Militant democracy: introducing a ban on political parties in Belgium?

Following the controversial proposal of the Islam party to separate men and women on buses and to introduce Sharia in Belgium, a heated discussion arose about the possible introduction of a ban on political parties. Already three French-speaking parties have tabled proposals to introduce a ban on parties with anti-democratic ideas. Unlike other states such as Germany, France or Spain, Belgium does not have this legal instrument. The need for further clarification on the introduction of such a party ban is therefore evident.

Is a party ban needed?

Militant democracy (Streitbare Demokratie or militant democracy) examines to what extent a democracy may be tolerant and when it must intervene to defend democracy itself. Democracy and pluralism must, after all, remain guaranteed. Political parties play an essential role in this respect. It is nevertheless possible that a democratically elected party threatens to dismantle fundamental democratic principles and fundamental rights. In that case the question arises whether a (constitutional or) statutory instrument to ban political parties is possible. A party may then be unlawful or unconstitutional if it does not pursue the fundamental democratic values or endangers them. Such a ban must be weighed against the constitutional freedoms of the political party: freedom of expression and freedom of association.

In Germany this is a very sensitive issue after the historic victory of the NSDAP in 1933 with all its consequences. Germany has therefore introduced strong protection of the democratic rule of law, including a constitutional party ban. The ban was applied in 1952 and 1956. More recently the ban was again in the spotlight in a case against the NPD (Nationaldemokratische Partei Deutschlands). The Bundesverfassungsgericht held that the party is unconstitutional because it pursues an anti-democratic model of the state (“Volksgemeinschaft”). Nevertheless, the party was not banned because it is very unlikely that the NPD will achieve this goal.

The only mechanisms in Belgium to curb a party that endangers democratic values are criminal law and the withdrawal of party funding. Party funding is withdrawn if the political party is hostile to the rights and freedoms of the European Convention on Human Rights (hereinafter: ECHR) and its additional protocols. However, this sanction has never yet been imposed. The allocation of a Flemish parliamentary group can also be withdrawn following a conviction for racism, xenophobia or negationism. Preventively, parties are obliged to commit to respecting the fundamental rights of the ECHR and its protocols if they wish to qualify for party funding.

Party bans and the ECHR

Article 11 ECHR

Article 11 of the ECHR guarantees freedom of association. This article gives every citizen the right to form an association peacefully, including a trade union. A political party can also fall under this notion. The second paragraph of the article provides for the possibility of restricting this right, if prescribed by law.

The European Court of Human Rights (hereinafter: ECtHR) has ruled several times on the lawfulness of a party ban. The most high-profile judgment of the ECtHR was the one concerning the Welfare Party (Refah Partisi t/ Turkije, 31 juli 2001 and Refah Partisi t/ Turkije, 13 februari 2003). In these judgments both a Chamber and the Grand Chamber concluded that the decision of the Turkish Constitutional Court to dissolve a party with an Islamic foundation did not violate Article 11 ECHR. This is remarkable, because in two earlier cases (United Communist Party of Turkey e.a. t/ Turkije, 30 januari 1998; Freedom and Democracy Party (ÖZDEP) t/ Turkije, 8 december 1999, the Court each time found a violation of that same article.

The Welfare Party was founded in Turkey in 1983. In 1995 it became the largest party in Turkey. In 1997, however, the Turkish Constitutional Court started proceedings to dissolve the party on the ground that leaders and other representatives of the party displayed pro-Islamic conduct. They had allegedly turned the party into a centre of activities contrary to the principle of the “separation of mosque and state”. The Court ultimately decided to dissolve the party.

The party and three of its convicted members then turned to the ECtHR, alleging a violation of Articles 9, 10, 11, 14, 17 and 18 ECHR and Articles 1 and 3 of the First Protocol. The Court treats this as a restriction of Article 11 ECHR. The Court reiterates that this article must be read together with freedom of expression (Article 10 ECHR), as one of the objectives of freedom of association.

In this judgment the Court first defines the limits within which political formations may campaign and can claim the protection of the Convention. Reference is made to the position the Court adopted in the case United Communist Party v. Turkey. There the Court clarified that a political party may campaign for a change in the law or a change in the constitutional structures of the country, provided that two conditions are met. First, the means used must be lawful and democratic in every respect. Second, the proposed change must itself be compatible with the fundamental principles of democracy.

The main question raised in casu is whether the dissolution is actually necessary in a democratic society. In other words, is there a so-called pressing social need because democracy is threatened? To satisfy this, according to the Court, three requirements must be met. First and foremost, there must be plausible evidence that the threat to democracy is sufficiently imminent, assuming that this threat has been proven. Next, the acts and speeches of the leaders and members of the political party must be imputable to the party as a whole. Finally, these acts and speeches must form a whole that gives a clear picture of a model of society pursued by the party which is incompatible with the concept of a democratic society.

The Court concludes that these conditions are met and that there is no violation of Article 11 ECHR. The Court's arguments are threefold. First and foremost, the Welfare Party allegedly sought to introduce a plurality of legal systems. Second, the Welfare Party wished to make Sharia applicable to the Muslim community. Finally, some members of the Welfare Party had allegedly defended holy war (Jihad) as a political method. The majority therefore concluded that there was a pressing social need to dissolve the Welfare Party. The positions of its leading members formed a coherent whole indicating that the party, if it came to power, would reshape Turkish society into a system irreconcilable with the fundamental principles of democracy. In other words, there was a pressing social need and an imminent danger.

Article 9 ECHR, which guarantees freedom of religion, was not violated either according to the Court. It is emphasised in casu that the principle of secularism is one of the fundamental principles of the state, in harmony with the rule of law and respect for human beings and democracy. A party that does not respect this principle will not necessarily be able to rely on the protection of Article 9 ECHR.

Finally, the Court also stresses that the restriction of Article 11 ECHR must be interpreted restrictively and that the member states consequently have only a limited margin of appreciation. This means that drastic measures, such as dissolving an entire party, may only be taken in the most exceptional cases. This may be the case where a party, through its concrete actions, undermines public safety and public peace. A party ban can therefore only be used as a last resort.

Article 17 ECHR

Article 17 ECHR prohibits the abuse of fundamental rights and states that “nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”. Even before the Welfare Party judgment, the European Commission of Human Rights systematically rejected complaints from persons convicted under laws prohibiting the dissemination of racist, Nazi or revisionist ideas. The Commission did so mainly out of fear of the far right. In doing so it often relied on Article 17 ECHR. Even before the Welfare Party judgment, it therefore seemed clear that the ECtHR would allow the ban of a far-right party with a strongly discriminatory programme.

Pending bills

The parties PS, Défi and MR have tabled proposals to introduce a constitutional party ban. The proposals of the PS and Défi are closely aligned and concern a fully elaborated ban. The MR proposal focuses on including political parties in the Constitution and does not elaborate the ban further.

The three proposed party bans use a different notion of ‘ban’. According to Défi, it concerns a ban on participating in the next elections. According to the PS, it can also involve the dissolution of the party. Défi and the PS consider the Constitutional Court competent to impose the ban. The MR does not specify what is to be understood by a ban.

PS and Défi place the provision as the first article under Title II of the Constitution: The Belgians and their rights. The MR places the article further on under this title, more precisely after Article 27 on freedom of association. In each case it concerns a specific article that would be inserted. In the German, French and Spanish Constitutions, the principles of the state structure are set out first, followed by a more specific provision on political parties. The PS seems to want to follow the aforementioned countries. It has indeed tabled a second proposal to clarify the notion of separation of church and state and to anchor it in the Constitution. In this way militant democracy would be constitutionally guaranteed more comprehensively than through a specific party ban.

In response to the Islam party, the cdH also tabled a bill to criminalise (cooperating with) a group that advocates discrimination or segregation.

The bills in light of the ECtHR case law

Do the bills now take account of a “pressing social need”? Answering this obviously requires a concrete assessment of a concrete case.

First, the threat to democracy must be sufficiently imminent (“imminent danger”). PS and Défi describe how this threat may manifest itself in light of the party's aim or the attitude of its members: undermining, overthrowing, violence, inciting thereto, violating or destroying democracy. The MR only mentions “undermining”.

Furthermore, the acts must be imputable to the party as a whole. All the bills concern the party as a whole. The PS and Défi refer to the aim and the attitude of the members.

Finally, Belgian democracy is defined in order to determine which model of society is incompatible with it. MR uses the “fundamental free and democratic order” as its basis, as in the German Constitution (“freiheitliche demokratische Grundordnung”).

Défi and the PS refer to the public freedoms of the Constitution, the ECHR and its additional Protocols. Democracy therefore does not literally appear in these last two proposals, nor consequently in the Constitution as a whole. The ECtHR has, however, already held that democracy is the only political model contemplated by the ECHR (United Communist Party of Turkey e.a. t/ Turkije, 30 januari 1998).

The bills thus make it possible to assess the “pressing social need” in concreto.

The future in Belgium

Legally, it is possible to introduce a party ban in Belgium after a revision of the Constitution. There is, however, a need for consultation to get everyone on the same page about the concrete form of a possible party-ban regime. The design of the ban is crucial: dissolution of the party and/or a ban on participating in the next elections? In addition, consideration must be given to whether only a specific party ban or also a further anchoring of democracy in the Constitution is appropriate.

Bibliography

LEGISLATION

• Voorstel tot herziening van de Grondwet, tot invoeging van een artikel 7ter inzake het verbod op vrijheidsvernietigende partijen, Parl.St.Kamer 2017-18, nr. 3207.
• Wetsvoorstel tot strafbaarstelling van het behoren tot of het samenwerken met een groepering die discriminatie of segregatie voorstaat, Parl.St.Kamer 2017-18, nr. 3265.
• Voorstel tot herziening van de Grondwet teneinde de voorrang van het positief recht op elk religieus of levensbeschouwelijk voorschrift te versterken, de mensenrechten, de fundamentele vrijheden en de gelijkheid van man en vrouw beter te waarborgen alsook de laïciteit van de Belgische Staat te verankeren, Parl.St.Kamer 2017-18, nr. 3269.
• Voorstel tot herziening van de Grondwet met het oog op de erkenning van de politieke partijen, Parl.St.Kamer 2017-18, nr. 3299.
• Voorstel tot herziening van de Grondwet, teneinde de vrijheidsvernietigende en niet-democratische partijen te ontbinden of ze te verbieden deel te nemen aan de verkiezingen, Parl.St. 2017-2018, nr. 3333.

SCHOLARSHIP

• BREMS, E., “Europees Hof voor de Rechten van de Mens ”, T.Vreemd. 2001, nr. 4, 309-318.
• DE LANGE, R., EFTHYMIOU, N. en VAN TIENEN, F., Risico’s voor de democratie, Rotterdam, 2016, 179 p.
• ELLIAN, A., MOLIER, G. en RIJPKEMA, B., “Weerbare democratie en het probleem van timing”, NJB 2017, afl. 24, 1650-1660.
• SOTTIAUX, S., DE PRINS, D., De juridische strijd tegen antidemocratische organisaties: enkele bedenkingen bij het arrest van het Europees Hof voor de Rechten van de Mens inzake de Turkse welvaartspartij, TBP 2002, afl. 4, 219-231.
• VANDE LANOTTE, J., GOEDERTIER, G., HAECK, Y., GOOSSENS, J., en DEPELSMAEKER, T., Belgisch Publiekrecht, Brugge, die Keure, 2015, 1594 p.
• VANDEN HEEDE, P., “Te veel politiek en te weinig recht: risico’s van een partijverbod”, Juristenkrant 2002, nr 47, 10.
• VERSTICHEL, A., “Vrijheid van vereniging – Ontbinding van politieke partij wegens schending grondwettelijk principe van scheiding van kerk en staat”, RW 2004-05, nr. 5, 194-196.
• ZOETHOUT, C., “De Grondwet in het Arabisch en andere Nederlandse constitutionele vraagstukken”, TPB 2016, afl. 3, 173-178.

CASE LAW

• EHRM, 13 februari 2003, nr. 41340/98, Refah Partisi e.a./Turkey.
• EHRM, 30 januari 1998, nr. 19392/92, United Communist Party of Turkey e.a./Turkey.
• EHRM, 8 december 1999, nr. 23885/94, Freedom and Democracy Party/ Turkey.
• BVerfG 17 januari 2017, 2 BvB 1/13 (NPD II).

MISCELLANEOUS

• JENSMA, F., “Hoe ver mag een democratie gaan om zich te beschermen tegen zelfvernietiging?” – interview met Bastiaan Rijpkema, NRC, 2017, https://www.nrc.nl/nieuws/2017/08/07/complexe-formatie-helpt-de-democratie-12405407-a1569110.