I perceive a viable opportunity from a legal standpoint.
Could the AfD actually be outlawed? A smaller yet significant group of parliamentarians are pushing for an party dissolution procedure against the AfD. The German Parliament might soon examine this petition, aiming to pursue this matter at the Federal Constitutional Court. Franz-Alois Fischer, legal scholar and professor of public law at Munich's FOM University, views this scenario as plausible in an interview with ntv.de: "The easiest way to prove a violation of human rights against the AfD."
ntv.de: Several MPs from SPD, Union, Greens, and Left are instigating a party dissolution procedure against the AfD. Apparently, they've been preparing this for quite some time. Is it wise or unwarranted that this strategy has become public knowledge?
Franz-Alois Fischer: I find it unremarkable that they've been planning this for a long time in secret. That they're now formally initiating proceedings, however, is a development I didn't anticipate. Now, it hinges on whether the German Parliament addresses this matter. They can't directly submit the petition to the Federal Constitutional Court. But they can prompt the Parliament to engage in a structured debate on this issue. And I believe that's beneficial. It generates interest, constitutionalizes the issue within the Parliament, and that's what should be done, regardless of what the outcome may be, whether it leads to such a petition, let alone a dissolution.**
The MPs cite, amongst other things, judicial decisions allowing the Office for the Protection of the Constitution to classify the AfD as suspected right-wing extremist. They also claim that the AfD, in their opinion, violates human rights and aims to abolish the free and democratic foundational order. Is this enough to dissolve the AfD?
The AfD has been under scrutiny by the Office for the Protection of the Constitution at the federal and state levels for quite some time. Portions of the AfD, such as the entire federal AfD, are classified as a suspected extremist case. Certain state associations, particularly those in Eastern Germany, are classified as thoroughly right-wing extremist. This is a highly critical and severe evaluation by the Office for the Protection of the Constitution. Nevertheless, this does not immediately result in a party dissolution. It can indirectly influence the situation. However, only the Federal Constitutional Court can decide on a party dissolution. No authority, ministry, or federal government or the Parliament can make such a declaration.**
For a dissolution, there are specific prerequisites. The term "free and democratic foundational order" is crucial. One must prove that the AfD, as a party, is opposed to this free and democratic foundational order and undermines or eliminates it. This is the case, in part, if a violation of human rights can be demonstrated. In my view, this would also be the easiest way to prove against the AfD.**
How could this be demonstrated?
The Basic Law's Article 1 commences with the renowned statement: Human dignity is inherently inviolable. This is not just about the dignity of any specific individual or group of individuals. This human dignity embodies a universal equivalence of all people. If the AfD now maintains that certain people may not be entirely equal to others, that there are 'good' and 'bad' Germans, that one's legal worth may be diminished due to a migration background, these are concepts that are incompatible with human dignity as recognized by the Basic Law. This would need to be proven as a party line. It is not sufficient to assert that this or that 'extremist' is associated with the AfD. That is a demanding, meticulous task. The Federal Constitutional Court would need to evaluate all conceivable statements, every social media post, everything that exists. Who made the statement? Does it represent the entire party or only the individual? Has the party endorsed it or even distanced itself from it?
Must the evidence be in writing, or can oral statements be considered as well?
Oral statements may also be considered. The form of the statement does not matter. It can be an official party manifesto, a party publication, or even an article in a magazine or journal affiliated with the AfD. It does not even need to be disseminated officially by the party; it can be promoted by supporters or sympathizers. In every specific instance, one must ask: Can this really be attributed to the entire party or not? The AfD is more strategic than the NPD, now known as 'The Homeland'. They recorded everything in their party manifesto and remained faithful to it. Quoting the former NPD chair (Frank Franz, ed.): "We're rather unconstitutional than anti-people". It's not the same with the AfD.
Dissolving a party is a challenging venture in a democracy that can also be misused. Thus far, only two parties have been dissolved in Germany, during the 1950s. What conditions must be met for a party to be dissolved?
The bar is extremely high. One frequently speaks of it as the sharpest sword that should only be drawn in truly exceptional circumstances. A party dissolution is exclusively governed by the Basic Law. This is an unusual situation. Only the constitutional legislature can decide on it with a two-thirds majority.**
Secondly, it should involve limiting or eliminating this free democratic fundamental structure. Whether one aims to eliminate it completely or at least significantly harm it.
Thirdly, this should stem from the objectives of the party or the actions of its supporters. What's in the party manifesto, what do party officials say? If the federal chairperson does it, that's definitely serious. In each individual statement, one must consider: Can this be attributed to the entire party?
Fourthly, there's a criterion that, for the AfD, is beyond question. There must be a potential for these objectives to actually be achieved. That's what the Federal Constitutional Court calls it. That's what the NPD's ban attempts failed on, as they were too small and insignificant to cause real harm. That cannot be said about the AfD.
Why did the two NPD ban attempts fail, but this time might be different?
While the NPD shares some similarities with the AfD, they should not be considered the same. The NPD has already been cut off from state party funding, which is also possible without this potential. This could potentially also be done to the AfD. However, since the potential is present with the AfD, one could theoretically pursue a direct party ban. The NPD's ban attempts were lengthy and complex, but easier because the unconstitutional was part of their official party program. This is not the case with the AfD. They are more sophisticated in hiding their true intentions.
What are the chances of the AfD being banned?
If an application is made to the Federal Constitutional Court, a long and complicated procedure would ensue. Could the AfD be banned before the next federal election? Unlikely, not even in a lifetime! I would be surprised if the procedure was finished before the next federal election. Hoping for a ban now to eliminate them is unrealistic. If an application is made, I would see the best chances on the human dignity track. If it can be proven that there is a plan to expel people who are not considered to belong, regardless of their citizenship, and to take away their rights, I see a realistic chance legally. The other two aspects - rule of law and democracy - are not ones that can be legally substantiated. Freedom of speech and the freedom of action of a political party are widely interpreted. I don't believe a ban can be achieved via this route.
Is it politically wise to pursue an AfD ban procedure?
During the procedure, the AfD can use it to portray itself as a victim for years and exploit this politically accordingly. The narrative, we are the victims, that's all undemocratic here, unfortunately reaches many people. One can say, one has to go through it and one has to fight it out. But one must consider it carefully.
The effort is immense, a challenging and detailed task. But that's what we have the rule of law and the Federal Constitutional Court for. But it's no fun to conduct a ban procedure.
Assuming there is a ban procedure against the AfD and the Federal Constitutional Court eventually decides that the AfD is unconstitutional. What would the consequences be, what then?
AfD MPs would lose their seats. This is regulated in the relevant election laws at the federal and state levels. The party would no longer receive money from the state. They could not participate in further elections. Then, the AfD would be prevented from participating in the political process. However, the big socio-political question is: What would happen to their people and their voters? Where would they go? No one who is not naive assumes that they would then say: "Yes, good, then we'll all vote for the CDU and SPD again." That will certainly not happen. New forces will emerge. Perhaps a party that already exists will radicalize to attract these people to itself. Or a new party will emerge that might do it even more effectively than the AfD. The problem will not disappear.
If the Bundestag votes against the application for a ban procedure, what would be an alternative to a party ban? What could perhaps be implemented more quickly?
A plausible alternative would be a ban on individual AfD state associations. This would also be a theoretical possibility. It's not a simple task, it's complex, it would take longer, but maybe not as long. Especially since some state associations have already been clearly classified as extreme right-wing. There would probably already be evidence on which this classification is based, which could be used in such a partial ban procedure. This is a controversial view among lawyers, but I know many voices that consider it possible. I also consider it possible, especially because it is a milder means to a total party ban.
Another possibility, albeit one I'm not particularly fond of, is the stripping of fundamental rights for specific individuals. Hypothetically, the Federal Constitutional Court could choose to withdraw certain basic rights from individuals for a specific period. For instance, Höcke: His fundamental rights, including at least partial voting rights, could be revoked, preventing him from being elected. However, this is a significant legal barrier. This has never been executed in the Federal Republic's history. I foresee the creation of a victim narrative and the rise of martyrs.
Could it be simpler to outlaw the party entirely if certain state branches had already been prohibited?
Perhaps to some extent, but not significantly. You can't simply argue: First, we have the party, and then we just need to conduct a few more checks and then expand it to the whole party. It's still a new process. However, you could potentially draw from findings from the previous partial ban process.
Caroline Amme interviewed Franz-Alois Fischer. The conversation was streamlined for improved comprehension. You can listen to the complete version in the ntv podcast "Wieder was gelernt".
The Commission, as referred to by Franz-Alois Fischer, suggests that the German Parliament could initiate a structured debate on the potential party dissolution of the AfD, with the goal of pursuing this matter at the Federal Constitutional Court. The Commission, in this context, represents the German Parliament's authorization to examine the petition for the party dissolution procedure.
Furthermore, within the discussion on the prerequisites for a party dissolution, Franz-Alois Fischer mentions that one of the criteria is proving that the AfD, as a party, is opposed to the free and democratic foundational order and undermines or eliminates it by violating human rights. This would be the easiest way, according to him, to demonstrate a case against the AfD. The Commission would play a crucial role in gathering and presenting evidence to support this argument.
