Legislative Council of Hong Kong

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

PUBLISHED : Thursday, 01 February, 2018, 5:26pm
UPDATED : Thursday, 01 February, 2018, 11:02pm

Alex Lo’s column claims that Europe’s democracies also ban political parties (“Hong Kong not unique in barring some from running in elections”, January 31). This assertion inaccurately reflects constitutional realities in Europe and draws a flawed parallel with developments in Hong Kong.

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.

The possibility to ban a political party is not designed to silence or get rid of political opponents

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.

Germany and Spain tried to learn a lesson from their authoritarian past by attempting to make liberal democracy irreversible. The possibility to ban a political party is not designed to silence or get rid of political opponents but as a barrier against an imminent authoritarian takeover.

The case of the Basque separatist party Batasuna – outlawed in 2003 – is also worth considering.

Here again the parallel drawn is misguided. Batasuna stood in free elections for over two decades and its ban was preceded by a lengthy legal battle to prove its links with ETA’s terrorism.

Many Spaniards opposed the ban, arguing that political parties should be left to battle it out in the court of public opinion rather than the court of law. It is a sign of the maturity and fiercely democratic spirit of modern Germany and Spain that banning political parties is becoming a thing of the past.

Dr Roland Vogt, assistant professor of European Studies, The University of Hong Kong