On Sept. 29, two men splashed Hong Kong singer Denise Ho (何韻詩) with red paint during a rally in Taipei in support of democracy in Hong Kong. Prosecutors charged the suspects under the Organized Crime Prevention Act (組織犯罪防制條例) and applied for them to be detained, but a court released one on bail of NT$200,000 and the other on NT$100,000. This enabled the police to find other accomplices, some of whom are connected with the China Unification Promotion Party (CUPP).
The CUPP’s activities often bring it into conflict with the law. It advocates unification with authoritarian China, which also brings it into conflict with the Constitution. However, Germany’s experience of dealing with neo-Nazi political parties shows that it is hard to ban parties on the grounds of unconstitutionality.
After World War II, to prevent a repeat of the Nazis’ subversion of the Weimar Constitution, Germany established the Federal Constitutional Court with reference to the US system of constitutional review.
According to Article 21, Paragraph 2 of Germany’s Basic Law, political parties that “by reason of their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.”
Based on this article, the Federal Constitutional Court in 1952 dissolved the Socialist Reich Party (SRP), which was composed of former Nazis. The court also banned the Communist Party of Germany in 1956. When the SRP was ruled unconstitutional, any successor organizations were also banned.
However, the National Democratic Party of Germany (NPD), which also inherited Nazi traditions, took over the political resources of the far-right shortly after the SRP’s dissolution and won seats in state parliaments and even the European Parliament.
As early as the 1960s, Germany’s federal and state governments have filed various lawsuits against the NPD to prevent its expansion. However, in January 2017 the Federal Constitutional Court ruled against outlawing the NPD. Elements of NPD ideology, such as racial supremacy and exclusion of immigrants, disrespect human dignity. Furthermore, it negates and threatens the free democratic order.
As Article 21, Paragraph 2 of the Basic Law stipulates subjective intention (mens rea) even in the absence of objective acts (actus reus), the NPD’s extremist ideas themselves meet the criteria of being anti-constitutional.
Nevertheless, the Federal Constitutional Court considered that because the prohibition of a political party deprives people of the freedoms of expression, foundation, activities and political participation, outlawing it could only be a last resort. Considering the NPD’s lack of political significance, the court did not find it necessary to dissolve the party, even though its ideologies match the article’s description.
Article 5, Paragraph 5 of the Additional Articles of the Constitution of the Republic of China stipulates the conditions for outlawing a party in similar terms to Germany’s Basic Law: “A political party shall be considered unconstitutional if its goals or activities endanger the existence of the Republic of China or the nation’s free and democratic constitutional order.”
This article leaves considerable room for interpretation. If the Ministry of the Interior applied to ban the CUPP, it would be accused of political repression, and for the same reason, it is doubtful whether the Council of Grand Justices would dare rule that the CUPP is unconstitutional.
Wu Ching-chin is an associate professor of law at Aletheia University and president of the Taiwan Jury Association.
Translated by Chang Ho-ming
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