibid art 17.
84
For a definitive account of the ECtHR’s role in adjudicating on militant democratic
practices, see Paul Harvey, ‘Militant Democracy and the European Convention on Human
Rights’ (2004) 29(3) EL Rev 407.
85
ibid 412.
86
(2003) 37 EHRR 1.
87
ibid [102].
[2018] Reflections on Militant Democracy in Germany 155
Although the doctrine of militant democracy has arguably found
significant support in Strasbourg, it remains an open question as to
whether the ECtHR’s present approach will have to be modified to address
the emergence of modern right-wing populism in Europe. Much of the
body of the ECtHR’s jurisprudence arose where the banned parties in
question showed a clear affinity for traditional extremist ideologies like
Fascism, Nazism, and Communism
88
or advocated the use of violence and
support for terrorist groups.
89
Even in cases such as RefahPartisi, the Court
then was concerned with the normative question as to whether a political
party that was committed to the establishment of a legal regime on Sharia
principles was found to be anti-democratic in nature. Modifying the
ECtHR’s approach to accommodate an emerging strand of right-wing
populism that purports to profess adherence to democratic procedure and
norms while carefully articulating anti-immigrant and even xenophobic
attitudes through respectable language poses conceptual difficulties.
On a more practical level, the Court’s intervention is dependent on
applications by individuals to the ECtHR which in turn are usually only
possible where the judicial bodies of a member State have already
pronounced on the constitutionality of any attempted ban of a political
party. It is only where the highest national court has upheld a party ban
that the ECtHR may consider the case. It is thus submitted that the most
important battleground of militant democracy is before national courts,
and the role played by the ECtHR in shaping the principles of militant
democracy will remain limited.
VI. Rethinking the Bases of Militant Democracy
Given that militant democracy in Germany as it stands now appears
incapable of properly confronting the existential challenge posed by right-
wing populism, a deeper re-examination of the fundamental tenets and
principles of militant democracy is in order if militant democracy is to
remain relevant.
As stated previously, the traditional jurisprudence behind the
German model of militant democracy was centred on ‘anti-extremism’,
chiefly the need to safeguard a free, democratic order, both in terms of the
formal and procedural parliamentary democratic character of the Federal
Republic as well as the substantive nature of that free democratic order
88
Harvey (n 84) 413-416.
89
See HerriBatasuna and Batasuna v Spain, application nos 25803/04 and 25817/04 (ECtHR,
30 June 2009).
156 Trinity College Law Review [Vol 21]
(protection of basic rights and unfettered political participation in a
democratic system) from those who wished to do away with said order. In
this, Gregory Fox and Georg Nolte have referred to the German model as
a ‘militant substantive democracy’,
90
a classification adopted and modified
by Angela Bourne’s description of Germany as an ‘active’ and intolerant,
substantive democracy that frowns upon anti-system ideology and
behaviour by political parties.
91
These approaches have tended to focus mainly on conceptual and
descriptive analyses of the German constitutional system. Gur Bligh’s
concept of the ‘Weimar paradigm’ versus the ‘legitimacy paradigm’
provides a useful starting-point for a new theory of how militant
democracy ought to function.
92
Bligh argues that the ‘Weimar paradigm’,
which was essentially meant to guard against the repetition of a Weimar-
type scenario of political parties overthrowing the democratic order
through democratic practices, has become increasingly incapable of
dealing with those parties that are not necessarily anti-democratic per se
but only oppose certain elements of the free democratic order.
93
To that
end, he proposes the ‘legitimacy paradigm’ as a way of justifying militant
democracy while also dealing with this new category of political parties.
94
The ‘legitimacy paradigm’ differs from the earlier approach in that it
‘focuses on the legitimising effects of participation in the electoral arena
and deems the denial of such legitimacy as the central purpose of the
banning phenomenon.’
95
This approach recognises the greater role that
political parties have assumed as a ‘public good and contributor to the state
because they promote its fundamental democratic characteristics and
goals.’
96
There is thus an added obligation upon political parties to
contribute to a political culture of civic and political equality.
97
Failure to
conform to such an obligation may warrant a ban.
Bligh further suggests that the ‘legitimacy paradigm’ should contain
a higher evidentiary standard of proof
98
while the actual effects of the
party ban should be moderated towards a denial of the party’s access to
90
Gregory Fox and Georg Nolte, ‘Intolerant Democracies’ (1995) 36 Harv Int’l L J 1, 32.
91
Angela Bourne, ‘The Proscription of Political Parties and “Militant Democracy”’ (2012) 7
JCL 196, 211.
92
Gur Bligh, ‘Defending Democracy: A New Understanding of the Party-Banning
Phenomenon’ (2013) 46 Vand J Transnat’l L 1321.
93
ibid 1337-1358.
94
ibid 1358.
95
ibid.
96
ibid 1367-1368.
97
ibid 1368.
98
ibid 1373-1374.
[2018] Reflections on Militant Democracy in Germany 157
legitimate platforms of expression rather than an outright ban.
99
To that
end, Bligh suggests that the examples of Belgium, which denies state
subsidies to political parties opposed to the rights and freedoms enshrined
in the European Convention on Human Rights, and Israel, which
disqualifies a party from competing in elections, provide useful templates
to follow.
The ‘legitimacy paradigm’ is better capable of complementing the
new developments in German constitutional jurisprudence and better
matches the current reality of German politics. Ardently anti-democratic
parties such as the NPD stand no realistic chance of scoring the same
electoral successes as the AfD. On the other hand, as the AfD attempts to
present an acceptable face of right-wing and nativist populism that is
nevertheless discriminatory in its content, the ‘legitimacy paradigm’
provides militant democracy with the suitable intellectual justifications to
mount a defence against such populist trends.
As for possible concrete solutions, it is submitted that as the use of
Article 21 becomes increasingly restrained and regulated by the Federal
Constitutional Court, the Federal Government could find itself relying
more heavily on criminal sanctions against the more extreme and
outspoken leaders who might engage in hateful or racist speech.
100
Alternatively, the State may turn to Article 18 which allows for the
forfeiture of the basic rights of individuals themselves as opposed to
political organisations should these individuals abuse their basic rights.
101
Yet even the application of such measures must be handled carefully if
only to avoid penalising legitimate debate and eroding democratic
freedoms in the name of protecting democracy.
Conclusion
Since 1949, an unmistakable pattern has emerged in German legal history
which points towards a gradual tightening of the criteria and applicability
of militant democracy initially laid down in the Federal Constitutional
Court’s rulings on the constitutionality of a political party.
It is unfortunate that this gradual but seismic development in the
jurisprudence of the Constitutional Court should occur amidst the rise of
99
ibid 1375-1377.
100
The most common example is the concept of ‘Volksverhetzung’ enclosed in § 130,
Section 1 of the German Criminal Code (Strafgesetzbuch, StGB).
101
However, to date, there has been no such case where article 18 was successfully invoked
by the Federal Government.
158 Trinity College Law Review [Vol 21]
a new brand of political populism that has the potential to undermine the
basic rights of certain minority groups in Germany, thereby hindering the
ability of the State to respond more effectively to any possible threats to
the free democratic basic order. One can safely assume that the framers of
the Basic Law did not intend for such a strict watering-down of Article 21
and militant democracy. For now, short of any further radicalisation of the
AfD, the Federal Government and the other major political parties in
Germany will have to accept that the AfD has become a permanent feature
of Germany’s political landscape. How best to accommodate the party
without necessarily legitimising some of the AfD’s more questionable
views will constitute a great legal-political challenge for Germany in the
years to come.

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