Before the Constitution Tribunal hands down its landmark verdicts today on whether the Democrat Party, Thai Rak Thai Party and three other political parties are to be dissolved, it is interesting to look at a parallel German experience.

Dr Sunthreeya Muenpawong, of the Rabibhadanasak Research Institute of the Office of the Judiciary, who studied law in Germany, looks at how that country went through a similar crisis.

Her report sheds light on the issue of whether parties can be dissolved or whether the ruling might go against the foundation of democracy, even though the parties might have been involved in activities deemed dangerous to the state.

In Germany, it has always been a delicate question as to whether a political party should be dissolved. A heated debate has been going on as to whether dissolution violates democratic principles. Proponents might argue it is a necessary tool to protect democracy because radicals, once they organise into parties, might directly challenge the political system.

Article 21 of the German constitution states that parties accused of violating the democratic principle and which are subject to the possibility of being dissolved must have committed an offence that destroys democratic fundamentals or must have posed a danger to the survival of the nation as a whole. This can be determined by their policies, the speeches of their leaders, the training of their members, their public relations campaigns or their published materials.

There were cases in which parties were ordered to be dissolved by the courts. During the period of the First Republic, the Supreme Court and other federal courts, except for the Bavarian court, ordered a ban on Hitler's Nazi Party.

After the Second World War, through the new judicial system, the German courts dissolved the Socialist Party and the Communist Party, in 1952 and 1956 respectively. The Socialist Party had spelled out a clear policy that it would continue the political ideals of the Nazis.

In 2001, there was a cased lodged with the Constitution Court against the Nationaldemokratis-chen Partei Deutschlands (the German National Democratic Party), a neo-Nazi party with an extreme right-wing ideology.

This party had allegedly been involved in planting bombs that targeted Jewish immigrants from Russia. The government, parliament and the senate submitted a petition to the Constitution Court to dissolve the party. But the German National Democratic Party escaped dissolution because the court could not reach a two-thirds majority vote necessary to carry the action.

In 2003, the court took up the case once more, but again it could not dissolve this party.

There are a number of interesting questions regarding the dissolution of political parties.

Is the lodging of a case with a constitution court to dissolve a political party a duty or a judgement on the part of the plaintiff?

Opinions differ on this point. One side will argue that if there is enough evidence, a plaintiff has a duty to submit a case according to the rule of law. But others will argue that it is up to the judgement of the plaintiff to decide whether it is appropriate or not to lodge a case with the court.

However, some may say that if political parties are found to have acted as enemies of the constitution, it is necessary to file a case with the court to seek a political ban on that party.

Is it necessary for the court to issue a verdict to dissolve a political party?

There is a view that dissolving a party should be the last resort. If the Nationaldemokratischen Partei Deutschlands were to be dissolved on the grounds that it

maintained a radical right-wing ideology, then it might also be necessary to dissolve a communist party, too.

But if no action is taken, some might argue that the rule of law is ineffective and, in the case of Germany, fascism is thus nurtured.

In the end, the court must consider the fundamental democratic rights of a party, even if that party pursues a radical policy.

But even though political parties are protected under the democratic principle, the court has set a precedent in that it is within its judicial power to ban parties.

Although parties are protected by the democratic principle, they can be subject to a ban depending on the situation.

This has been the great challenge for the German judicial system, which must try to strike a balance.

Is a banning of a party in accordance with the democratic principle and can it be an appropriate and a wise step?

Academics are equally divided on this issue. Some argue that it is still necessary to ban parties if they are found to have radical views or if they are ultra-nationalistic or practise racial discrimination. Others say that banning parties amounts to a curb on the liberty of people to exercise their political rights.

The state should avoid banning parties at all costs. Other preventative means should be encouraged, such as creating a political consciousness among the public. The state should also let people develop their own parties to the point that they understand that bad parties must not get any further support. Banning political parties will never solve the problems that democracy sometimes presents.

Sathien Wiriyaphanpongsa

The Nation