B Explanatory memorandum
by Mr Agramunt Font de Mora, rapporteur
1 Introduction and origin
of the code
1. The quality of today’s representative democracy largely
depends on the functioning of political parties, in particular their
internal organisation, transparency, funding and quality of their
political programmes. A large part of the challenges current democratic
systems face coincide with those faced nowadays by political parties.
2. Democracy being one of the three pillars of the Council of
Europe, the Organisation has so far made substantial work on issues
related to political parties. This work has in particular been carried
out by the Parliamentary Assembly, through its Political Affairs
Committee,
Note the European Commission
for Democracy through Law (Venice Commission),
Note as
well as the Forum for the Future of Democracy.
Note
3. The most recent Assembly report on the subject was prepared
by former Assembly member Mr Van den Brande and debated by the Assembly
in April 2007, leading to the adoption of
Resolution 1546 (2007). In this resolution, the Assembly invited the Venice
Commission to elaborate a code of good practice in the field of political
parties which would set out the most important elements for their
conduct. The aim of this code would be to collect and share ideas,
experiences and strategies which strengthen the role of political
parties in a democratic society and promote democratic principles
such as equality, dialogue, co-operation, transparency and openness.
The new code should contribute towards establishing common standards
in the field of functioning of political parties and encourage a
re-evaluation and possible review of their internal rules and practices.
Note
4. The former rapporteur, Mr Van den Brande, had in particular
proposed that, once adopted by the Venice Commission, the new code
should be endorsed by the Assembly which would then recommend its
member states to comply with its provisions and refer to its examples
of good practice. The Assembly should also ask the Committee of
Ministers to endorse the new code. The same procedure had previously
been followed for the adoption of the code of good practice in electoral
matters in 2002 and for the code of good practice on referendums
in 2007.
5. The Assembly approved the proposals made by the former rapporteur,
including on the procedure to be followed, and the Council of Democratic
Elections of the Venice Commission was seized on the subject matter.
6. After having been examined by the Council for Democratic Elections,
the code of good practice in the field of political parties was
adopted by the Venice Commission at its 77th Plenary Session in
December 2008. The explanatory report was adopted by the Council
for Democratic Elections at the same time, in December 2008, and
by the Venice Commission a few months later, in March 2009.
Note
7. In September 2009, the Bureau of the Assembly referred the
new code to the Political Affairs Committee for report. I was appointed
rapporteur in January 2010.
2 Specificities of
the code
8. The new code of good practice in the field of political
parties introduces a new approach to the issue in comparison with
former texts on political parties.
2.1 Its aim
9. Its explicit aim, as requested by our own
Resolution 1547 (2007), is to reinforce political parties’ internal democracy
and increase their credibility in the eyes of citizens, thus contributing
to the legitimacy of the democratic process and institutions as
a whole and fostering participation in political life, as well as
to promote democratic principles such as equality, dialogue, co-operation,
transparency and the fight against corruption.
2.2 Its addressees
10. Always in accordance with the Assembly request, the
new code is addressed to political parties while public authorities
are not considered to be the final addressees of the code.
2.3 Its object and nature
11. The object of the new code differs significantly
from the object of former codes: despite the use of the word “code”,
it must not be understood as a codification of norms, but as a systematic
“repertoire of best practices” (not legal norms) addressed to public
agents, such as political parties and their members (and not to
public authorities). The idea is to offer political parties guidelines
stemming from the common and best practices in Europe and, additionally,
offer public authorities and courts a yardstick to assess the practice
of parties.
12. It is thus clear that its nature is not mandatory; the code
cannot prescribe rules, nor can it require enforcement by public
authorities (apart from the specific cases in which there may exist
precise norms).
2.4 Its sources
13. As requested by the Assembly, the new code of good
practice in the field of political parties is based on the experience
of political parties in Council of Europe member states and drawn
from existing good practices, taking into account both national
legislation and practice in the field of regulation of activities
of political parties and party statutes.
14. Additional sources have been texts adopted by the Assembly
and the Venice Commission previously.
Note Finally, the code has also drawn valuable
information from the reports of certain international organisations
and foundations.
3 Structure and highlights
15. The code of good practice in the field of political
parties, in its first section on general principles, starts by defining
a political party as a specific type of association which enjoys
the guarantees of Article 11 of the European Convention on Human
Rights. It thus underlines that prohibition or enforced dissolution
of political parties may only be justified in the case of parties
which advocate the use of violence or use violence as a political
means to overthrow the democratic constitutional order.
Note It then recalls the guiding principles
for political parties: rule of law, democracy, non-discrimination,
transparency and openness. The parties should in particular offer
access to their programmatic and ideological documents and discussions,
to decision-making procedures and to party accounts.
16. In its second section dealing with the internal organisation
of political parties, the code underlines that everyone must be
free to choose whether to be a member of a political party or not
and which party to join. European best practices and legislation
share the principle of non discrimination (for instance based on gender).
Unless prohibited by domestic legislation, it is in line with developments
in Europe that parties accept membership of non-nationals who share
their values (so that non-nationals can for instance participate
at least in local political life). Inclusive practices that successfully
include all age groups can be deemed an example of good practice.
17. The organisation of political parties should be subject to
the main principles of representativeness and receptiveness, responsibility
and accountability, as well as transparency. In best practices,
exclusion procedures need to be submitted to disciplinary bodies
and there must be clear procedures for reasoned decisions.
18. Party leaders must be democratically elected at any given
level. According to international regulation and practice, parties
must comply with the principle of non-discrimination on the basis
of gender, both for party office and election candidatures. Several
national legislations and practices of several European parties
have gone a step further to introduce quotas to either improve gender
balance or, more directly, achieve equal representation of women
and men in the elected body. Whilst these practices are country
and party specific, the introduction of measures for gender equality
is progressively becoming the dominant trend. On the contrary, continued
and repeated situations of gender unequal representation cannot,
by any means, be considered proof of good practice.
Note
19. In its third section on party funding, the code specifies
that such funding must comply with the principles of accountability
and transparency.
Note By
no means may parties interpret private donations as granting any possibility
to influence and/or alter the party programme and/or party policies.
Minimum requirements for access to public funding, when foreseen,
must be reasonable and non-discriminatory. Party statutes should include
mechanisms for audits of party accounts at the national level and
for supervising accounting on regional and local levels. Parties
must also be subject to state authorities’ audit, especially in
the field of financing.
20. Finally, in its fourth and last section dealing with political
functions, it is underlined that one of the most important functions
of political parties is the elaboration of a programme. Programmes
lead party action when the party is in power. Party programmes are
not legally binding contracts (but sort of “soft contracts” or moral commitments
between parties and voters) and cannot be legally enforced. All
European states rely on the principle of representative democracy,
which excludes the imperative mandate. In best practices, party programmes
are the result of the internal debate of party members and they
are approved according to established procedures.
21. The electoral system itself exercises an influence on the
party’s internal structure. For instance, in a candidate-based,
first-past-the-post electoral system, parties are only involved
in candidates’ political backing and contribution to the campaign
financing, whereas in a proportional system with closed party lists
a party has very important prerogatives, including in defining the
place of each given candidate on the list.
22. The code makes it clear that the general principles that form
its basis apply both to performance in office and to situations
where parties are in opposition. Party members should clearly make
a distinction between their allegiance to the party and their office
duties. Mechanisms for the prevention of political corruption, such as
ethical codes for party members in public offices are welcome. The
exclusion from office of candidatures and from party membership
of persons convicted for corruption is fully coherent with basic
democratic principles.
23. Last but not least, the practice of international co-operation
among parties sharing the same ideology and even of assistance to
sister parties in third countries, provided that the latter is compatible
with national legislation and in line with the European Convention
on Human Rights’ principles and European standards, is to be welcomed
since it contributes to creating solid democratic party systems.
4 Conclusions
24. Like my predecessor, Mr Van den Brande, I am convinced
that the new code of good practice in the field of political parties,
as adopted by the Venice Commission on the basis of the elements
provided by the Assembly in its
Resolution 1546 (2007), will significantly contribute to reinforcing political
parties’ internal democracy and increase their credibility in the
eyes of citizens, thus contributing to the legitimacy of the democratic
process and the development of democracy in all Council of Europe
member states.
25. I therefore propose, in accordance with the procedure already
agreed by the Political Affairs Committee when adopting the 2007
report, that the Assembly endorses the code of good practice in
the field of political parties by recommending that national parliaments
disseminate it among political parties so that it can be applied
throughout member states.
