Debate on AfD ban: New procedures are needed

The Basic Law is very clear about when parties should be banned: “Parties which, by their aims or by the conduct of their supporters, aim to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany, are unconstitutional,” states Article 21. It thus makes a ban solely a question of legal assessment: If a party fulfils the criteria of unconstitutionality which the Federal Constitutional Court has specified in its case law, it loses the right to continue to exist.

A possible ban against the far-right AfD has so far been discussed almost exclusively with political rather than legal arguments. Certainly, the debate also revolves around whether the available information is sufficient to legally justify a ban – but always in the spirit of a political consideration: What would be the consequences for social discourse once the ban application was filed in Karlsruhe? How would it affect election results? How would the proceedings end? What would happen if no ban were ultimately implemented? What would be the consequences if the AfD, which commands a third of the vote in some regions, were to be dissolved overnight? And what would be the point of a ban if a party disappeared but its ideology remained?

Merz warns against the appearance of “elimination of competition”

Lawyer, Chancellor, and CDU leader Friedrich Merz has expressed skepticism about a ban, openly citing political reasons for his stance. A proposal would smack too much of "elimination of competition," Merz said. Anyone who thinks this through to its conclusion realizes the dilemma the debate is stuck in.

Either an anti-constitutional party is so insignificant that it poses no "competition" to other parties. In that case, it wouldn't even need to be banned, and if a ban petition were to be filed, it would fail precisely because of its lack of significance, just as the second NPD trial did.

Or an anti-constitutional party is significant—only then would a ban be necessary at all. But then it is always a serious competitor for other parties. A Chancellor must therefore fundamentally be prepared to "eliminate" it if he considers a situation that would make a ban motion seem appropriate. If he were to categorically rule this out, he would be reducing the Basic Law to absurdity—because then a party ban would never be implemented.

But that's not how the Basic Law is designed. It grants parties considerable privileges. In return, it sets limits that they may not exceed. "The question of unconstitutionality"—that is, a ban—"shall be decided by the Federal Constitutional Court," wrote the authors of the Basic Law in Article 21. They clearly assumed that an investigation would be conducted if a party was seriously suspected of exceeding the limits of the Basic Law.

No application, no examination

But that's simply not what's happening. A ban on the AfD has been the subject of heated debate for years, without the highest judges in the republic being able to rule on this legal issue. They could only do so once they received a motion for a ban, which only the Bundestag, the federal government, or the Bundesrat (Federal Council) may file. In effect, the decision rests with those who cannot be freed from political considerations: party politicians. Without their motion, no review.

Such a state of limbo is not good for anyone. It means either that an unconstitutional party is allowed to continue operating, contrary to the clear intent of the Basic Law. Or a constitutional party constantly has the sword of Damocles of a ban hanging over it, without being able to secure an acquittal. Both are difficult to bear – because in a constitutional state, justice must also be administered.