Time to put the AfD on trial
Germany's constitution provides a way to settle the country's biggest political argument. It is time to use it.
Dear Reader,
It is time for the constitutional court to rule on whether the AfD should be banned.
Evidence of why came from Erfurt at the weekend, where the AfD were holding their party conference.
Inside the conference hall, party delegates were handed tasteless stickers suggesting that advocating for “remigration” is sexy. Outside, thousands of protesters tried to prevent the conference from taking place by blockading the streets.
The protest group — Widersetzen — claims that Germany’s state institutions are failing to prevent the rise of fascism, leaving them with no choice but to take matters into their own hands. At the protest, a mob beat up two journalists from a right-wing news outlet, pulling them to the ground and kicking them in the head. When asked about the attack, the organisers justified it with the words: “We came to Erfurt to blockade fascists. Fascists with press IDs are still fascists.”
How have things gotten to the stage where this sort of vigilante violence can take place — and is condoned by people who claim to be fighting against authoritarianism?
The answer lies in Germany’s constitution, which contains a clause that seeks to protect it from a resurgence of fascism. Article 21 of the constitution sets out that parties whose goal it is to “abolish” the free democratic order can be banned from running for office.
The parties of the democratic centre have long accused the AfD of being just such an organisation. Arguing that they are “undemocratic,” they refuse not just to cooperate with them but even to grant them the normal rights of an opposition party, such as heading parliamentary committees.
And yet, they won’t use a parliamentary vote to refer the AfD’s legality to the Constitutional Court, thus closing the only avenue towards resolving the issue.
The result is that the AfD resembles someone accused of a heinous crime but never formally charged. Neither guilty nor exonerated, they are shunned by their peers but never given the chance to clear their name.
And, because those with the power to file charges repeat the allegation but never go to the police, vigilantes take the responsibility upon themselves. They hound party officials and even attack members of the press who refuse to condemn the alleged perpetrator.
The CDU is the main hindrance to prohibition proceedings in front of the Constitutional Court. The conservative party has made itself comfortable in the role of judge and prosecutor. It was under its watch that the BfV classified the AfD as a "suspected extremist". The CDU has since used that designation to justify blocking the populist party from taking on parliamentary functions. But, when urged to vote for the case to go before the Constitutional Court, they shy away, saying it would look too much like they were trying to “get rid of a competitor.”
This is poisonous to democracy. It feeds the suspicion on the one side that the CDU secretly hope to one day “do a pact with the fascists” and on the other side that the centre-right party is leaving the possibility of a Verbotsverfahren hanging over the AfD’s head like a Damoclean sword in order to put people off voting for them.
A prohibition case in front of the Constitutional Court would bring a much-needed resolution.
If the court ruled that the AfD was not planning to abolish the free democratic order, the implications for Germany's parliaments would be immediate. It would no longer be legitimate for the other parties to band together to prevent them from taking on the normal and vital responsibilities of an opposition party.
It would also force a rethink of the sweeping definition of the so-called Brandmauer. The CDU's refusal to rely on AfD votes currently extends so far that it regularly denies itself parliamentary majorities it would otherwise have.
Lastly, if the case were dismissed, the hard-left would find it harder to win public sympathy for its acts of vigilante violence.
On the other hand, if the Constitutional Court finds that the AfD is planning to bring about the end of constitutional democracy and thus decides to ban it, that will also provide clarity.
Despite predictions by some commentators on the right that this would effectively spell the end of German democracy, a ban would be unlikely to end the political forces that gave rise to the AfD. Voters' frustration with what is on offer from the other parties would remain. A new party would emerge to fill the vacuum. It would, however, have to take account of the specific grounds on which the court had banned its predecessor — otherwise it would risk the same fate.
Above all, both outcomes would benefit AfD voters. The latest polling shows that around 30 percent of the German public support the populist party. A ruling by the Constitutional Court would put an end to the uncertainty over whether their votes count or not.
Theoretically, the AfD should welcome the case going to the Constitutional Court, too. For years, they have lived with the knowledge that state spies might be listening in on their private phone calls - measures they claim are comparable to the methods of the Stasi. If the case reached the country's top court, the BfV would have to put its cards on the table by revealing what it had uncovered during years of surveillance. If the AfD are as innocent as they claim, they should welcome an end to the surveillance and the chance to finally end the debate over the Brandmauer.
Some in the AfD no doubt believe that the Constitutional Court itself cannot be trusted to deliver an impartial judgement. It is true that the court is politically appointed. Its judges are nominated by political parties and approved by the Bundestag. The court’s current head sat in the Bundestag for the CDU before taking on his current role. Are it’s ruling always completely free of bias? Questions have been raised about whether the court was too sympathetic to the government during the pandemic.
Yet, in an imperfect system, this is still the best solution. There are previous rulings on prohibiting parties that have established precedents. On two previous occasions the court has ruled against banning the NPD, a neo-Nazi party, demonstrating just how high the legal threshold for prohibiting a political party is. The current court would have to provide compelling evidence for why this case is different.
Germany’s democracy is unusual in allowing political parties to be banned. Some see this as a weakness in the system, others as a strength. What’s clear, though, is that you cannot indefinitely treat a party as though it stands accused while refusing to bring it to trial.
Ultimately, the Constitutional Court alone is empowered to answer that question. It is time to let it do so.