Defending Democracy: A New Understanding of the Party-Banning Phenomenon
Bligh, Gur, Vanderbilt Journal of Transnational Law
Recent years have witnessed a growing tendency among established democracies to battle political extremism by banning extremist parties. This Article explores this phenomenon in its wide-ranging international manifestations. The Article aims to challenge the prevalent paradigm underlying the discussion of party banning and to introduce a new paradigm for conceptualizing the party-banning phenomenon in its current reincarnation. Traditionally, the discussion concerning party banning has been strongly shaped by the traumatic experience of Hitler's rise to power and the collapse of the Weimar Republic. Hence, it has focused upon parties that are overtly opposed to democracy, like communist or fascist parties. Yet, the threats to democracies have changed considerably in recent years, and it appears that the "Weimar scenario" is becoming far less relevant. Instead, contemporary party banning mainly involves parties that incite to hate and discrimination, parties that support violence and terrorism, and parties that challenge the identity of the state. These new banning categories are difficult to understand and justify within the traditional paradigm and require an alternative framework. The new paradigm must focus upon the electoral arena as a source of legitimacy and status rather than merely an instrument for coming to power. This Article links this new legitimacy paradigm to the change in the nature of political parties and to their transformation from primarily representative organizations into "public utilities," or "public service agencies." Once the contours of the legitimacy paradigm are established, this Article proceeds to examine which parties can justifiably be banned within this paradigm and to address its practical implications.
TABLE OF CONTENTS INTRODUCTION II. THE WEIMAR PARADIGM A. Theoretical Basis B. Practical Manifestations III. NEW CATEGORIES OF BANNING A. Incitement to Hate or Discrimination B. Support of Violence C. Challenge to the Identity of the State IV. ACCOMMODATING THE NEW CATEGORIES WITHIN THE WEIMAR PARADIGM A. Questioning the Legitimacy of the New Banning Categories B. Expanding the Weimar Paradigm V. THE LEGITIMACY PARADIGM A. The Purpose of the Banning 1. Legitimacy and the Change in the Role of Parties 2. Framing Effects and the Nature of the "Political Field" 3. Conclusion B. Which Banning Categories Are Justified? VI. APPLYING THE LEGITIMACY PARADIGM A. The Irrelevance of the Probability Standard B. The Evidentiary Question C. The Actual Effects of a Party Ban D. Potential Dangers VII. CONCLUSION
In May 2010, the Czech Constitutional Court affirmed the decision to ban the Far-Right Workers' Party, the first ideological party ban in the Czech Republic since the fall of Communism. (1) In June 2009, the European Court of Human Rights (ECHR) affirmed the 2003 ban of Batasuna (and two of its predecessors, Herri Batasuna and Euskal Herritarrok) by the Spanish Supreme Court. Batasuna was widely recognized as the political wing of Euskadi Ta Askatasuna (ETA), the Basque terrorist organization. (2) In July 2008, the Turkish Constitutional Court narrowly decided to refrain from banning Turkey's governing party, Justice and Development (AKP), and instead cut its public funding in half and issued a "serious warning" to the party for threatening the country's secular principles.3 In 2003, the German federal government (together with the Bundestag and Bundesrat) attempted to ban the National Democratic Party (NPD), the oldest neo-Nazi party in Germany. Following a preliminary examination, the Federal Constitutional Court authorized the banning proceedings but later denied the banning petition when it discovered that several of NPD's leaders were in fact undercover agents or informers of the German secret service. (4)
These cases are only a few recent examples of an intriguing trend: the banning of extremist political parties. …