Why Hong Kong’s by-election bans and European democracies have little in common

Germany and Spain are indeed unique in having constitutional provisions regulating political parties. Article 21 of Germany’s Basic Law and Article 6 of Spain’s 1978 constitution determine the following: political parties are expressions of the public’s will in a pluralistic society; citizens are free to create new political parties as a manifestation of their inalienable civil liberties; political parties are obliged to be democratic in their internal decision-making processes; and political parties must uphold the democratic constitutional order.

It is true that both Germany and Spain have banned political parties before. But the differences with Hong Kong are notable.

In Germany and Spain, parties can only be outlawed by the highest court and not by electoral officials. Their constitutions set high hurdles for such a ban. In a recent ruling, Germany’s Constitutional Court did not outlaw the neo-Nazi National Democratic Party on the basis of its negligible electoral significance. A ban would have represented a major curtailment of civil liberties for a threat that was minimal. The court rejected the ban on the grounds of lacking proportionality.

Banning political parties is not a matter of legal principle but rather an instrument of last resort, to prevent an anti-democratic political movement from exploiting democracy to abolish it.