Rules Around Political Parties

3.1.1 Overview of the Clauses Referring to Political Parties

Political parties are an indispensable part of a democracy; therefore they require special protection. Many countries vest guarantees in their constitutions and addi­tionally standardize structural and organisational principles in ordinary national law.^[175] A pluralistic party system is one of the pillars of a modern democracy.^[176] Strong parties are particularly important in vulnerable democracies.

An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.

¹Weber(2010),p. 139.

²However socialistic countries like China, Cuba, Laos, North Korea or Vietnam are generally dominated by a single political party. The SED in East Germany or the CPSU (ÊÏÑÑ) of the Soviet Union may serve as prime examples. For a detailed review of China’s Communist Party, see He (2014), p. 245. However, that is also the case India, Japan or Malaysia, see Dixon and Ginsburg (2014), p. 5, different to Uganda under Musevini, which had enshrined a no-party system for many years.

3.1.1.1 Definition, Purpose and Function of Political Parties

According to the Venice Commission political parties perform several important functions:

• They are free associations of persons whose aim it is to express the political will of citizens including through participation in the management of public affairs and the presentation of candidates to free and democratic elections

• Moreover, political parties are described as a collective platform for the expres­sion of individuals’ fundamental rights to association and expression and have been recognized by the European Court of Human Rights as integral players in the democratic process

• Further parties are the most widely utilized means for political participation and exercise of related rights.

Additionally, parties often build a bridge between the executive and legislative branches of Government and can serve to effectively prioritize the legislative agenda within a system of government.^[177]

The complexity of these descriptions shows how significant and diverse the contributions of political parties are within a democracy. On one hand they form the basis for free and open elections.^[178] But parties are also crucial for a stable democracy as they are able to bring together the many different opinions and views within the population and to give them a voice. Parties channel views by order and structure before they enable change or ensure continuity. This function enables political parties to act as mediators between state organs and the people.^[179]

3.1.1.2 Historical Context

Historically, political parties were not mentioned in constitutions. There was often a hostile attitude towards parties, who were seen as sectarian and partisan and leading to divisions. Fewer than 10% of the constitutions in force in 1875 mentioned political parties and also the US constitution does not mention them.^[180] However, political parties have had a significant influence on the development of modern states and constitutions. In Asia, nationalist political parties brought about the emergence of national unity and the expulsion of colonial rulers.^[181] In Europe lobbies were formed at the latest from the nineteenth century on because of the desire to overthrow absolutist rulers.^[182] Not only historical but also legal factors had an impact on the development of the party landscape of such as the introduction of barring clauses or

Fig.

majority voting systems. In addition to these, social factors also to a large extent influence the formation of public opinion. Many African countries in particular have moved to more party plurality.^[183] The political field at least in Europe is however currently on the move. Formerly strong Social Democrats are losing more and more votes in every election, while the number of right-wing populist parties is growing steadily.

3.1.1.3 Procedural Questions

As a first step one ought to consider whether parties and their rights should be included in the constitution at all. Some countries do not mention political parties in their constitutions at all. However, in view of their significance within a democracy this is not recommendable and further arguments are found at the end of this chapter. The next question is how such a regulation could be structured. A multitude of constitutional norms exist in different countries. However, often limited to rules concerning structure and organisation. Further details are standardized in ordinary laws or legal regulations concerning parties or associations in general.^[184] Conse­quently, a decision has to be taken which principles are important enough to be vested in the constitution. Various protection mechanisms can be considered, as well as the regulation of how to ban parties and the financing of political parties (Fig. 3.1).

3.1.1.4 Structural Approach and Guiding Questions

Therefore, the structural approach in Fig. 3.2 is recommended.

3.1.2 Details of the Clauses Concerning Political Parties

In many ways political parties can be included in the constitution. Which elements are included and which are regulated by ordinary law is directly related to the history and experience of a nation and the stronghold that parties already enjoy? In emerging democracies where parties are not yet very institutionalised, it is recommended to establish constitutional clauses with more details.

Fig. 3.2 Structural approach concerning political parties

3.1.2.1 Qualification as Political Party

First, it needs to be determined which conditions a political party should meet. Almost every country provides that a party is compatible with basic democratic principles and represents them. First and foremost, this includes that party officials are subject to re-assessing elections, seeking renewed endorsement by and authority from their members. This should include the equality of all party members including secret and equal suffrage. A modus operandi as foreseen in the Australian Labour Party, which formed Government for many decades in Australia, where certain party positions are preserved for candidates proposed by the Australian Unions would be considered anti-constitutional in many other countries. This principle of democratic structure would also disapprove government-backed state parties in former socialist countries. Finally, the democratic structure should induce an endorsement of demo­cratic principles in the relevant countries.

Moreover, it is often demanded that the purpose of political parties is to express the will of the people.^[185] This is only possible if party pluralism is established. Some states therefore prohibit the existence of a state party, in particular states in Eastern Europe. Some of these formerly socialist-ruled countries had long anchored the need for separation between parties and administration because of this system. However, such initial regulations have now been abolished in some cases, such as Hungary (see below).

Other countries seek to ensure national unity. Therefore, it is forbidden in their constitutions to found political parties based on race, sex or similar characteristics.^[186]

In addition, it is possible to enshrine concrete prerequisites for the recognition as a political party in the constitution. In other countries such requirements are regulated more precisely in ordinary legal regulations. These can be the requirement of registration with a public authority or the exclusion of certain names. In Equatorial Guinea for instance it is forbidden to bear the names of parties that pre-existed before 12 October 1968. The date on which the countries’ independence from Spain was granted.

Which regulations concerning political parties are considered important and are therefore included in the constitution, is therefore often closely related to the history of a country (Table 3.1).

3.1.2.2 Protection of Political Parties

As their role is essential in ensuring the proper functioning of democracy, political parties should benefit from several guarantees, often already vested in the human rights catalogue of a constitution, such as the freedoms of communication, such as the expression and the press; the freedom to assemble and the freedom to form associations.^[187] Therefore it is advisable to provide parties with special protection through various constitutional regulations (see Table 3.2).

Other fundamental rights that parties may hold are freedom of speech and freedom of press. In Belarus’ and other country’s constitutions it is even stated that political parties and other public associations shall have the right to use state mass media as seen again during and in the aftermath of the 2020 presidential election. What appears to be a supportive measure to stabilize democracy is in the core of Belarus only a legitimization of the ruling party to rely on state owned media as its own press organ. The provision therefore compromises the principle of the separation of power between legislative and executive as the state mass media are part of the executive.^[189]

Within a democracy, party pluralism is also of fundamental importance. As already mentioned, some countries prohibit the existence of a state party in their

Table 3.1 | Requirements for political parties

Table 3.1 (continued)

constitutions. Many others state that the principle of party pluralism should apply. This is the only way to ensure that the diverse opinions of the population are expressed and is therefore of major importance. Especially countries in which a “one party policy” prevailed in the past, have meanwhile incorporated the principle of party pluralism into their constitutions. For instance, in Syria 2012 the constitu­tion stated: “The leading party in the society and the state is the Socialist Arab Baath Party. ” After the revolution Syria, too, has moved on to party pluralism. If political parties are weakly institutionalized, there is a risk of a very dominant leader within a country. The consequences are often the exhaustion of constitutional powers to the maximum or even the creation of new powers.^[190]

In order to further clarify these principles, it is possible to declare in the constitu­tion that all parties must be treated equally.

Another aspect is the influence of other nations. To avoid such influence, some countries include in their constitution that only citizens of their own country can be members of political parties.

3.1.2.3 Ban and Dissolution

In addition, the question arises whether and how political parties can be dissolved. Many countries (or treaties such as the ECHR in Art. 11) provide for such regulations but require special conditions to protect the freedom of association. In most cases a ban is only possible if a party does not comply with certain aims or behaviours. Usually, it is required that the party’s objectives, organization or activities violate the constitution or are inconsistent with democratic values (Table 3.3). According to the Venice Commission a ban shall only be justified when political parties use violence, in particular when it is used as a political means to overthrow the democratic constitutional order. Therefore it shall be insufficient if a political party has the intention to change the constitution in a peaceful way.^[191] If we look at the cases in which political parties have actually been dissolved or punished, we observe that this has only occurred in extraordinarily few cases, and in fact only in a few countries. This again illustrates the importance of freedom of assembly within a democracy.^[192] Consequently it should also be ensured that political parties are not held accountable for the misconduct of individual members.^[193]

Under the headline “militant democracy” it is discussed whether such a ban itself does not contradict democratic principles and whether it is legitimate for a democ­racy to act in an anti-democratic way to avert threats against itself.^[194]

A further important procedural aspect is the regulation of who can initiate a procedure to ban parties. This can ensure that such an action is taken only in exceptional cases and that a further separate body decides on the necessity at a ban after a thorough consideration.^[195]

Another significant issue are the procedural aspects of party dissolutions. It must be determined who has the competence to obtain a dissolution. In most countries this decision is left to an organ of the judiciary. This is a protective mechanism to prevent interference with party activities for political motives due to the fact that parties stand in competition to each other.^[196] However, it must be ensured that guarantees due process, openness and fair trial are fully taken into account.^[197]

Table 3.3 | | Material conditions for the dissolution of a political party

Some countries do not specify which court is responsible for the ban and dissolution of political parties in their constitutions. Most, however, leave this question to the constitutional court (Table 3.4).

In many countries law and order authorities rush in to arrest members and assets of parties immediately after the ban has been issued. State authorities and courts often join forces. The more important aspect in those circumstances is, that judicial review is permitted (Table 3.5).

The ban of political parties by Constitutional Courts is discussed in more details in Sect. 11.2.6 and Table 11.19 in Vol. I of Writing Constitutions.

Table 3.4 | | Formal conditions for the dissolution of a party

3.1.2.4 Party Financing

Party financing is a complex issue and only principles can be addressed in this publication. Political parties use different ways to finance themselves and their activities. Whether political parties can survive with the funds raised by their members depends on their size and operation. In Switzerland for example political parties are lightweight internal organisations that do not need a significant budget. Therefore, the country does not provide public financing.^[198] In bigger nations finan­cial contributions are provided by the state to avoid dubious undercover financing practices.^[199] Some countries, such as Syria, explicitly exclude state financing of political parties. However, this is rather the exception. In most countries, political parties are to be financially supported for the sake of their democratic tasks. But it must be ensured that no manipulation of financing regulations in particular by leading parties is possible.^[200]

The question of who can receive such benefits plays an important role here. The principle of equal opportunities should be ensured.^[201] Therefore, public funding for political parties could not just be given to those who are represented in parliament, but extended to political bodies representing a significant section of the electoral body and presenting candidates for election.^[202]

These details however are usually laid down in ordinary law, ordinarily because of their complexity. In this context, it is noticeable that Mexico already enshrines quite precise requirements for the ordinary law in its constitution.

An important issue is also the examination of whether such proceeds have been properly received by the beneficiary. Usually the control by specific public organs is also regulated by ordinary law. However, Poland, for example, has laid down in its constitution that a public inspection is to be carried out (Table 3.6).

Party financial rules are often intricate and need to be studies with enormous details as parties and donors have been inventive to circumvent legislation and to find loopholes. Unlike other countries e.g. the US prohibits donations by companies to parties or candidates, however the provision of indirect donations e.g. by funding of TV-spots or other communication is permitted.^[203]

3.1.2.5 Necessity of a Constitutional Rule Concerning Political Parties According to the Venice commission “The role and function of political parties in a democratic system should ideally be defined in the highest legal order of the state to ensure the stability and relative permanence of these provisions.”^[204] In other words the Venice Commission suggests it to be a part of a country’s constitution.

Thereby it can be ensured that political parties retain at least basic rights allocated to other associations and in addition the rights to nominate candidates and participate in elections.^[205]

Nevertheless, some countries only foresee rules concerning associations. The countries, that do not have incorporated rules concerning political parties in most cases do have rules concerning associations and guarantee the freedom of associa­tion in general (Table 3.7).

Table 3.6 | | Party financing

Table 3.6 (continued)

Table 3.7 | | Necessity of rule in the constitution

3.2