A Comparative Presentation on Constitutional Courts as Guardians of Competition between Political Parties

Author:Martin Morlok
Position:Professor, Director of the Institute for German and European Law on Political Parties University of Heinrich Heine, Germany

1. Democracy means competition - 1.1. Democracy as an arrangement of competition - 1.2. Functions of competition - 1.3. Legal framework for competition - 1.4. Elements of a legal arrangement for competition - 2. The law of the political process as competition law - 2.1. Law regulating political competition - 2.2. Elements of political competition law - 2.3. Control and enforcement - 3. The... (see full summary)


Martin Morlok

Professor, Director of the Institute for German and European Law on Political Parties University of Heinrich Heine, Germany

A Comparative Presentation on Constitutional Courts as Guardians of Competition between Political Parties

1. Democracy means competition
1.1. Democracy as an arrangement of competition

One major feature of any form of democracy is that there is some form of competition among candidates and/or parties to come into positions that are vested with the power to make binding decisions. Behind this struggle for decision-making positions, of course, there is a competition among different interests and ideas1. This means that democratic competition is only on its surface a competition among persons and organisations. Underlying that competition and fuelling it are strong antagonisms between rival conceptions as to how society should be.

The use of this concept of democracy does not mean that democracy should be defined only via this competition-based approach, as Joseph A. Schumpeter does2. Democracy means more than just an electoral method; it has to do with certain degrees of freedom, with the emphatic idea of individual and collective autonomy and self-determination. In any case, competition is an indispensable element of any modern form of democracy3.

1.2. Functions of competition

Competition is associated with several advantages4. It stimulates the development of ideas and problem-solving methods 5 ; the rivalry among those making different proposals enhances their efforts; by means of competition for voters or votes, the interests and convictions of the voters are best served; and - last but not least - open competition serves as a device acting against the misuse of power: The democratic competition keeps the persons who are actually in power in fear of the sovereign: the people.

1.3. Legal framework for competition

Any competition needs a framework in which to take place 6 , even more: without a set of rules and institutions, there can be no effective competition, at least not over longer periods of time. An unregulated competition will develop unfair practices, cartels, and obstacles against new competitors, thereby eliminating the above-mentioned advantages of competitive structures of decision-making systems7. In the long run, an unregulated competition is likely to see a change from its originally democratic character. Therefore, there is a need for a legal arrangement that ensures lasting free competition.

1.4. Elements of a legal arrangement for competition

Let me specify some of the elements of such a legal arrangement for lasting and effective competition among political parties. The basic functional prerequisite is the equality of rights and chances of all participants. Further on, there should be precautions against unfair competition or fraud and also rules that prevent settlements or agreements among competitors against other competitors, especially new ones. Of course, measures to ensure the openness of the competition are of importance.

We learn from economic theory that the effects of competition result not only from the competition itself but also from the reactions of the actual competitors to potential new competitors. They strive to keep new competitors out by preventing them from appearing attractive. Therefore, tendencies to turn an open competition into an oligopolistic one should be given serious consideration. This means there must be realistic chances to enter into competition; the obstacles to entering the market should be as low as possible8.

Finally, there should be means of control and enforcement of these rules safeguarding competition9.

2. The law of the political process as competition law
2.1. Law regulating political competition

If it is true that competition depends on a particular legal arrangement, then in a stable democracy there must be a set of legal rules that functions as competition law. The law regulating the political process - which is a competitive one - may be considered a special form of competition law. This holds true for the law of political parties and for voting law, but also for the law regulating the parliamentary process. It might be helpful to conceive of these legal matters as a kind of competition law. It is only by means of these legal rules that a fair, effective, and sustained political competition is maintained10.

2.2. Elements of political competition law

Let me enumerate some of the elements of such a political competition law. In their basic structure these are the same elements as associated with any competition. We need freedom of action for all participants, enshrining the freedom to compete. This freedom is guaranteed by the usual fundamental rights; here I shall name only freedom of expression and the freedom to assemble and to associate. Perhaps the most striking element of a legal framework for political competition is the guarantee of equality of the rights of all competitors11. A special aspect of this equality of chances concerns the funding of political activities - namely, the financing of political parties and of election campaigns. Here we do need an elaborate system of rules to deal with public financing as well as financing from private sources12. The legal regime for the financing of political activities has to do justice to parties with a rich base of funding but also to parties the members of which are on the middle or lower rungs of the income scale13.

Again, it is important that there is open access to political competition 14 ; thresholds for entering the market may have different forms. Of course, there are legal thresholds in the voting law but also prerequisites for registration as a political party. Access to the mass media is important, and, as always, the financing regime is crucial. If there are public subsidies for political parties, parties should qualify for these by achieving a rather low percentage of votes; otherwise, newcomers will not have an equal opportunity to enter the competition. All of this holds true also regarding potential rival parties.

2.3. Control and enforcement

All legal regulation is of little value as long as obedience to the existing rules is not controlled and compliance with the norms not enforced. This is even more true in fields where there are strong motives not to comply. This is the case in the political arena where the struggle for power takes place. To come into power is a very strong motivator, which endangers abidance by the law. Therefore, the legal arrangement that guides the political competition needs institutions of control and law enforcement.

There may be special agencies for controlling political parties and voting campaigns - for instance, special committees such as the United Kingdom 's Electoral Commission 15 - or it may be the task of general institutions to control the behaviour of political actors in whether they obey the law. Of course, there also is need for a system of sanctions in case of violation of the legal competition rules. The courts, of course, play an important role in the enforcement process for the law of the political process.

3. The particular task of constitutional courts

Constitutional courts play a special role in this context. As the highest of all courts, this level possesses clear importance and - it is hoped - enjoys supreme prestige. The importance of constitutional courts stems from their unique function of interpreting authoritatively the uppermost layer of legal rules. To use Montesquieu's terms 16 , the constitutional court is la bouche de la constitution. As - due to the hierarchical structure of legal systems - every other national...

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