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Type: Article, Main topic: Constitution
The Federal Republic of Germany is a defensive democracy. To protect our liberal model of society, the Basic Law allows the fight against parties who want to eliminate this freedom.
Source: BillonPhotos / shutterstock.com
According to Article 21 (2) of the Basic Law (GG), parties are unconstitutional if, according to their goals or the behavior of their supporters, they aim to impair or eliminate the free democratic basic order or to endanger the existence of the Federal Republic of Germany. They can be banned by the Federal Constitutional Court.
Requirements for a party banLegal basis Basic Law for the Federal Republic of Germany (GG)
to the legal textPolitical Parties Act (PartG)
to the legal text
A party can only be banned if it not only takes an anti-constitutional stance, but also wants to implement this stance in an active, combative, aggressive manner. For a party ban, it is not enough that the highest constitutional values in political expression are questioned, not recognized, rejected or others opposed to them. Rather, the party must systematically want to eliminate the functioning of the free democratic basic order. This assumes that there are concrete, weighty indications that at least make it appear possible that the party's actions can be successful.
Unlike an association, a party cannot be banned by a prohibition order issued by the responsible federal or state interior minister. This can only be done by the Federal Constitutional Court through judgment (Article 21, Paragraph 2, Sentence 2 of the Basic Law). This special formal requirement for a party ban (so-called party privilege) protects open competition between political parties and programs. It would not be compatible with our understanding of democracy if, for example, the majority parties could ban other parties and thus get rid of unpopular political competition.
In turn, the Bundestag, Bundesrat or Federal Government are the only constitutional organs entitled to submit a corresponding application for a ban on parties. Only in the case of a party whose organization is limited to the territory of a (federal) state is the state government of the respective state also entitled to apply (Section 43 of the Federal Constitutional Court Act). The decision as to whether an application for a ban should be made is at the (political) discretion of those entitled to apply.
Prohibition proceedings in the past
In the history of the Federal Republic of Germany, the Federal Constitutional Court has issued a party ban in two cases: against the Nazi-oriented Socialist Reich Party (SRP) in 1952 and against the Stalinist Communist Party of Germany (KPD) in 1956.
With a decision of March 18, 2003, the Federal Constitutional Court suspended the prohibition proceedings against the National Democratic Party of Germany (NPD) requested by the Federal Government, the Bundestag and the Bundesrat. A substantive and legal examination did not take place.
The main reason for the termination of the proceedings was the constant observation of the NPD by informants, even in the prohibition proceedings, right up to the party's executive bodies. In this circumstance, the Federal Constitutional Court did not consider the requirements of a constitutional procedure to be met.
In a second prohibition procedure against the NPD, which was requested by the Federal Council, the Federal Constitutional Court ruled on January 17, 2017 that the NPD does indeed represent anti-constitutional goals aimed at the elimination of the existing free democratic basic order. However, the court lacked concrete evidence that would make it appear possible that the NPD's actions would lead to success. Therefore the application was rejected.
Prohibition of parties and the use of informants
According to the requirements of the Federal Constitutional Court, all sources on the executive boards of the party concerned must be switched off in good time before the Federal Constitutional Court receives an application for a ban - at the latest when the intention to file an application is publicly announced. In addition, for reasons of transparency in the proceedings, the Federal Constitutional Court demands that statements from sources that are to be introduced into a proceeding as evidence are clearly identified as such.
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