To Ban or Not to Ban AL – What Do Real-World Experiences Tell Us?

Globally, many political parties have been banned. For widespread human rights violations and silencing opponents, Awami League could face a ban under the militant model.

সারা বিশ্বে রাজনৈতিক দল নিষিদ্ধের অনেক উদাহরণ আছে। সম্প্রতি বাংলাদেশে আওয়ামী লীগকে নিষিদ্ধ করা নিয়েও কথা উঠছে তাদের ব্যাপক মানবাধিকার লঙ্ঘন ও বিরোধী মতাদর্শীদের অন্যায় ভাবে দমন নিপীড়ণের জন্য। রাজনৈতিক দল নিষেধের তিনটি মডেল আলোচনা করে লেখক যুক্তি দিয়েছেন যে, আওয়ামী লীগকে মিলিট্যান্ট মডেলের আওতায় নিষিদ্ধ করা যেতে পারে।

Photo Illustration by The Insighta

A hot political question currently embroiling Bangladesh politics is whether or not to ban Bangladesh Awami League (AL) from participating in politics and/or national election. Opinions are split. The students who led the July-August uprising are generally in favour of banning AL from politics. Incumbent politicians from leading political parties, including the Bangladesh Nationalist Party (BNP), are not in favour of the ban.

Has academic research addressed the issue of banning political parties? What do real-world experiences or country-specific examples suggest? Can we identify constitutional and legal frameworks that can be leveraged to deal with the question of banning AL?

Thinking about country-specific examples, the country that first comes to our mind is post-war Germany and the banning of the Nazi Party and the Socialist Reich Party in 1952 (brief details of the ban have been discussed later).

Fast forward 65 years. In 2017, the German Federal Constitutional Court turned down an application by Germany’s sixteen states to ban the National Democratic Party (NPD) due to the party’s anti-democratic agenda. The court agreed that the NPD’s political goals were anti-constitutional and anti-democratic; however, a ‘risk calculation’ test by the court did not find sufficient indicators that the party would implement its perceived ‘anti-democratic’ agenda.

Across Europe and beyond, debates around banning political parties are an ongoing matter. A key point that emerges from these debates and associated court cases is that a party’s perceived anti-democratic risk or its potential to harm democracy does not constitute strong evidence to justify its ban. We can call it a ‘paradox of democracy’ when anti-democratic parties abuse democratic institutions to gain (and maintain) power.

How do states or courts ban political parties then? In Europe, courts seek “sufficient evidence that there is a real threat to the constitutional order or citizens’ fundamental rights and freedoms”. For AL, the threat to democracy and citizens’ fundamental rights and freedoms is not a perceived one anymore, it is real and evidence-based.

Examples and Models of Political Party Bans:

When we analyze real-world experiences of anti-democratic parties facing prohibitions, we observe mixed responses across European countries. Democracy, with its inherent characteristics, lends itself to the eternal dilemma of ‘tolerance for the intolerant’.

Bernatskyi identified 150 cases of political party bans among the member states of the Council of Europe. The major reasons for the enactment of these bans include: 1) Pro-Russian engagement and goals contrary to the constitutional limits of democratic tolerance (>20 parties in Ukraine), 2) National security concerns and the securing of secularism (around 40 parties in Turkey), 3) Historic safeguards against authoritarian rule (two parties in Italy).

Fox and Nolte identified four types of state practices that maintain democratic order:

1) Procedures such as elections and parliamentary hierarchy (UK, Japan);

2) Utilizing specific legal acts and corresponding court practices (USA);

3) Freedom of association protected in the constitutional acts and freedom bills (France, Canada, India); and

4) Prohibition of parties because of the ideas in their program, regardless of their implementation and violent behaviour (Germany, Spain, Italy).

Bernatskyi proposed three models related to party banning:

1) The Liberal model – applying criminal laws for evidence-based party banning (UK, USA, Australia, Iceland, Greece);

2) The Institutional model – banning parties due to promotion of programs aimed at violating independence, committing acts of political violence, inciting hostility, violating human rights and freedoms etc (Hungary, Slovakia, Austria, Belgium, the Netherlands); and

3) The Militant model – prohibiting parties from promoting the abolition of the democratic system as a political goal (Germany, Turkey and the Czech Republic).

The Liberal Model (Northern Ireland/UK):

This model is the most open-minded. There are no constitutional provisions that govern political party status or party bans.

In 1956, the Northern Ireland government banned one of the Northern Irish political parties, Sinn Féin, under “the Civil Authorities (Special Powers) Act”. The party was engaged in activities that constituted “a threat to the maintenance of peace and order and a threat to law and order and proper governance”. The ban followed a series of attacks by the Irish Republican Army (IRA) on British military units, police stations, courts and other facilities in Northern Ireland in 1956.

In 1973-74, the ban on Sinn Féin was lifted after IRA declared cease-fire and the UK established direct governance in Northern Ireland. The British government hoped that lifting the ban would help end the violence despite Sinn Féin’s continued terrorist attacks. The British government wanted to give Sinn Féin an opportunity to participate in the electoral process while prosecuting its members for criminal activities.

The Institutional Model (Spain, Ukraine):

Under this model, radical far-right parties (e.g. CP'86 in the Netherlands or the Flemish Bloc in Belgium) have been banned for political goals aimed at destroying the state, inciting hatred, or grossly infringing on fundamental rights and freedoms. This model operates within the constitutional framework.

In 2003, the Supreme Court of Spain banned the Herri Batasuna political parties for their affiliation and collaboration with the terrorist group ETA and the endorsement of violence and terrorist acts as means to achieve political objectives. In this model, the party members’ criminal convictions are not the reasons for party banning. Also, political programs or actions undertaken within the constitutional frameworks to eliminate the democratic order will not per se constitute adequate legal grounds to ban a party. Political party bans under this model is non-criminal in nature.

Between 2014 and 2023, the Ukrainian government banned a number of pro-communist parties due to their political affiliation with Russia. The reasons include call for the violent overthrow of the government, the glorification of totalitarian ideology and symbols, systematic and anti-constitutional activities aimed at overthrowing the constitutional order of Ukraine, and sharing the narrative of official Russian propaganda.

The Ukrainian government “took a tough stance on condemning totalitarian regimes and ascertained the necessity to ban their ideological symbols for the sake of historical and national security interests (i.e. the Court acknowledged that Communist propaganda and symbols are an element of aggression against Ukraine)”.

“Ukraine’s experience is the only contemporary example that sheds light on the case of banning political parties controlled or infiltrated by agents of a foreign state. This is despite the problem of the growing tendency of foreign interference, especially inspired by authoritarian regimes, in the domestic politics of European countries (or other democratic countries, such as Australia).”

The Militant Model (Germany, Czech Republic):

This model protects democratic order through constitutional provisions or sometimes through the militant interpretation of constitutional or high courts.

In 1952, the German Federal Constitutional Court banned the Socialist Reich Party alleging that the party members and leaders were engaged in the glorification of Hitler, revisionism and revanchism. Their political aims “were to dismantle the multiparty political system, liquidate human rights guarantees and revive antisemitism”. In 1956, the German Federal Constitutional Court subjected Kommunistischen Partei Deutschlands (KPD) to dissolution due to its ideology of socialist-communist social order that posed a threat to the free democratic order.

In 2010, the Czech Republic courts banned the Workers’ Party. The party members and leaders were accused of xenophobia and racism, especially against the Roma ethnic group. Also, the party’s rhetoric created an atmosphere of fear and hostility towards foreigners, homosexuals and Jews. The party’s ideology matched the doctrine of National Socialism with connections to far-right movements and the party's programs aimed to foster hate speech against minorities. All these crossed the limits of democratic tolerance in the Czech Republic, as the Constitutional Court concluded.

Should AL be banned from politics in Bangladesh?

We have learned about various models and frameworks that have governed political party bans to restore democracy across Europe. After assessing these models and frameworks, two questions arise in the context of Bangladesh:

1) Does Bangladesh have a constitutional or legal framework that can deal with undemocratic parties, forces and ideologies?

2) Does AL qualify for prohibition under one of the three models discussed above?

Constitutional and legal experts in Bangladesh can answer the first question. To answer the second question, we need to look at, in the context of the three models discussed above, the political ideology and rhetoric, and historical programs, actions and foreign connections of AL and, based on their history of politics in Bangladesh, assess any threat they pose to the future democratic order of Bangladesh.

The recently leaked phone conversations of the exiled ex-Prime Minister prove her vengeful intentions if she is allowed back to power. The absence of the slightest remorse in the AL members and leaders and the unwillingness to accept responsibility for the massacres they led or committed during the July-August uprising demonstrate their undemocratic attitude and hostile intentions towards the people of Bangladesh. From the liberal model perspective, one cannot discount the risk of revenge from the AL leaders and the threat to peace and proper governance if they return to parliament.

The Fifteenth Amendment to the Constitution of Bangladesh, passed in June 2011, to abolish the caretaker government system, and the three consecutive rigged national elections that followed, have violated the democratic order in Bangladesh for more than a decade. The constitution has been altered to such a degree that it is no longer tenable and cannot maintain a democratic order in Bangladesh. Should we not hold AL accountable for eroding the democratic order in Bangladesh?

AL’s political affiliation with the neighbouring state is proven, and AL continues to be an accomplice in the neighbouring state’s official propaganda against Bangladesh to incite hate and communal tensions, which undermines our nation’s peace and sovereignty. Any persecution for AL’s actions and motives can be explained by the institutional model.

AL’s political programs and actions throughout its long 15-years tenure had been directed towards dismantling the multiparty democratic system. As the ruling party, AL used the law enforcement agencies and the judicial systems to establish an authoritarian regime and persecute and prosecute those who opposed the regime—marked by arrests, targeted killings and forced disappearances. AL created an atmosphere of fear and hostility towards the opposition parties. From the militant model perspective, AL qualifies to be banned from politics due to its long history of anti-democratic actions and ideologies and based on the evidence of extra-judicial killings and other human rights abuses.

Is banning AL a favourable outcome?

Bangladesh needs constitutional and legal frameworks that preserve the state’s democratic order. In the absence of these and until such frameworks can be developed and executed, political parties posing threat to democracy should be prohibited from politics.

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About the Author:

Tariq Sadat, PhD, is a Senior Regulatory Associate at CSL Limited. As a social media commentator, he writes on health, politics, religion, history, and culture. He also represents the Bangladeshi diaspora in Australia. He can be reached at tariqhai@yahoo.com

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Disclaimer: The views expressed in this article are the authors' own and do not necessarily reflect The Insighta's editorial stance. However, any errors in the stated facts or figures may be corrected if supported by verifiable evidence.