Can EH Bildu be banned as a political party?

Taking advantage of the incorporation of 44 ex-members of the dissolved ETA terrorist group in the regional electoral lists of EH Bildu pro-nationalist coalition of the Basque Country, the Spanish right seized the moment to plunge into the “ETA Question” as the main point of contention just a few days before the upcoming elections due May 28th. On the far right, Vox’s Santiago Abascal called to initiate a legal process to ban and dissolve Bildu, while former PP leaders like Esperanza Aguirre and José María Aznar have also nudged to the banning initiative in the name of a fictitious national unity. Although the Bildu leadership quickly dropped the candidates from their lists (out of pressure from the PSOE counterparts or sincere backtracking? Hard to know), it has been Díaz Ayuso who has elevated the tone by reiterating the need to legally ban Bildu, going as far as to repeat that “ETA truly has not disappeared”.

It should not come as a surprise that it is Ayuso who crosses the Rubicon - possibly interfering with the separation of powers and most definitely with the inheritance of the 1978 transitional social pact - since her style is defined by exerting her personalist force overriding party consensus. As I noted last year in her open conflict with the former leader of the PP’s Pablo Casado, Díaz Ayuso’s populist style is one that holds the line of the rhetorical intensity to sustain internal civil war at all costs. And we should not be surprised if she comes out to be strong in the upcoming Madrid elections consolidating a full majority after the Bildu affair. 

Ayuso’s protagonism in the initiative to ban a political party evidences the way in which incendiary rhetoric can generate particular effects that tap into the general collective fantasy of a social majority. It is also highly improbable that Bildu can be outlawed from the democratic system of representation; and, in fact, the memorandum written by the Fiscalía General del Tribunal Supremo, signed by Ana Isabel García León and Antonio Narvaez Rodriguez, state without hesitation that there is are no reasonable evidence to contemplate that Bildu violentes sections of article 9 of the current Ley de Partidos Políticos. The advisory opinion states that ETA has been dissolved for more than a decade, and that those in the electoral lists have accepted the democratic framework of constitutional norms and regulations (the entire opinion can be read here). To a certain extent, this explains why Ayuso’s astute hermeneutical injunction had to take the position of ultimate suspicion; that is, that ETA has not disappeared, but rather that it continues to exist. We should be aware how the efficacy of partisan suspicion is crafted as a rhetorical validation when disputing a form of continuity in historical transformations of the present (whether it is ETA for the right or Francoism for the Left, these are specters that are always dispensing their alleged real influence). 

What is at stake here? Can political parties be banned in democracies as just a matter of political form or majoritarian rule? Karl Loewenstein, the eminent German jurist of the interwar years and enemy of Nazis, most definitely thought so. For Loewenstein the democracy had to be “militant” (very similar, indeed, to what Carl Schmitt a decade had defined as the sovereign relation to the emergency power) about securing the structure of its own institutional authority if it wanted to avoid a downfall from its internal enemies. Hence, the ‘banning test’, although minimalist, had to create safeguards for the authority of normative system of rules:

"Democracies are legally bound to allow the emergence and rise of anti-parliamentarian and anti-democratic parties under the condition that they conform outwardly to the principles of legality and free play of public opinion. It is the exaggerated formalism of the rule of law which under the enchantment of formal equality does not see fit to exclude from the game parties that deny the very existence of its rules" [1].

And, indeed, this is what Ley de Partidos Políticos (2002) guarantees in its Article 9c against terrorist activities and usage of violent means. In the context of the  erosion of the democratic social contract, there is an increasing polar movement between a politics of legality and a legalization of politics to the point that both autonomous spheres of social practice are conjoined in an ongoing open struggle. I do think Enric Juliana is right in identifying the Bildu party banning affair under the sign of the ongoing crisis of legitimation (‘gobierno ilegítimo’, was, indeed, the motto of the opposition as soon as Sánchez coalition took power), which can only increase the motorization of legal practices and the expansion of the police powers (administrative enforcement and application ad hoc) over every inch of the space of social interaction among the main representative forces. 

In other words, the question about legality or illegality of political units is only a veneer to a larger fundamental problem: the ongoing civil war as a consequence of a wretched principle of legitimacy that no longer has any force to uphold the relative homogeneity of social life. Hence, banning political parties is only a symptom of a larger phenomenon in the discontent of contemporary management of civil society: a resource that puts to the test the musculature of an active implementation of police powers adjusted to the contingencies of the moment. This implies a thorough transformation of the modern laissez faire conservative right - whether it is Díaz Ayuso in Madrid or DeSantis in Florida - into an authoritarian and ‘consecuente’ partisan acceleration. At the moment, the new right is leading an initiative that ultimately consolidates a total legal enmity, which slowly invigorates the institutional functions of a dual state. 

Notes 

1. Karl Loewenstein. “Militant Democracy and Fundamental Rights, I”, The American Political Science Review, June 1937,  424.

*Image: First page of the advisory opinion of the Fiscalía General del Estado on the Candidaturas of EH Bildu, May 17, 2023.