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Whether by design or by omission, our Constitution
does not provide for the constitution and working of the
political parties, though they are at the heart of a
parliamentary democracy. A parliamentary democracy without
political parties is inconceivable. Yet the Constitution
(except the Tenth Schedule which was inserted only in the
year 1985) does not even speak of political parties whereas
article 21 of the German Constitution (Basic Law for the
Federal Republic of Germany, 1949), which Constitution was
also enacted almost simultaneously with our Constitution,
provides for the establishment and working of the political
parties. The Article reads thus:
"Article 21 (Parties)
(1) The parties shall help form the political will
of the people. They may be freely established.
Their internal organisation shall conform to
democratic principles. They shall publicly account
for the sources and use of their funds and for
their assets.
(2) Parties which by reason of their aims or the
conduct of their adherents seek to impair or do
away with the free democratic basic order of
threaten the existence of the Federal Republic of
Germany shall be unconstitutional. The Federal
Constitutional Court shall rule on the question of
unconstitutionality.
(3) Details shall be the subject of federal laws."
1.4.1.1. Pursuant to article 21(3), the German Parliament
has enacted the `Law on Political Parties' in the year
1967, which has been amended from time to time. Section 1
of the Law sets out "General Provisions". Article 1 which
deals with the constitutional status and functions of the
parties, reads thus:
"Article 1. Constitutional Status and Functions of
the Parties.
(1) Political parties form a constitutionally
integral part of a free and democratic system of government. Their free and continuous
participation in the formation of the political
will of the people enables them to discharge the
public tasks which are incumbent upon them pursuant
to the Basic law (Grundgestez)) and which they
undertake to fulfil to the best of their ability.
(2) The parties shall participate in the formation
of the political will of the people in all fields
of public life, in particular by:
bringing their influence to bear on the shaping of
public opinion; inspiring and furthering political
education;
promoting an active participation by individual
citizens in political life; training talented
people to assume public responsibilities;
participating in Federal, Land and Local Government
elections by nominating candidates;
exercising an influence on political trends in
parliament and the government;
initiating their defined political aims in the
national decision-making processes; and
ensuring continuous, vital links between the people
and the public authorities.
(3) The parties shall define their aims in the
form of political manifestos.
(4) The parties shall use their funds exclusively
for the fulfilment of their obligations under the
Basic Law and this Law."
1.4.1.2. Article 2 defines the expression "Political
Party". It reads thus:
"Article 2. Definition of the term "Political
Party".
(1) Parties are associations of citizens who set
out to influence either permanently or for a
lengthy period of time, the formation of political
opinions at Federal or Land level and to
participate in the representation of the people in
the Federal Parliament (Bundestag) or regional
parliaments (Landtage) provided that they offer
sufficient guarantee of the sincerity of their aims
in the general character of their circumstances and
attendant conditions, particularly in regard to the
size and strength of their organisation, the number
of registered members and their public image party members may only be natural persons.
(2) An organisation loses its legal status as a
party if it has not participated for a period of
six years in either a Federal election or a Landtag
election with electoral proposals of its own.
(3) Political organisations are not deemed to be
parties if;
1. most of their members or the members of their
executive committees are foreigners; or
2. the registered seat of business is located
outside the purview of the present Law."
1.4.1.3. Article 3 empowers the political parties to
institute legal proceedings in their own name and similarly
be sued in their own name.
1.4.1.4. article 4 provides that the name of a party must
be clearly distinguishable from that of other existing
parties and that this rule is also applicable to acronyms.
In election campaigns and the elections, only the
registered name or acronym may be used.
1.4.1.5. Article 5 provides for equal treatment of all the
political parties. It reads as under:
"Article 5. Equality of Treatment.
(1) Where a public authority provides facilities or
other public services for use by a party, it must
accord equal treatment to all other parties. The
scale of such facilities and services may be
graduated to conform with the importance of the
parties to the minimum extent needed for the
achievement of their aims. The importance of a
party is judged in particular from the results of
previous elections for central or regional
government. In the case of a party represented in
the Bundestag by a parliamentary party, the
significance accorded to it must amount to at least
half that granted to any other party.
(2) As regards the granting of public services in
connection with an election para (1) applies only
for the duration of the election campaign to
parties which have submitted election proposals.
(3) The public services referred to in para 1 may
be made dependent upon certain preconditions which
all parties have to fulfil.
(4) Section IV shall remain unaffected."
1.4.1.6. Section II deals with internal organisation of
the political parties. Article 6 is of great significance
and may be set out in full:
"Article 6. Statutes and Programme.
(1) A party must have written statutes (articles
of association) and a written programme. Regional
organisations conduct their affairs on the basis of
their own statutes provided that the statutes of
their immediately superior regional organisation do
not contain any provisions bearing on this matter.
(2) The Statutes must contain provisions on:
- The name and acronym (if used), the registered
seat and the activities of the party.
- The admission and resignation of members.
- The rights and duties of members.
- Admissible disciplinary measures against members
and their exclusion from the party (Article 10,
paras 3 to 5).
- Admissible disciplinary measures against
regional organisations.
- The general organisation of the party.
- Composition and powers of the executive
committee and other organs.
- matters which may only be decided upon by a
meeting of members ad representatives pursuant to
No.9.
- The preconditions, form and time limit for
convening meetings of members and representatives
and the official recording of resolutions.
- Regional organisations and organs which are
authorised to submit or sign election proposals for
elections to parliaments inasmuch as three are no
relevant legal provisions.
- An overall vote by members and the procedure
to be adopted when the party or a regional
organisation or to merge with another party or
parties pursuant to Article 9, para 3. The result
of the overall vote determine whether the
resolution is confirmed, amended or rescinded.
- The form and content of a financial structure
which satisfies the rules of Section V of this Law.
(3) The executive committee informs the Federal
Returning Officer of:
- The party's statutes and programme.
- The names of the members of the executive
committee of the party and its regional
organisations together with their duties.
- The dissolution of the party or a regional
organisation. Amendments to sentence 1(1) and (2)
above must be notified by 31 December of the given
calender year. The relevant documents are held by
the Federal Returning Officer and made available to
the public for perusal and inspection. On
request, copies of the documents are provided free
of charge.
(4) Parties whose organisation is restricted to the
territory of a Land are governed by the provisions
set out in the present Law for parties as a whole."
1.4.1.7. Article 7 deals with the organisation of political
parties both at the national and regional level.
1.4.1.8. Article 8 provides that the members' meeting and
the executive committee shall constitute the essential
organs of the party and its regional organisations and for
other allied matters.
1.4.1.9. Article 9 provides for constitution of members'
assemblies and delegates assemblies and the rights of the
members in that behalf.
1.4.1.10. Article 10 empowers the political parties to
decide on the admission of new members. It says that no
justification need be given for refusing an application for
membership. It further declares that members of the party
and the representatives in the party bodies have equal
voting rights. The party can frame statutes providing for
disciplinary action against members and other matters
specified therein.
1.4.1.11. Article 11 provides that every political party
shall elect an executive committee at least every second
calender year and that the committee must consist of at
least three members. It also deals with the powers of the
executive committee and its duties.
1.4.1.12. Article 12 provides for constitution of general
party committees and other incidental matters.
1.4.1.13. Article 13 provides for composition of delegates'
assemblies.
1.4.1.14. Article 14 provides for arbitration in case of a
dispute between the members or between the party and
members or between the party ad regional organisations, as
the case may be.
1.4.1.15. Article 15 deals with the process of
decision-making in party organs. It reads thus:
"Article 15. Decision-Making in Party Organs.
(1) The party organs adopt their resolutions on the
basis of a simple majority vote inasmuch as a
higher majority vote is not stipulated by law or by
the statutes.
(2) The ballots for members of the executive
committee and representatives to delegates'
assemblies as well as to the bodies of higher level
regional organisations are secret. Voting at other
elections is not secret unless voters object when
asked to confirm such procedure.
(3) The statutory provisions governing the
submission of motions must be such as to ensure the
democratic forming of opinions and in particular
adequate discussion of the proposals put forward by
minorities. At the delegates' assemblies of higher
level regional organisations, at least the
representatives of the regional organisations at
the next two lower levels must be granted the right
to introduce motions. No commitment to the
resolutions of other bodies is permissible at
elections and polls."
1.4.1.16. Article 16 deals with dissolution and/or
termination of the subordinate regional organisations.
1.4.1.17. Section III contains only one article, namely,
article 17. It says that "candidates for election to
Parliament must be chosen by secret ballot. The nomination
procedure is governed by the election laws and the party
statutes."
1.4.1.18. Section IV containing articles 18 to 22 deals
with public financing of political parties whereas Section
V obliges the political parties to maintain and publish
their accounts regularly. Article 23 needs to be set out
in full:
"Article 23. Statutory obligation to Publish
Accounts.
(1) The executive committee of the party shall make
a public statement of the origins and the use of
funds received by its party within a calendar year
(accounting year) as well as of the assets of the
party in a statement of accounts.
(2) The statement of accounts must be scrutinised
by a certified auditor or auditing company in
accordance with articles 29 to 31. In the case of
parties who do not meet the requirements of article
18, para 4, first sentence, the statement of
accounts may be scrutinised by a chartered
accountant. It must be submitted by 30 September
of the year following the accounting year to the
President of the German Bundestag and be circulated
by the latter as a Bundestag paper. The President
of the German Bundestag can extend the limit by up
to a maximum of three months in extenuating
circumstances. The party statement of accounts
shall be submitted for discussion to the federal
party convention following its publication.
(3) The President of the German Bundestag shall
examine whether the statement of accounts is in
accordance with the regulations of Section V. The
result of the scrutiny shall be recorded in the
report in accordance with para 5.
(4) The President of the German Bundestag may not
determine a party's allocation of public funds
under articles 18 and 19 so long as a statement of
accounts in accordance with the provisions of
Section V is still outstanding. Payments under
article 18 shall be based on the statement of
accounts to be submitted for the preceding year,
payments under article 20 on the statement of
accounts submitted for the preceding year. If a
party fails to submit the report by 31 December of
the following year it shall forfeit its claim to
public funds: allocations and disbursements to the
other parties shall remain unaffected.
(5) The President of the German Bundestag shall
submit annually to the German Bundestag a report on
the state of party finances and on the statements
of accounts of the parties. The report shall be
circulated as a Bundestag paper."
1.4.1.19. Article 23(a) prohibits the political parties
from obtaining donations illegally. It also provides that
in case the political party fails to publish the statement
of accounts as provided by article 25(2), it shall forfeit
public funding in an amount double the amount illegally
obtained or not published in accordance with article 25(2).
It also sets out the meaning of `illegal donations'.
Article 24 specifies what should the statement of income
and expenditure contain. It mentions the several items
which must necessarily be included and shown in such a
statement. Broadly speaking it must disclose full
particulars in the specified form, of income received,
sources from which received, expenditure incurred on
various items and its net assets.
1.4.1.20. Article 25 deals with donations to political
parties. It says that political parties are entitled to
accept donations except from the sources specified therein.
The sources which are so excluded are political
foundations and parliamentary groups, corporate bodies,
religious and charitable associations of persons and so on.
1.4.1.21. Article 26 defines the expression "income".
Article 28 creates a statutory obligation upon the
political parties to "keep books in respect of their
accountable income and expenditure and of their assets".
The article further provides that the accounts "shall be
kept in accordance with the principles of orderly
accounting and with regard for the purpose of the present
law. Accounts shall be preserved for five years..."
1.4.1.22. Article 29 provides for auditing of the
statement of accounts while article 30 makes it obligatory
that the statement of accounts shall contain an audit
certificate in the prescribed manner. Article 31 deals
with the appointment of auditors.
1.4.1.23. Sections VI and VII deal with implementation of
bans on unconstitutional parties and final provisions,
which are not relevant for our purpose and need not be
referred to.
1.4.2. Though our Constitution was also framed between the
years 1946 to 1949 (i.e., approximately at the same time
when the German Constitution was drawn), it is rather
inexplicable why our Constituent Assembly did not think it
appropriate to make provisions governing the political
parties on the lines contained in the German Constitution.
It may be mentioned even at this stage that though this
aspect did not figure in the suggestions contained in the
working paper prepared by the Law Commission in September
1998 and circulated among the political parties and the
members of the public, the same has assumed considerable
significance in the course of debate at the several
seminars held by the Law Commission in this behalf and has
also been suggested in several responses received by the
Law Commission in response to the working paper.
For more information:
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