Whether or not punitive decisions taken by party organs in disciplinary proceedings can be challenged
Democratic operation of political parties
Decisions by political parties to impose sanctions
Rights of political party activists
RULING Nº 185/03
3 of April of 2003
Although political parties must respect the rights of their members, participation in a political party entails, above all, acceptance of and obedience to the statutes of that party. In the context of that commitment, a member implicitly agrees, as a member of the party, that the exercise of his rights will be limited by the provisions of the rules of the statutes (on the assumption that those rules ensure democracy in the internal administration and the functioning of the party).
The acts of the organs of parties which, probably consistently with the statutes, apply disciplinary measures which infringe the constitutionally protected rights of activists are subject to review by the Constitutional Court. Once the lawfulness of the restriction has been accepted, it cannot be disproportionate, inadequate or excessive. This is all the more true when the rules of the statutes on penalties are expressed in general terms whose integration calls for a political evaluation which the Court must not (or cannot) review, save in cases of abuse and within the limit placed on the limitation or restriction of the fundamental rights of citizens.
It is not for the Constitutional Court to adjudicate on the merits of penalties applied by a political party in the context of the general provisions of its statutes, but only to review their reasonableness and proportionality.
Article 103-D of the Law on the Constitutional Court - under which three activists of the Portuguese Communist Party (PCP), on whom the sanctions of suspension from activity within the party and expulsion had been imposed, brought this action - was introduced as a result of the constitutional revision of 1997, which brought within the sphere of Article 51 of the Constitution the rules establishing the "principles" of the organisation and functioning of political parties (Article 51.5 of the Constitution) and which provide that a law is to determine the rules on financing, particularly as regards the conditions and limits of public financing, and also the requirements to make public details of the assets and the accounts of those parties (Article 51.6 of the Constitution). In the context of that constitutional revision, the rule was extended in order to confer on the Constitutional Court jurisdiction to "hear actions challenging the election and deliberations of the organs of the political parties which, in accordance with the law, may be the subject of an appeal". Article 103-D of the Law on the Constitutional Court also regulated appeals challenging the deliberations of the organs of the political parties brought by activists in the following cases:
in the event of decisions imposing penalties taken by the party organs in disciplinary proceedings against an activist and decisions of those organs that directly and personally affect the activist's right to participate in the activities of the party;
in the event of deliberations of the organs of parties based on a serious breach of essential rules concerning the competence or democratic functioning of the party.
These are rules which regulate the object and basis of the challenge and at the same time its legitimacy. As regards legitimacy, whereas in the first case the challenge can be brought only by the activist on whom the penalty was imposed or whose rights to participate in the activities of the party were directly and personally impaired, in the second case legitimacy is conferred on every activist. Furthermore, whereas in the first case the challenge may be brought "on the basis of the illegality or violation of a rule of the statutes", in the second case it is admissible only where it is "based on a serious breach of rules essential for the competence or the democratic functioning of the party".
Extending the democratic principle to the structure of political parties has inevitably led to conflict between, on the one hand, the constitutional principles of transparency, democratic organisation and administration and the participation of all members of the political party and, on the other, the individual rights, freedoms and guarantees in respect of freedom of expression, the right of assembly, the right to demonstrate and the right of citizens to participate in politics via political parties. Although it is true that the "iron law of oligarchy" (Robert Michels) is no longer in force in the political parties of modern democracies, it is equally true that the functioning of modern mass parties continues to demand strict internal discipline. Accordingly, conflicts may arise between the individual interests of members and the interests of the collective organisation, since the latter will always defend its own unity in the interests of efficiently competing for power. It is therefore necessary to ascertain to what extent the restrictions placed on these rights are lawful, at least within the limits prescribed by the statutes.
Legal writers are not unanimous in defining the internal conditions which are necessary in order for internal democracy to be regarded as guaranteed in a particular party. Although writers agree on the minimum conditions (which include a guarantee of being able to express one's views freely within the party), the right to express critical opinions outside the party is not regarded as a necessary condition, especially since the unity of the political party (although based on diversity and the exchange of views within the party) is one of the first conditions of the efficiency of the party, the public expression of opinions which are critical of the party leadership, made outside the party (particularly in the media), will inevitably call that unity into question.
In this specific case, the Court held that the judgment which the Communist Party (PCP) passed on the "animus" of the activists was not arbitrary, since the activists were seeking to strengthen a "movement" which they directed and promoted, by virtue of their dominant position within the organs of the party, on the margin of the internal structure of the party, for the purpose of making fundamental amendments to the statutes and functioning of the PCP. The argument that the confirmed action of the activists undermined the image of the party, of its functioning, of its managing organs and of its political line was also considered plausible.
The Court concluded that, in the light of the gravity and the possible harmful effects (for the political party) of their conduct, the actual penalties imposed on the above-mentioned activists did not exceed the limits of rationality and proportionality.
This is the first time that the Constitutional Court has examined the substantive question in the context of its new jurisdiction to hear appeals against decisions of the organs of political parties. See, on the same case involving the three activists of the PCP, the procedural issue considered in Judgment 421/02 of 15.10.2002.