Ever since the publication of Correctiv’s research about a meeting between right-wing extremists and members of the AfD and CDU, people across Germany have been demonstrating against right-wing extremist tendencies for weeks. In this interview, Freiburg political scientist Marius Fröhle and legal scholar Dr Rodrigo Garcia Cadore give their assessment about what society can do to counter anti-democratic movements
How can a democracy protect itself from anti-democratic tendencies?
Marius Fröhle: Generally speaking, democratic institutions and processes must be strengthened and anti-democratic tendencies combated. Protecting the independence of the Federal Constitutional Court against anti-democratic interference in the spirit of a ‘resilient democracy’ therefore seems to me to be just as good an idea as focussing more strongly on combating right-wing extremism. In particular, I believe that the proposals made by Federal Minister of the Interior Nancy Faeser to facilitate financial investigations into right-wing extremist networks in order to ‘dry them out’ and to take a closer look at the international networks of right-wing extremists make sense.
Rodrigo Garcia Cadore: From a legal and comparative perspective, party banning procedures are probably the most typical means of “defending democracy”. As the Basic Law regards parties as crucial to the formation of political will, party bans are considered to be one of the sharpest weapons in the armoury of constitutional law – this is where party privilege comes into play: only the Federal Constitutional Court may decide on a ban and the threshold for this is high. Even if there is no need to shy away from thinking about the concrete application of this instrument, there needs to be an intensive social debate about the political appropriateness of such a ban, especially in the case of the Alternativ für Deutschland (AfD), which is now the strongest opposition party.
Do you think a party ban on the AfD is possible from a legal perspective?
Garcia Cadore: The legal component of this discussion does not seem to me to be the most problematic. In my view, it is now time for a broad and in-depth social discussion, accompanied by experts from various fields such as history, political science, law and sociology, on the opportunities and risks of a party ban procedure in a constellation in which the party in question represents the most important opposition force. The decision on whether to file an application remains a political one.
The Correctiv research and further follow-up investigations have raised public awareness about the gravity of the situation; even if the Potsdam meeting, despite the participation of AfD leaders, does not yet provide sufficient evidence for preparing for a comprehensive ban. This event has reinforced the understanding that currents within the AfD want to impair or eliminate the free democratic basic order. The main legal problem is the imputability of the anti-constitutional statements and conduct either to the party as a whole or to the party associations, which should be based on a meaningful and broad collection of material. It should be possible to establish a planned approach. Qualified premeditated acts to impair or eliminate the core of the free democratic basic order have to be proven, which indicate something systematic and not merely random or isolated behaviour.
What other measures could help and what citizens can do?
Fröhle: The social media platforms and, if necessary, the judiciary should more frequently and more consistently prevent and punish right-wing extremists from spreading hate and illiberal and anti-democratic positions online. However, democratic culture would also benefit if democratic citizens became more politically and socially active. There are many ways to do this, for example by joining parties and associations or taking on important honorary positions such as that of juror. In general, a democracy thrives on disputes and compromises. A constructive culture of debate in both private and public life is therefore essential and must be practised regularly.
As far as the protests are concerned, it is of course a nice and certainly reassuring feeling for all democrats when so many different people can be mobilised to protect democracy. Overall, however, I would be rather sceptical about predicting an influence of the demonstrations on future election results – there is still some time until the state elections and the European elections and a medium to long-term effect of the research in general and the demonstrations in particular is questionable at best.
Garcia Cadore: One measure to be considered that could increase the stability and resilience of the liberal-democratic basic order would be to anchor the composition and working methods of the Federal Constitutional Court in the text of the Basic Law in greater detail through a legislative constitutional amendment. That would make sense because constitutional courts are often attacked by stakeholders hostile towards the system who come to power. Such stakeholders like to have judges in such top positions who they like to regard as their own judges.