Militant Democracy Undemocratic Political Parties and Beyond by Svetlana Tyulkina

Militant Democracy

The term ‘militant democracy’ was coined by Karl Loewenstein in the 1930s. He argued that attempts to establish democracy in the Weimar Republic failed due to the lack of militancy against subversive movements. The concept of militant democracy was introduced to legal scholarship and constitutional practice so as to provide democracy with legal means to defend itself against the range of possible activities of non- democratic polit-ical actors. This book offers a broad comparative look at the legal concept of militant democracy. It analyses both theoretical and substantive aspects of this concept, investigating its practice in a number of countries and on a diverse array of issues. Examining cases in Australia, Turkey, Spain, Germany, Israel, India, the USA, and the Council of Europe, Svetlana Tyulkina maps the historical development of militant democracy in constitutional theory and explores its interaction with various traditional and contemporary notions of democracy. The book analyses the possibilities and pitfalls of the concept of militant democracy when applied to protect democracy when it is under threat of harm or destruction by undemocratic actors, and suggests possible solutions and measures to overcome those dangers. In its evaluation of the capacity and justification for democracies to apply militant democracy measures, this book will be of great use and interest to students and scholars of public comparative constitutional law, international law, human rights law, and comparative politics.

Svetlana Tyulkina is a Postdoctoral Research Fellow on the Australian Research Council Laureate Fellowship: Anti- Terror Laws and the Democratic Challenge Project in the Gilbert + Tobin Centre of Public Law, University of New South Wales, Australia.

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Militant DemocracyUndemocratic political parties and beyond

Svetlana Tyulkina

First published 2015 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge 711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2015 Svetlana Tyulkina

The right of Svetlana Tyulkina to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

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ISBN: 978-1-138-01642-2 (hbk) ISBN: 978-1-315-76781-9 (ebk)

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Contents

Acknowledgements vii

Introduction 1

PART IMilitant democracy: foundations 9

1 Militant democracy: historical and theoretical perspectives 11

2 The concept of militant democracy: problematic or justified? 26

3 The concept of militant democracy in the practice of modern states 41

PART IIMilitant democracy and undemocratic political parties 63

4 Applying militant democracy: testing the concept in practice, setting standards, and identifying major challenges 65

5 Militant democracy and political parties in Europe 87

6 ‘Softer’ militant democracy measures: alternative solutions from India and Israel 110

vi Contents

PART IIIMilitant democracy as applied to counter- terrorism 123

7 The banning of political parties as a response to terrorism in Spain 125

8 Militant democracy: a guide to Australia’s counter- terrorism policies? 144

PART IVMilitant democracy and the principle of secularism 167

9 ‘Militant secularism’ in Turkey 169

10 Militant democracy and the principle of secularism in the practice of the European Court of Human Rights 189

Conclusion 206

Index 222

Acknowledgements

I wrote this book during my appointment as a postdoctoral research fellow on the Australian Research Council Laureate Fellowship Project ‘Anti- Terror Laws and the Democratic Challenge’ in the Gilbert + Tobin Centre of Public Law, Faculty of Law, the University of New South Wales. I received great help, support, and encouragement during my time on the project and I want to thank the entire Laureate team for making the experience of writing this book special: Professor George Williams, Professor Andrew Lynch, Dr Fergal Davis, Nicola McGarrity, Dr Jessie Blackbourn, Tamara Tulich, Rebecca Ananian- Welsh, Keiran Hardy, and Sangeetha Pillai. I also want to thank Rafe Andrews, Anna Rienstra, and especially Daniel Reynolds for providing assistance with the editing and proof- reading of this book. I thank my wonderful mother and all the family for their endless support and love and also my dear husband, Hendrik, for being so loving, caring, supportive, and patient. Special thanks go to Dr Fergal Davis, who commented on early drafts of the book chapters. I immensely appreciate his time and efforts in helping me to make this book better. I also thank Dr Jessie Blackbourn for her construc-tive feedback on some parts of the book. All errors and omissions are my own. The views expressed in this book are those of the author.

Introduction

This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed.

(Paul Joseph Goebbels)

This statement by the infamous Minister of Propaganda for Nazi Germany is laced with sarcasm. Nevertheless it stands as a stark warning for those com-mitted to the principles of liberal democracy. Democracy is a precarious thing but concerns for its longevity have occupied thinkers since Plato. He warned that ‘the trajectory that begins with the delights of democracy ends with the nightmare of tyranny’.1 There has been a worldwide trend in favour of democracy, as evidenced by the fact that the number of democracies has more than doubled in a generation.2 However, the paradox at the core of this debate is that democracy is ‘the very thing that can bring democracy to its own knees’.3 This is due, to a large extent, to the fact that democracy is an inherently liberal and accommodating system of governance premised on a plurality of political ideas and opinions. These characteristics can facilitate the activities of groups and individuals who want to harm or overturn demo-cracy by abusing democratic institutions and procedures. The archetypal example of how purely procedural democracy and unlimited tolerance towards intolerant political actors can become dangerous is the electoral success of the Nazi Party and collapse of the Weimar Republic. In response to the events in Europe in the early 1920s, Karl Loewenstein, a German émigré legal scholar, coined the term ‘militant democracy’.4 He argued that attempts to establish democracy in the Weimar Republic failed due to the lack of militancy against subversive movements. The concept of militant democracy was introduced to legal scholarship and constitutional practice so as to provide democracy with the legal means to defend itself against the range of possible activities of non- democratic political actors to protect its structures and preserve its conceptual integrity. This book offers a broad comparative look at the legal concept of militant democracy. It combines an analysis of major theoretical considerations of this concept with a substantive practical component investigating its practice in

2 Introduction

a number of countries and on a diverse array of issues. The book’s central argument is that militant democracy is the major concept to guide states’ policies to neutralise various internal threats despite the fact that militant democracy was originally tailored to mid- twentieth century fascism. The book, however, fully acknowledges and demonstrates that militant demo-cracy is a somewhat problematic concept due to the high risk of abuse for political purposes and serious encroachment upon political rights and freedoms. Only through considered application can it stand as an important safeguard of democracy. To advance the central argument, this book first maps the historical development of militant democracy in constitutional theory and investigates how militant democracy interacts with various traditional and contemporary notions of democracy, positioning it within related debates on democratic and constitutional theory. Further, it analyses the possibilities and pitfalls of the concept of protecting democracy when it is under threat of harm or destruction by undemocratic actors. One of them is, for example, the inevit-able suspicion that once democracy becomes militant it fails to meet its own criteria that political decisions must arise out of free political competition. Further, this book provides a thematic treatment of militant democracy practices in a wide range of jurisdictions (Australia, Turkey, Spain, Germany, Israel, India, the US, and the Council of Europe). The case study element includes traditional examples of militant democracy practice (the prohibi-tion of political parties) as well as recent developments in the understanding of the concept and its interpretation, such as the extension of militant demo-cracy to address threats other than undemocratic political parties. By way of example, the book details how dangerous religious movements and the threat of terrorism can be addressed by applying the logic of militant demo-cracy. This is where the book’s contribution is at its most original, as aca-demic publications on militant democracy have thus far predominantly focused on the jurisprudence of prohibition of antidemocratic political parties. The book is organised into four sections: Militant democracy: founda-tions; Militant democracy and undemocratic political parties; Militant democracy as applied to counter- terrorism; and Militant democracy and the principle of secularism. Part I begins with Chapter 1, which lays down a theoretical framework for the entire book. It reveals the origin of the concept in the 1930s and takes its readers to earlier years of democratic theory to indicate that the problem of how to defend democracy against its potential enemies is longstanding and can be traced back to the very beginning of democratic theory itself. Further, Chapter 1 looks at the historical circum-stances under which the concept was introduced into legal scholarship. The book acknowledges that Loewenstein’s proposal to turn democracy into militant democracy was originally adjusted to mid- twentieth century fascism, and this fact should be taken into account when making parallels later in the book with the problems democracies face in trying to employ

Introduction 3

militant democracy measures today. In order to provide a full account of the reasons surrounding the introduction of the idea of constitutional militancy, the chapter first refers to the tragic experience of the Weimar Republic and elaborates on how these events influenced the content and meaning of the idea to turn democracy militant. Chapter 1 also has an important methodo-logical function. It explains what the term ‘militant’ adds to the quality of democracy. To achieve this goal, the chapter first identifies the meaning given to the concept of democracy for the purpose of this book. Further, it engages with the problems and paradoxes surrounding the notion of militant democracy and distinguishes it from the various notions of democracy that can be found in the literature on democratic and constitutional theory, such as the paradox of tolerance, procedural and substantive democracies, con-stitutional patriotism, and democratic tolerance. Chapter 1 argues that militant democracy is an independent legal concept inspired by tragic events in the past, but that despite the specific historical and political events sur-rounding its origin, it still stands as an important safeguard of democracy. Chapter 2 warns the reader that, while the concept of militant democracy might be attractive to those in the business of protecting democracies, its application nevertheless requires careful consideration. There are many ques-tions, concerns, and challenges about this concept and its application that remain unresolved, despite substantial constitutional practices in its support. It is important to be aware of these problems, as militant democracy has the potential to become dangerous, especially in unstable democratic or undem-ocratic regimes, and to intrude substantively on the most fundamental polit-ical rights and freedoms. Chapter 2 examines the major theoretical and practical concerns the concept of militant democracy might pose. The book’s view is that these concerns are serious but not insurmountable. For example, judicial control is to play an important role in preventing political misuse of militant democracy measures and preserving the legal standards of the prac-tices to limit fundamental rights for the sake of protecting a democracy. Overall, Chapter 2 (and the entire book) centres on the premise that, despite the challenges and concerns liberal democracies can face when applying such measures, militant democracy appears to be a justified and much- needed concept, as long as it is capable of excluding – conceptually and institution-ally – the abuse of mechanisms it creates for restricting rights. The constitu-tional practices of various democratic states analysed in Parts II, III, and IV of the book will support this argument. Chapter 3 bridges the theoretical considerations laid down in Chapters 1 and 2 with the rest of the book. It provides an overview of the practice of militant democracy worldwide, in support of the argument that all demo-cracies are militant to some extent; and that some degree of militancy becomes a natural feature of democratic regimes, such as the institutions of representation and the separation of powers. Moreover, in recent years, one can observe that the application of militant democracy has been continually extended beyond defending against undemocratic political movements.

4 Introduction

This development is introduced in Chapter 3 but developed in further detail in Parts III and IV. Further, Chapter 3 analyses which legal measures and institutions constitute part of a militant democracy regime to safeguard democracy from its potential enemies. It begins with the militant democracy arsenal as introduced by Karl Loewenstein, which is then compared to con-temporary constitutional practices. This exercise is needed to track the trans-formation of practical applications of militant democracy since it was first introduced. Loewenstein’s original proposal of militant democracy measures was narrowed down by constitutional practice and the book reflects this development in the array of militant democracy measures covered in Parts II, III, and IV. This chapter also investigates the relationship between militant democracy and transitional constitutionalism. The ‘founding father’ of militant democracy advocated that countries in transition to democracy must incorporate at least some militant features in their democratic system. This call was heeded by many post- communist European states and there are scholars who argue that militant democracy is a sign of transitional constitu-tionalism only. Chapter 3 aims to answer the question of whether militant democracy gives transitional democracies a better chance to succeed and whether it is an appropriate solution for already stable regimes. Towards the end, this chapter engages with the vexed issue of democratic militancy as an obligation imposed by public international law. Part II considers the practical application of militant democracy measures in relation to political parties. First, Chapter 4 analyses in detail the early cases on the application of militant democracy. The German Socialist Reich Party case and the Australian Communist Party case (both decided shortly after the Second World War) represent examples of considerate and careful application and interpretation of this concept. These judicial decisions were the first opportunities to test Loewenstein’s arguments in practice, and the book considers them to be successful applications of militant democracy to guard constitutionalism in times of crisis. Chapter 4 also looks at how militant democracy was utilised to address the perceived danger of the growing popularity of communist parties worldwide. It demonstrates that democracies became more reluctant about the possible pitfalls of militant democracy when prosecuting communist groups and parties during the Cold War. These practices are worth looking at to reveal how uneasy the business of protecting democracy can be and how militant democracy requires careful consideration and wise application to qualify as an effective and legitimate legal measure. Further, Chapter 5 assesses the general application of militant democracy in relation to political parties in Europe, the cradle of militant democracy jurisprudence. The collapse of the communist regimes in Central and Eastern Europe led to the resurrection of democratic militancy. The past experience of oppressive regimes that had lasted many years triggered wide support for the constitutional and legislative militancy in many coun-tries in the region. Chapter 5 investigates the wide- ranging means used to regulate political party activities in post- communist European states and the

Introduction 5

rationale behind such measures. The chapter focuses on general trends common to most states. The transition to democracy in this region was accompanied by a great hesitation to introduce any serious constraints on political parties’ activities, in order to emphasise and celebrate the idea of political pluralism as one of the foundational principles of the new regime. On the other hand, the collapse of communism caused a serious ideological vacuum, and there was a legitimate fear that it would happily be filled by various extremist organisations mobilising a large number of ‘lost’ voters. Taking into account these circumstances as well as a strong desire to accom-plish the mission of establishing stable democratic regimes, one could be (pleasantly) surprised to learn that militant democracy measures in relation to political parties have been used sparingly in the region. While there have been some instances of misapplication of the concept in the region, in most cases, either national constitutional courts or the European Court of Human Rights have corrected those overreaches later. In the last couple of decades, the European Court of Human Rights has produced a substantive body of case law on militant democracy practices, and this constitutes an important contribution to the debate on militant democracy practices. Thus, the second part of Chapter 5 focuses on the jurisprudence of this institution to demon-strate how its case law, together with ‘soft law’ instruments, can reshape and guide national policies on the treatment of political parties. Chapters 4 and 5 of the book are devoted to practices directed at the sus-pension or banning of political parties. However, constitutional practice is familiar with alternative measures of a militant democratic nature which are much ‘softer’ in their consequences than the banning of a political party, but which still can greatly assist in the mission of safeguarding democracy. Such alternatives could be useful, for example, for states seeking to rearrange their current party prohibition practices to make democratic militancy less aggres-sive and controversial. Chapter 6 looks at the examples from India and Israel. Militant democracy measures in those jurisdictions allow political parties which are considered as posing threats to democracy to remain in the polit-ical arena, but may impose substantial limits on their participation in elec-tions. Chapter 6 argues that content restrictions on electoral speech as practised in India, and the disqualification of lists and parties in Israel, are less drastic than complete bans on party activities. Nevertheless, this state-ment does not suggest that such measures should attract more relaxed stand-ards than other instances of democratic militancy in practice. Part III investigates how militant democracy is relevant in the context of counter- terrorism policies. Chapter 7 looks at the case of Spain, where a pro-cedure to ban political parties was introduced in 2002 as a response to the ongoing presence of political terrorism and violence. In this sense, the Spanish case connects well with the previous parts of the book. The primary focus of this chapter is the 2002 Law on Political Parties and its role in Spain’s counter- terrorism regime. This law was applied for the first time to ban the Basque separatist political party, Batasuna, for having links with, and

6 Introduction

supporting, the terrorist group ETA, one of the most active terrorist organi-sations in Spain. Therefore, Spain represents an example of how a traditional militant democracy measure was applied as part of a counter- terrorism strategy. In other words, this case study demonstrates how a traditional concern of militant democracy – that is, banning undemocratic political parties – is being given a new focus: the threat of terrorism. Subsequently, Chapter 8 develops this observation further and examines the case of Australia and its democratic militancy in relation to counter- terrorism. At first glance, the Australian Constitution does not contain any explicit provisions on demo-cratic militancy. That is why Australia has not traditionally been regarded as an example of a militant democracy state. However, Australian constitutional law is nonetheless familiar with this concept. Chapter 8 first establishes a case to treat Australia as a state with some form of democratic militancy. Further, it investigates how militant democracy became an undeclared guide to Aus-tralia’s counter- terrorism policies in the aftermath of the Thomas v. Mowbray case, where the High Court of Australia interpreted the scope of the defence power to accommodate legislative measures against both external and internal ‘enemies’ (the latter including the activities of terrorist groups operating within Australia). The case of Australia fully supports the main arguments of the book that all democracies are militant to some extent and that militant democracy is the major concept to guide states’ policies to neutralise various internal threats, including the threat of terrorism. Part IV examines how militant democracy can be used to neutralise move-ments that allegedly use democratic means to establish totalitarian ideology – for example, fundamentalist, coercive religions. The major purpose is to investigate the extent to which policies addressing the threat of religious fundamentalism are consistent with the rules of democracy and whether militant democracy can guide these policies more successfully. Chapter 9 looks at the application of militant democracy in Turkey to guard the con-stitutional principle of secularism. The 1982 Constitution of Turkey (as well as the previous 1961 Constitution) endorses democratic militancy, and the country has considerable experience with the prohibition of political parties. Many such parties were dissolved for their alleged violations of the principle of secularism. Therefore, Turkey appears to be a valid case to investigate the relationship between militant democracy and the regulation of activities of religious movements. Chapter 9 demonstrates how militant democracy has been widely utilised in Turkey to eliminate religiously affiliated political parties and to justify a ban on the display of religious symbols in public (such as wearing headscarves). It argues that Turkey has used such measures too often and without observing the conditions of legitimacy for militant democracy. The example of Turkey reveals that militant democracy has the potential to protect democracy from the threat of religious fundamentalism. But more importantly, it indicates that militant democracy can be deployed by elites to advance their political goals and projects. The biggest concern with the practice of militant democracy in Turkey is, however, the successive

Introduction 7

endorsement and approval of such policies by the European Court of Human Rights. The latter is the focus of Chapter 10. This chapter examines the jur-isprudence of the European Court of Human Rights to assess how it refers to militant democracy when deciding cases on prohibition of political parties with religious sentiments, and restrictions on the public display of religious symbols. It appears that the justification given by the ECHR in such cases has a strong militant democracy tone, with the decisions considered being seen as pre- emptive measures to protect democracy. This case study supports further the book’s claim that militant democracy is capable of being utilised to address the perceived threat coming from growing fundamentalist reli-gious movements. However, Chapter 10 does not stop at concluding that militant democracy is relevant for the Court’s jurisprudence on the principle of secularism. Rather, it evaluates whether this concept has been utilised in a proper way and whether it has become a successful solution for cases where states want to stymie the growth of movements that allegedly aim to use democratic means to establish fundamentalist and coercive religious ideologies. The concluding part summarises the findings of the book as to the argu-ment that militant democracy stands as an important and justified concept to safeguard democracy. Based on the analysis of militant democracy prac-tices in relation to undemocratic political parties and other allegedly danger-ous movements, it sums up who are the ‘enemies’ militant democracy aims to target and how this notion has changed in the last few decades. This part of the book concludes that militant democracy has proved to be a dynamic concept, able to accommodate different types of threats in terms of their ideological foundations. In this respect, any movement with aims and objectives that contradict the democratic foundations of the state can trigger the application of militant democracy. The conclusion reminds us that militant democracy measures might be abused or misused for political pur-poses, especially in democracies that are not yet stable. Therefore, strong jus-tification and procedural guarantees must be accorded to any instance of the application of militant democracy measures. This will prevent the possibility of labelling unpopular or unwanted groups, or groups in opposition to the government, as ‘enemies’ of democracy. The concluding part assesses whether democracies have demonstrated their capacity to follow this course of action.

Notes

1 Mark Chou, Theorising Democide: Why and How Democracies Fail (Palgrave Pivot 2013), 16.

2 John Keane, The Life and Death of Democracy (W.W. Norton & Company Incorpor-ated 2009), 13.

3 An Interview with Dr Mark Chou, ‘Addressing Democide and its Implications for Politics’ (2012) 3 Political Reflection Magazine, 67.

4 Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I, II’ (1937) 31 American Political Science Review, 417, 638.

Part I

Militant democracyFoundations

1 Militant democracyHistorical and theoretical perspectives

1.1 The origin of the concept: democratic militancy introduced

Paul Joseph Goebbels,1 Minister of Propaganda in Nazi Germany, once com-mented that: ‘This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed.’ Leaving aside the initial purpose of this sarcastic statement – to gloat about the ‘great’ achievements of National Socialism in Europe and worldwide – it is nevertheless true. Democracy is a precarious thing. This concern has occu-pied thinkers since Plato, who warned of the possibility that ‘the trajectory that begins with the delights of democracy ends with the nightmare of tyranny’.2 Despite worldwide trends in favour of democracy and the fact that the number of democracies has more than doubled in a generation,3 demo-cracy is still being considered ‘the very thing that can bring democracy to its own knees’.4 In other words, democracy has the unfortunate capacity to come undone, to risk its own safety, to take its own life, all while doing what it was intended to do.5 This is to a large extent due to the fact that democracy is an inherently liberal and accommodating system of governance premised on a plurality of political ideas and opinions. These characteristics can facil-itate the activities of groups and individuals who want to harm or overturn democracy by abusing or misusing democratic institutions and procedures such as free elections, freedom of speech, and freedom of association. Militant democracy is a concept that explains how democracy can protect its struc-tures from such attempts and remain internally coherent. The archetypal example of how purely procedural democracy and unlim-ited tolerance towards intolerant political actors can become dangerous is the electoral success of the Nazi Party and collapse of the Weimar Republic. The Weimar Constitution came into effect in August 1919 and became the German nation’s first constitution based on the principle of popular sover-eignty. However, only 13 years later it made a way for an antidemocratic and anti- constitutional dictatorship.6 The system of proportionate repres-entation created by the Weimar Constitution, in combination with some other serious flaws in constitutional design, civil strife, economic crisis, and

12 Militant democracy: foundations

resentment of the political left and right, was used effectively by the Nazi Party to obtain power. Within this environment, the Nazi Party managed very quickly to mobilise popular support and to employ available democratic techniques to secure a majority in the parliament. The Nazi Party never had a real majority but their popularity slowly increased with each election, to the point where they allied with the German Nationalist Party to gain the majority of votes in 1933. After Adolph Hitler was appointed as the head of the coalition government, with the help of his supporters who held major ministerial positions, he used his power to suppress all possible political opponents. In 1933 Hitler was powerful enough to convince the members of parliament to vote for the ‘Ermächtigungsgesetz’ (Enabling Act), which tem-porarily suspended key provisions of the Weimar Constitution and gave power to the government to legislate by decree.7 As a result, the very prin-ciples of liberal democracy, such as the separation of powers, and guarantees of fundamental rights and liberties, were effectively dismissed, and all power was transferred to the government.8 A totalitarian dictatorial regime was established, without any visible violations of the democratic electoral process. ‘The Weimar Republic, with its aspiration for liberal democracy, had given itself up, legally and peacefully, to its most extreme enemy.’9

A few words should be said about the Weimar Republic itself. It was widely criticised and characterised as having been ‘defenseless against the rise of totalitarian movement, which availed itself of the democratic process as a Trojan horse in its effort to establish a brutal dictatorship’.10 Some com-mentators note that the Weimar Republic, Germany’s first constitutional state based on the principle of popular sovereignty, ‘opened the door to the electoral assumption of power by the National Socialists, or Nazis, despite the party’s clearly antidemocratic means and aims’.11 Moreover, the Weimar Constitution was labelled by scholars as having played ‘a key negative role in German constitutional policy’.12 The legitimacy of the Weimar Republic itself is not a settled issue from a political or legal perspective. As the Weimar Republic was established after a military defeat, its constitution was considered as illegitimate by a wide sector of German society and there was no consensus on whether it could be called a republic or not.13 The imperfec-tions and flaws of the Weimar Republic, along with a lack of legal culture and in the absence of a strong democratic tradition, lead to its collapse with tragic consequences. Indeed, democracy should be an educational and cul-tural project to the same extent as a constitutional one as ‘there is no demo-cracy if there are no democrats’.14 Hitler’s project of rising to power owes a lot to the lack of political and moral culture of German society at that time. Germany’s attempt to establish liberal democracy generated an impres-sive body of legal and political discourse and some truly remarkable works on the concepts of constitutional democracy, popular sovereignty, and rule of law were written in response to the Weimar ‘experiment’.15 Many lessons have been drawn from the experience of the Weimar Republic, some of which found expression in the German Basic Law of 1949, which recalled

Historical and theoretical perspectives 13

the conditions that led to the Nazi state and resolved that ‘the Federal Republic could never be neutral in the face of its mortal enemies’.16 On a larger scale, events in the 1930s made many realise that democracy could not survive without an institutionalised means of protection against attacks from its internal enemies. In other words, democracy should not remain silent about attempts to damage it from within by those abusing the privi-leges, rights, and opportunities granted to them by the regime. Liberal constitutions should not function as suicide pacts, and must be prepared to take self- defensive actions when needed.17 These ideas, reflected in many writings of legal and political theory, became known as the concept of militant democracy. Militant democracy was introduced to legal scholarship and constitutional practice in an attempt to address the challenges democracies can face when there are attempts to attack and damage the democratic system from the inside. Karl Loewenstein, a German émigré legal scholar, coined the phrase ‘wehrhafte demokratie’ (militant democracy) in the 1930s. He argued that attempts to establish democracy in the Weimar Republic18 failed due to the lack of militancy against subversive movements.19 That is, democratic funda-mentalism and legalistic blindness led to a situation wherein democracies were legally bound to allow the emergence and rise of anti- parliamentary and antidemocratic parties, as long as these parties formally conformed to the principle of legality and the free play of public opinion. Loewenstein concluded that democracy destroyed itself through unlimited tolerance towards its enemies, whereby the mechanism of democracy became ‘the Trojan horse by which the enemy enters the city’.20 As he argued further, ‘fire should be fought with fire’,21 and the fire could be lit only by a new feature of democracy – militancy. Loewenstein attributed the specific features of fascism as very effective legal technique (but not ideology) with a significant role in the tragic events of Weimar. According to Loewenstein, fascism had no proper intellectual content and it greatly and successfully employed ‘emotional mobilization’ as opposed to reason.22 Fascist emotional politics relied on techniques of intim-idating all ‘others’ – individuals and their groups who did not endorse the movement or the regime.23 Emotions provided the social and political cohe-sion necessary for the assumption of power through a legal and formally democratic electoral process. As a result, Loewenstein’s vision of militant democracy was tailored to the events of the interwar period in Germany. However, Loewenstein’s ideas should not be read narrowly. Paradoxically, emotionalism is inherent in democracy and individual rights tend to facil-itate emotionalism only further, but democracy, especially in the form of representative government, was designed as a non- emotional arrangement. Emotional politics is not a strategy exclusive to fascism and there are exam-ples of contemporary political movements worldwide that are based on emo-tionalism, particularly of religious or ethnic origin.24 Therefore, militant democracy, as understood by Loewenstein, is not an abstract or outdated


theory but it can and should be ‘perceived as a set of measures directed against radical emotionalism, a technique that may be relevant in all situ-ations and jurisdictions where emotionalism takes over the political processes’.25

Although the phrase ‘militant democracy’ was not introduced until the 1930s, the problem of how to defend democracy against its potential enemies can be traced back to the very beginning of democratic theory itself.26 The underpinnings of militant democracy are claimed to be at least as old as the ‘no liberty for the enemies of the liberty’ principle formulated by Louis de Saint- Just.27 Plato discussed at length the reasons for transition from one form of government to another and the difficulty of stabilising governments.28 In Ancient Greece, the Athenians practised a form of militant democracy by denying civil and political rights to wrongdoers from previous regimes (such as during the transitions of 411 and 403 BC).29 Later, Charles de Montesquieu wrote extensively about the challenge of stabilising a moderate government and his influence may explain why certain forms of militancy can be found in the constitution of the United States of America.30

While Loewenstein was the first to introduce the term militant demo-cracy, similar ideas were evident in the works of other scholars during the same period. For example, Karl Popper in The Open Society and Its Enemies31 refers to the ‘paradox of tolerance’ and warns that ‘unlimited tolerance must lead to the disappearance of tolerance’.32 He argues that tolerance should not be granted ‘to those who are intolerant’,33 and that ‘the right not to tolerate the intolerant’34 should be preserved in the name of tolerance. In addition he calls to place ‘any movement preaching intolerance’35 outside the law. In other words, democracy should be more aggressive towards those who do not believe in it and its values.36 Further, Popper endorses Plato’s criticism that democracy should not only be about procedure, but also about substance. By this Plato meant that there should be fundamental principles and rules which cannot be recalled even by the majority’s decisions. The idea of consti-tutions containing an unalterable core was introduced for the first time in 1884 when the French Constitution established the non- amendable character of the provision on the republican form of government. It later became an element of the concept of militant democracy. The constitutions of many countries now make explicit reference to the idea that their most funda-mental provisions are unalterable.37

There is no agreed- upon definition of militant democracy; however, all attempts to define the concept refer to the same qualities that the term ‘militant’ adds to democracy. First, militancy implies pre- emption, meaning that states need not wait until those who aim to destroy or overturn the system have real opportunities to do so; second, such pre- emptive measures are aimed against a specific ‘enemy’: individuals or groups aiming to harm the democratic structures of the state; and third, ‘enemies’ are those aiming to harm democratic structures by abusing rights and privileges given to them by the democracy and open society. These features are crucial to


determining the militancy of a constitutional system. Therefore, roughly speaking, militant democracy can be defined as the capacity of liberal demo-cracies to defend themselves against challenges to their continued existence by taking pre- emptive action against those who want to overturn or destroy democracy by abusing democratic institutions and procedures.38 I will rely on this definition of militant democracy in this book. Today, militant democracy is primarily understood as the fight against radical movements, especially radical political parties and their activities.39 In that form, it is usually agreed that militant democracy was first explicitly constitutionalised in Germany: the ‘cradle’ of militant democracy.40 The Basic Law of 1949 introduced militant democracy and gave the German political system a new form, including the mechanism to protect its found-ing principles against the potential enemies of the state. The central element of Germany’s militant democracy is Article 21 of the Basic Law, which established the procedure to ban unconstitutional political parties:

Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endan-ger the existence of the Federal Republic of Germany shall be unconsti-tutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.

While there is no reference to a particular ideology to be banned from German politics, and the Basic Law refers to only an abstract enemy, it clearly targets the Nazi movement and its followers. In contrast, the drafters of the Italian Constitution chose to ensure that the previous rulers had no chance of returning to the political mainstream by explicitly prohibiting the reorganisation, in any form, of the dissolved Fascist party.41

Later, the concept of militant democracy was widely utilised to curb the activities of communist political parties. For example, during the Cold War era the government of the United States of America launched an extensive campaign against the Communist Party. Part of this campaign was the enactment of new legislation which criminalised advocating the overthrow of government.42 In 1950, Australia’s Federal Parliament enacted the Com-munist Party Dissolution Act. This Act declared the Communist Party and other associations likely to be under the influence of communists to be illegal, and made it an offence to be a member of a banned organisation.43 In 1956, the Federal Constitutional Court of Germany exercised its power under Article 21 of the Basic Law and rendered a judgment which declared the Communist Party of Germany unconstitutional.44 It was expected that the fall of communism would deliver the use of militant democracy meas-ures, given that so many were introduced to guard against the ‘threat’ of communism. However, many of the young European democracies that emerged after the fall of communism in the late 1980s included militant democracy provisions in their constitutions to protect their fragile


democratic societies from the possibility of being undermined by previous regimes.45

The most recent trend in the militant democracy debate emerged after the 11 September 2001 terrorist attacks as the anti- terrorism policies and legislation that followed returned issues of militant democracy to the fore-front of constitutional and political discourse. Many Western democracies regarded themselves as implicated in an undeclared war between extremist Islam and Western liberal democratic values.46 Interest was also boosted by the world’s heightened awareness of the threats posed by religious funda-mentalism. Democracies worldwide had to accept that the electoral arena was not merely ‘a forum for the recording of preferences, but a powerful situs for the mobilisation of political forces’.47 So, the possibility was raised that militant democracy could be used in a much wider sense, to protect demo-cracy not only from undemocratic political parties but also from other emerging threats. Therefore, militant democracy is by no means a concept that is ‘withering away’, but is still seen in many nations as an important tool for protecting democracy.

1.2 Militant democracy in democratic and constitutional theory

The problem of how to defend democracy against its potential enemies and assist societies in building and strengthening democracy can be traced back to the very beginning of democratic theory itself. Democratic and constitu-tional theory have introduced and developed various solutions to address these concerns, including militant democracy and more liberal alternatives to it. For example, the concept of ‘constitutional patriotism’ introduced by the political philosopher Dolf Sternberger in the late 1970s and taken up by Jürgen Habermas has been presented as the most plausible model of political cohesion for societies emerging from civil war, pervasive injustice, or theo-cratic modes of legitimation.48 Presented as a more attractive alternative to militant democracy, constitutional patriotism has been endorsed as an appro-priate way to conceptualise solidarity and hope in countries transitioning from theocracy to democracy. Constitutional patriotism is the idea that polit-ical attachment ought to centre on the norms, the values, and, less directly, the procedures of a liberal democratic constitution.49 Undoubtedly, constitu-tional patriotism represents an interesting view on how democracies can address extreme expressions of nationalist feelings. It might present a mech-anism for uniting a nation, especially in increasingly multicultural societies. However, it cannot fully replace the idea of militant democracy. When groups pose a threat to democracy and its future, and liberal solutions fail, states must be equipped to defend themselves. This is one of many examples of how militant democracy interacts with other concepts, and it demonstrates that democratic and constitutional theory is still finding solutions to assist democracies in coping with various challenges they might face, now or later.


Much was written on this topic of militant democracy itself, even before Loewenstein’s conception of militant democracy was put into practice in post- war constitutions in Europe, but more often in response to certain events and developments in the constitutional legislation and jurisprudence of various states.50 For example, theorists from a variety of philosophic tradi-tions have argued for some time in support of a substantive view of demo-cracy, which can be regarded as one of the features of militant democracy.51 Thus, Carl Schmitt in Legalität und Legitimität (Legality and Legitimacy) calls for a distinction between the procedural rules and the substantive principles in a constitution. Schmitt claims that there are some basic substantive principles that cannot simply be abolished by the elected representatives even if the procedural rules have been observed.52 Schmitt’s idea reached its pinnacle in the 1931 exchange with Hans Kelsen53 on the question of who, in Weimar Germany, should be the ‘Guardian of the Constitution’.54 In the aftermath of the Second World War and the collapse of communism in Europe, Schmitt’s view received widespread support. Consequently, the current constitutions of many states explicitly refer to the idea of the non- amendable character of their most fundamental principles. These two notions – procedural and substantive democracy – were investigated in quite some detail in relation to modern democracies by Gregory Fox and George Nolte.55 To describe the first model, the authors adopted Joseph Schumpeter’s definition of democracy as an ‘institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote’.56 This model provides a framework for decision- making and is in fact nothing more than governance by a majority rule. In contrast, the substantive model of democracy is characterised as a society in which majority rule is made meaningful.57 According to this view, the democratic process is not an end in itself but rather a means to create a society where citizens enjoy a variety of rights, including the right to vote, and where none of these rights is absolute, meaning it cannot be used to abolish itself or other rights. As mentioned above, the concept of militant democracy originates from the idea of limiting tolerance towards undemocratic (or intolerant) actors. However, Loewenstein and Popper were not the only legal scholars who engaged with this paradox. More generally, the idea that the claims of intol-erant groups should not be accommodated indefinitely corresponds with core liberal principles. Thus, John Locke, in his Letter Concerning Toleration,58 notes that the state’s tolerance cannot be extended to those who, in the name of religion, are not willing to be tolerant of others: ‘those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of toleration’.59 Later, John Rawls, in examining the same problem of toleration of the intolerant, concluded that intolerant groups do not have any right to complain if they are not tolerated by the majority because a ‘person’s right to complain is limited to violations


of principles he acknowledges himself ’.60 In other words, if a political party openly advocates the suppression of minorities or disregard for any other fundamental features of democracy, that political party can be eliminated (or ‘not tolerated’) without democracy contradicting itself. Rawls, defending the liberal state in a self- consciously political fashion, argues that it will not grant the space of politics to those who want to use that space to destroy it.61 Having said that, intolerance, according to Rawls, is permitted under very limited conditions: only where there are ‘some considerable risks at our own legitimate interests’.62 He strongly believes in the natural strength of free institutions and relies heavily on the inherent stability of a just constitution; altogether free institutions and a just constitution give confidence to the members of society to limit the freedom of the intolerant only when limita-tion is urgently needed. Rawls considered this an application of the prin-ciples of justice agreed to even by the intolerant in his well- known ‘original position’. The model offered by Rawls appears desirable; however, it might still give rise to some practical difficulties. This is particularly true for devel-oping democracies during their unstable and fragile stages (as opposed to the United States of America’s constitutional system Rawls had in mind, which has proved to be capable of withstanding many crises of different natures). Democratic and constitutional theory has not engaged only with the paradoxes and complexities of the distinction between democracy and militant democracy but is also concerned with how militant democracy is to be applied in practice. The main strands of this debate are well summarised by Otto Pfersmann.63 First, he notes that the major controversy of the militant democracy debate is built around the following questions: are militant democracy provisions compatible with the very nature of democracy and, if they are, do such provisions promote democracy? In other words, does militant democracy fail to meet its own criteria, namely that political deci-fail to meet its own criteria, namely that political deci-sions must arise out of free political competition?64 Further, Pfersmann asks: what is the precise legal meaning of militant democracy and in what way should they be legally applied? And finally, he asks: how should they be effectively applied in certain situations? He also reveals some assumptions underlying the concept of militant democracy: that militant democracy differs from simple democracy in quality only; that militant democracy measures make a difference in content rather than in structure; and that democracy has a stable meaning and expression – ‘militant democracy’ only adds specific features. Pfersmann also claims that ‘democracies are always more or less militant’65 but warns that making democracy more militant modifies the original structure of democracy, and that excessive extension of militancy could lead to a ‘decrease of the liberal heritage of constitutional democracy’.66

Pfersmann offers two types of responses to democratic (in)tolerance: legal and non- legal strategies. By non- legal strategies he means appeals to the beliefs and political habits of citizens in order to demonstrate the advantages of democracy. Legal strategies consist of legally imposed obstacles to


abolishing the democratic order, which could be direct or indirect. Direct obstacles prohibit certain actions against democracy or impose obligations to identify those actions in a preventive way as well as to promote pro- democratic beliefs and attitudes. By contrast, indirect obstacles modify rules concerning decision- making. An example of this would be the introduction of qualified majority voting for certain matters leading to ‘a rule on rule- making that excludes pure democratic rule- making in a certain domain’.67 As a result, any democracy with legal structures containing rules which prevent departure from open democracy as the general rule of rule- making can be characterised as militant. Pfersmann concludes that there are only very few examples where majority decision- making is not limited in any way, and therefore that all democracies are more or less militant.68 He does not hesitate to burden constitutional courts with responsibility for the success of the militant democracy mission. He argues that militant democracy is to a large extent about not only the quality of the provisions and their precision, but also the way they are interpreted and applied by competent constitutional courts. The latter are described as ‘final guardians of liberal democracy’69 rather than the majoritarian or even hypermajoritarian parliaments as militant democracy requires strong, analytical constitutional jurisprudence to develop. I agree with this claim and argue for strong judicial involvement when militant democracy measures are to be applied. In its most traditional form, militant democracy can be understood as a set of procedures to outlaw political parties whose programmes and activities disregard fundamental democratic principles or openly aim to destroy them. This explains how legal scholarship has actively engaged in debates on party prohibition rules and procedures by introducing different models to classify party dissolutions, systemise state practices, and formulate some sort of a guide for the successful practice of banning political parties. For example, Peter Niesen claims that all attempts to ban political parties can be placed in three paradigms: anti- extremism, negative republicanism, and civic society.70 He claims there are three pragmatic understandings of party bans which differ not only in the identification of their opponents and the conception of democracy they tend to rely on, but also in the dangers they attempt to avert.71 In the anti- extremism paradigm (which guides the German model of militant democracy), the defensive mechanism is directed against extremist political parties both from the right and from the left. Enemies are defined in a very Schmittian way as those rejecting political institutions and values. Niesen claims there are no democratic contradictions in eliminating those political players who attempt ‘to do away with democratic institutions’.72 The second model, negative republicanism (which exists in Italy), identifies enemies of democracy based on their identification with those responsible for past tragic regimes of injustice. Party dissolution driven by this paradigm can be justified even when political actors identified as enemies pose no apparent danger. Their affiliation with a certain political ideology or movement is enough to justify their exclusion from the


democratic process. Political parties with fascist and communist political agendas that are prohibited not only in Italy but also in several other European democracies would be a clear example of this logic in practice. However, the third paradigm, ‘civic society’, is not so clear. Nielsen calls it a ‘new abstraction’ and argues that civil society regimes are more capable of addressing new dangers and broadening the focus of protection than neg-ative republicanism, but without falling into anti- extremism.73 The civic society view challenges both other models, and views militant democracy as a moral duty to guarantee the continuation of democracy. In addition, democracy is not considered as itself protected but rather as protective of minorities and later generations. This approach is based on a distinctly moral conception of democracy which is claimed to have significant advantages compared to the two other models. Niesen’s contribution to the militant democracy debate is an important one and it seems to reflect quite accurately the development of the concept over the years of its practice. It appears that most modern democracies try to implement militant democracy in a way compatible with the third model offered by this author. Samuel Issacharoff provides a detailed and profound analysis of what may be termed ‘democratic intolerance’, based on a survey of institutional considerations surrounding restrictions on political participation in various jurisdictions.74 His major concern is ‘under what circumstances [a] democratic government may act (or, perhaps, must act) to ensure that their state apparatus not be captured wholesale for socially destructive forms of intolerance’.75 Issacharoff ’s work was inspired by the 2005 Danish cartoon publication controversy.76 This was regarded as an opportunity to revisit one of the most challenging issues for democratic governments: how to respond to the actions of intolerant groups, in the name of preserving fundamental democratic principles, without compromising democracy itself. Issacharoff posed four questions that legislators and courts should consider while trying to mark the parameters of democratic participation. First, may a state draw a boundary around participation in the democratic process, excluding those who fall on the wrong side of the boundary from the right of participation? Second, if so, where does that boundary lie? Is it based on the ideological positions of the excluded actors, or must it turn on the immediacy of the danger they present? Third, if such determinations are to be made, is there an obligation to define legislatively the outer bounds of the right of participation? Fourth, if the legislator does so define the boundaries of democratic participation, must there be an independent body to implement exclusion or to avoid the temptation of political self- dealing or settling the scores?77 These are some of many questions and concerns democracies need to address while guarding the perimeter of democratic participation. It is not feasible to include all concepts and notions known to democratic and constitutional theory which are of relevance to the debate surrounding militant democracy. This section outlined a sample to demonstrate that militant democracy is not an isolated, old- fashioned, abstract idea from


post- war Europe. Militant democracy has close ties with various ideas about how to deal with intolerant political actors and citizens, and with the essence of constitutional democracy. This justifies the conclusion that militant democracy has a prominent place in democratic and constitutional theory and therefore deserves careful and thorough investigation in this and other works.

Notes

1 Paul Joseph Goebbels was a German politician and Reich Minister of Propa-1 Paul Joseph Goebbels was a German politician and Reich Minister of Propa-ganda in Nazi Germany from 1933 to 1945. One of Adolf Hitler’s closest associ-ates and most devout followers, he was known for his zealous oratory and anti- semitism. Joseph Goebbels is quoted in Karl Dietrich Bracher, Manfred Funke, and Hans- Adolf Jacobsen, Nationalsozialistische Diktatur, 1933–1945: Eine Bilanz (Bonn: Bundeszentrale für Politische Bildung 1983), 16: ‘Das wird immer einer der besten Witze der Demokratie bleiben, dass sie ihren Todfeinden die Mittel selber stellte, durch die sie vernichtet wurde’, in András Sajó, ‘From Militant Democracy to the Preventive State’ (2006) 27 Cardozo Law Review, 2262.

2 Mark Chou, Theorising Democide: Why and How Democracies Fail (Palgrave Pivot 2013), 16.

3 John Keane, The Life and Death of Democracy (W.W. Norton & Company Incorp-orated 2009), 13.

4 An Interview with Dr Mark Chou, ‘Addressing Democide and its Implications for Politics’ (2012) 3 Political Reflection Magazine, 67.

5 John Keane refers to this capacity as ‘democide’. See Mark Chou above n 2, 24. 6 Peter C Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law.

The Theory and Practice of Weimar Constitution (Duke University Press 1997), 1. 7 The Enabling Act was approved under the threat of the storm troopers. For more

details, see Karl Dietrich Bracher, The German Dictatorship: The Origin, Structure, and the Effects of National Socialism (trans. Jean Steinberg) (Praeger 1970), 199–211.

8 Ibid. 9 Caldwell above n 6, 1.10 Thilo Rensmann, ‘Procedural Fairness in a Militant Democracy: the “Uprising of

the Decent” Fails Before the Federal Constitutional Court’ (2003) 4 German Law Journal, 1117.

11 Norman Dorsen, Michel Rosenfeld, András Sajó, and Susanna Baer (eds), Com-parative Constitutionalism: Cases and Materials (West Group 2003), 1286.

12 See, for example, Caldwell above n 6.13 Otto Pfersmann, ‘Shaping Militant Democracy: Legal Limits to Democratic

Stability’, in András Sajó (ed.), Militant Democracy (Eleven International Publish-ing 2004), 52.

14 Ibid. 51.15 See Caldwell above n 6, which examines various debates over the meaning and

practice of constitutional law during the Weimar Republic.16 Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of

Germany (Duke University Press 1997), 218.


17 See, for example, Richard A Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford University Press 2006).

18 The Weimar Republic (1919–1933) was the German constitutional arrangement which eventually collapsed during the Third Reich and which is often associated with the failure of democracy. For details see, for example, David Dyzenhaus, ‘Legal Theory in the Collapse of Weimar’ (1997) 91(1) The American Political Science Review, 121.

19 Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I, II’ (1937) 31 American Political Science Review, 417, 638.

20 Ibid. 424.21 Ibid. 656–7.22 András Sajó, ‘Militant Democracy and Emotional Politics’ (2012) 19(4)

Constellations, 562.23 Ibid. 562.24 For example, Sajó above n 22 refers to democratic electoral attempts to sustain

and/or regain control over the public sphere by some extremist religious groups. Relying on emotional beliefs and practices, religions can challenge constitution-alism and democracy as a value system in many ways. In general, democracies do not welcome the emergence of parallel societies based on separate philosophical convictions (see, for example, decision of the European Court of Human Rights in Konrad and Others v. Germany [2006, Application no. 5504/03], Admissibility Decision). Further, European Court of Human Rights, for example, considered religious fundamentalism more than a simple threat to democracy (see Chapter 10 for more details).

25 Sajó above n 22, 562.26 Pfersmann above n 13, 47.27 Jan- Werner Muller, ‘A Practical Dilemma Which Philosophy Alone Cannot

Resolve? Rethinking Militant Democracy: an Introduction’ (2012) 19(4) Constellations, 536.

28 Pfersmann above n 13, 47.29 For ancient antecedents discussed in detail, see Jon Elster, Closing the Books.

Transitional Justice in Historical Perspective (Cambridge University Press 2004), 3–24.

30 Pfersmann refers to L’Esprit des Lois, Book 8 (1748); see Pfersmann above n 13, 47.

31 Karl Popper, The Open Society and its Enemies (Princeton University Press 1950).32 Ibid. 546.33 Ibid. 546.34 Ibid. 546.35 Ibid. 546.36 Kent Roach, 9/11 Effect: Comparative Counter- Terrorism (Cambridge University

Press 2011), 56.37 An example would be the eternity clause provision from the 1949 German Basic

Law, Article 79(3): Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

38 Stephen Holmes, ‘Book Review András Sajó (ed.), Militant Democracy’ (2006) 4(3) International Journal of Constitutional Law, 591.

39 Sajó above n 1, 2262.


40 For a summary of German Basic Law provisions on militant democracy, see Pfersmann above n 13, 49; Markus Thiel, ‘Germany’, in Markus Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate 2009), 109–46.

41 The Constitution of Italy, adopted on 22 December, came into force on 1 January 1948. Article XII of the Transitory and Final Provisions read as follows: ‘It shall be forbidden to reorganize, under any form whatsoever, the dissolved Fascist party.’ Notwithstanding Article 48, the law has established, for not more than five years from the implementation of the Constitution, temporary limitations to the right to vote and eligibility for the leaders responsible for the Fascist regime.

42 The Alien Registration Act (18 US Code § 2385), known as the Smith Act, pro-vided in Sections 2 and 3 as follows:

Sec. 2 (a) it shall be unlawful for any person – (1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of such government; Sec.3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of . . . this title.

The Act is best known for its application against political figures and Dennis v. United States (341 US 494 [1951]) represents the most known facet of an Ameri-can war on communism.

43 Communist Party Dissolution Act 1950 (Cth).44 Communist Party of Germany Case (1956), 5 BVerfGE 8. For details, see Donald

Kommers above n 16, 222.45 For a brief overview of militant democracy provisions in Central and Eastern

European states, see András Sajó, ‘Militant Democracy and Transition Towards Democracy’, in András Sajó (ed.), Militant Democracy (Eleven International Pub-lishing 2004), 218–19, and Jiri Priban and Wojciech Sadurski, ‘The Role of Political Rights in the Democratization of Central and Eastern Europe’, in Wojciech Sadurski, Political Rights Under Stress in the 21st Century Europe (Oxford University Press 2006), 225–30.

46 Shlomo Avineri, ‘Introduction’, in András Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 2.

47 Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harvard Law Review, 1410.48 Jan- Werner Muller, Constitutional Patriotism (Princeton University Press 2007);

Jan- Werner Muller and Kim Lane Scheppele, ‘Constitutional Patriotism: An Introduction’ (2008) 6(1) International Journal of Constitutional Law 67–71; Jan- Werner Muller, ‘On the Origins of Constitutional Patriotism’ (2006) 5 Con-temporary Political Theory, 278–96.

49 Muller and Scheppele above n 48.50 See, for example, Paul Harvey, ‘Militant Democracy and the European Conven-

tion on Human Rights’ (2004) 3 European Law Review 407; Miguel Revenga Sanchez, ‘The Move Towards (and the Struggle for) Militant Democracy in Spain’ (ECPR Conference, Marburg, September 2003); Leslie Turano, ‘Spain: Banning Political Parties as a Response to Basque Terrorism’ (2003) 1 Inter-national Journal of Constitutional Law 4; Victor Ferreres Comella, ‘The New Regu-lation of Political Parties in Spain’, in András Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 47; Dicle Kogacioglu, ‘Progress, Unity, and Democracy: Dissolving Political Parties in Turkey’ (2004) 38 Law and Society


Review 3; Mehran Kamrava, ‘Pseudo- Democratic Politics and Populist Possibil-ities: The Rise and Demise of Turkey’s Refah Party’ (1998) 25(2) British Journal of Middle Eastern Studies 275; Ergun Ozbudun, ‘Party Prohibition Cases: Dif-ferent Approach by the Turkish Constitutional Court and the European Court of Human Rights’ (2010) 17 Democratisation 1; Mordechai Kremnitzer, ‘Disqualify-ing of Lists and Parties: the Israeli Case’, in András Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 157; Rensmann above n 10.

51 Gregory H Fox and George Nolte, ‘Intolerant Democracies’ (1995) 36 Harvard International Law Journal, 17.

52 The idea of constitutions containing an unalterable core has been known in con-stitutional practice at least since 1884 when the French Constitution established the non- amendable character of the provision on the republican form of government.

53 On the Schmitt–Kelsen exchange see, for example, Gopal Balakrishnan, The Enemy. An Intellectual Portrait of Carl Schmitt (Verso 2002), 138–54; Sylvie Delac-roix, ‘Schmitt’s Critique of Kelsenian Normativism’ (2005) 18(1) Ratio Juris 30.

54 Stanley L Paulson, ‘Some Issues in the Exchange between Hans Kelsen and Erich Kaufmann’ (2010) Stockholm Institute for Scandinavian Law, available at www.scandinavianlaw.se/pdf/48-17.pdf, accessed 30 June 2014.

55 Fox and Nolte above n 51,17.56 Ibid. 14.57 Ibid. 16.58 John Locke, A Letter Concerning Toleration: Latin and English Texts’ (Ed. Mario

Montuori) (Martinus Nijhoff 1963).59 András Sajó, ‘The Self- Protecting Constitutional State’ (2002) 12 Eastern Euro-

pean Constitutional Review, 78.60 Fox and Nolte above n 51, 18.61 Dyzenhaus above n 18, 121.62 Fox and Nolte above n 51,18.63 Pfersmann above n 13, 51–2.64 Sajó above n 60, 79.65 Pfersmann above n 13, 53.66 Ibid. 53.67 Ibid. 56.68 Pfersmann above n 13 names democracies in which no absolute majority is enti-

tled to modify certain democratic settings as ‘strict militant democracies’ (as, for instance, in Germany, Italy, and France).

69 Pfersmann above n 13, 68.70 Peter Niesen, ‘Anti- Extremism, Negative Republicanism, Civic Society: Three

Paradigms for Banning Political Parties’ (2002) 1,2 German Law Journal 3.71 Ibid. 45.72 Ibid.73 Ibid. 41.74 Issacharoff above n 47, 1405.75 Ibid.76 The 12 cartoons published on 30 September 2005 by the Danish newspaper

Jyllands- Posten show the Muslim Prophet Muhammad in a variety of humorous or satirical situations. The cartoons were republished in Austria in January, and then at the beginning of February in a number of European newspapers in


France, Germany, Italy, and Spain. Diplomatic protests by governments of Islamic countries started in October 2005, escalating to the closure of embassies. For more reports, see Q&A: The Muhammad Cartoons Row, BBC News, published 7 February 2006, available at http://news.bbc.co.uk/2/hi/4677976.stm, accessed 30 June 2014.

77 Issacharoff above n 47, 1415.

2 The concept of militant democracyProblematic or justified?

2.1 Pitfalls of militant democracy: preliminary theoretical and practical observations

While the concept of militant democracy might be attractive to those con-cerned with the protection of democracy generally, it nevertheless requires careful consideration. There are many questions, concerns, and challenges about the concept that remain unresolved, despite the substantial constitu-tional practice in support of it. The potential pitfalls of militant democracy are easily identifiable in the realm of both constitutional jurisprudence and theory. It is important to acknowledge such concerns and emphasise that the aim of this book is not to praise the concept of militant democracy as a uni-versal model of behaviour which every democracy can adopt and apply in its own set of circumstances without reservations. Noting potential difficulties at this point also serves the purpose of drawing a roadmap for further chap-ters of the book, where the application of militant democracy in practice will be investigated. It is useful to examine the practice of various states in light of these difficulties and evaluate how democracies manage to address the potential concerns of militant democracy. The idea of democracies taking a militant stance towards their perceived adversaries has been vehemently criticised since the concept first emerged in the 1920s.1 This is largely due to the fact that the concept of militant demo-cracy provides an alternative perspective to the liberal view of the state. Under that view, democracy is understood as an accommodating political system premised on the existence of a plurality of ideas and opinions. Liberal political theory generally makes the strong and emotional argument that harmful rhetoric is best counteracted with more rhetoric. As the United States Supreme Court Justices Holmes and Brandeis argued in the seminal case Whitney v. California, ‘the good will prevail in the market place of ideas’.2 This view also suggests that suppression of free speech and political expression can be ineffective and even counterproductive; therefore, only immediate and tremendous threats can justify such measures.3 For this reason, legitimate concern can be raised over how democracy can run into self- contradiction by limiting fundamental rights and liberties in order to

Militant democracy: problematic or justified? 27

secure the very existence of those rights, and question whether democracy can behave in a militant way while remaining true to itself. Loewenstein, who introduced the term ‘militant democracy’ into legal theory, was himself aware of the possible critiques of his solution. He acknowledges that ‘demo-cracy stands for fundamental rights, for fair play for all opinions, for free speech, assembly, press’4 and agrees that it might be a difficult task for any democracy to curtail these freedoms ‘without destroying the very basis of its existence and justification’.5 He sees this dilemma as especially relevant for stable democracies with strong protection of human rights. For example, in considering the question of whether legislative measures against incipient fascism were required in the United States, Loewenstein highlights the dif-ficulties in finding a compromise between any such legislation and the ‘elab-orate fundamentalism of constitutional rights enshrined in the American constitution’.6 Applying this caution to modern democracies, one interpreta-tion is that any militant democracy measures would require extensive expla-nation and justification from governments in jurisdictions with strong democratic traditions and an effective system of fundamental rights protection. Another major theoretical concern with militant democracy relates to the origins of the concept itself. The circumstances surrounding the origin of Loewenstein’s idea of ‘disciplining’7 democracies are crucial in understand-ing the reason the idea was introduced and the rationale for using a certain tone to deliver the message and call upon democracies to take action. Militant democracy was originally a response to mid- twentieth century fascism, and Loewenstein’s concept of militant democracy is predominantly a set of anti- fascist legal techniques. Militant Democracy and Fundamental Rights was written at a time when the growing popularity of fascism was accompanied by a strong assumption that ‘no country whatsoever is immu-nised from fascism as a world movement’.8 On the eve of one of the most tragic events of the twentieth century, legal and political scholars were under serious emotional pressure, if not panic, to write their commentaries and recommendations. Consider, for example, Loewenstein’s call to action:

I prefer to be hysterical now instead of being melancholy later. . . . I prefer dictatorship by democrats and decent people to permanent dictatorship by rogues and hooligans. We are at war, war demands emergency solutions. [It is] a risk and a gamble but we have no choice. The best defence is precaution.9

For Loewenstein, the fascist movement and its success in grasping power in many European states amounted to a war against democracy and, therefore, emergency measures were needed. He cites Leon Blum’s quote that ‘during war legality takes vacations’,10 which is itself a variation of Cicero’s silent enim leges inter arma,11 and suggests a militant conception of democracy as a weapon in the ‘war’ against fascism. Loewenstein’s work is built to a large


extent around specific features of fascism as a political technique and the pol-itics of emotion in general. Accordingly, fascism is not an ideology but simply a political technique aimed at retaining power at any cost. The tech-nique was successful mainly because it managed to detect weaknesses in democratic fundamentalism and utilised emotionalism as a uniting force to rally supporters. Emotionalism is perceived by Loewenstein as one of the biggest threats to democracy in the 1930s. He follows legal- rational under-standing of democracy and consequently views democracies as incapable of responding to an emotional attack with an emotional counter- attack, as democratic governments can appeal only to reason.12

Given the particular historical circumstances that gave rise to the concept of militant democracy as set out by Loewenstein, it might be argued that the concept is overly narrow and one- sided, and therefore cannot be projected to modern democracies as it is untenable today that movements like com-munism or fascism will gain a realistic chance to attack and destroy the idea of democracy.13 Such a claim has some validity, but Loewenstein’s contribu-tion should not be underestimated. Militant Democracy and Fundamental Rights can be read and interpreted in much wider terms. It appears that Loe-wenstein intended to ‘answer a broader problem of democracy beyond the challenge of fascist politics’,14 namely the problem of emotionalism being a ‘fundamental contradiction of democracy’.15 This claim will be addressed later when looking at justification of the concept. In addition to the theoretical and normative pitfalls, the concept of militant democracy can pose serious practical challenges once democracy decides to take a militant stance. This can best be demonstrated by looking at the concept as applied in real life. Parts II, III and IV of the book investi-gate the experience of various states in the business of protecting demo-cracies by referring to the concept of militant democracy, experiences which often include major difficulties. However, at this stage it is important to identify potential controversies so that we may later investigate how modern democracies address those challenges in defending their democratic structures. The first practical difficulty arises from the fact that there exists no general legal theory of militant democracy, as Chapter 1 outlined. There are many related discussions on tolerance, the democratic paradox, state neutrality, and the importance of a free marketplace of ideas, but no ‘model’ of militant democracy that might easily and unreservedly be adopted by democracy when there is such a need. There is also no clear guideline on how liberals should refer to militant democracy without losing their status as lib-erals. The concept of militant democracy does not come with a manual, and further chapters of this book demonstrate how fraught the exercise of pro-tecting democracy can be. This can be explained by the substantive differ-ences in the historical experience of different countries, and the way lessons from the past have been interpreted and inferred. But the absence of a general legal theory and clear definition of militant democracy leads to one


of the major difficulties with the concept of militant democracy: it has a potentially expansive scope that may result in misinterpretation and abuse. This outcome is of course not unique to militant democracy, as countless other ambiguous legal and conceptual ideas have suffered the same fate.16 Militant democracy originated as a set of restrictions ‘to fit into [a] system of prevention against an identifiable opponent that treats democracy and demo-crats as enemies’.17 The fact that militant democracy was ‘poorly articulated’ caused certain shifts which arguably undermined the utility of the concept.18 It became heavy, messy, confusing, and was replaced by ad- hockery.19 As a result, isolated and sometimes contradicting measures – with an ostensibly militant democracy rationale – were introduced into contemporary constitu-tionalism, creating a chaotic and unsystematic construction, a bricolage of theoretical odds and ends. For some countries, it engendered a certain degree of reluctance in relying on the concept to protect democracy from its poten-tial enemies. For example, Spain and its judiciary have avoided it in the Batasuna context (see Chapter 7), while the European Court of Human Rights has accepted the militant democracy approach in practice, but declined to explicitly endorse it, referring to the so- called ‘abuse clause’ instead (see Chapter 5). Such situations do not speak in favour of militant democracy as a universal safeguard of democracy, yet by the same token they do not make good the case for completely abandoning it is as an important safeguard of democracy. A second practical observation is closely related to the first one. Militant democracy is considered in this book as a set of preventive legal measures that might restrict certain rights and freedoms to protect democracy from being destroyed by internal antidemocratic forces. In this respect, demo-cracies applying militant democracy measures face the same problem as they would with any other preventive rights- restricting techniques – they are prone to excess.20 There are legitimate concerns that militant democracy can ‘cast its net too widely’21 and capture far more than is needed to sustain democracy. In this respect, the justification given by the government for militant democracy measures might be highly contested by political oppon-ents and supporters of the liberal view of democracy, given the absence of a general and precise definition of militant democracy and its preventive rights- restricting nature. Further, and more worryingly, the rhetoric of militant democracy can be manipulated and misused by politicians – especially those in charge of ‘con-tested’ liberal democracies – in the name of supposedly ‘real democracy’. Militant democracy does pose a danger of being misused or even abused, but not solely for the reasons just mentioned. Very often militant democracy comes dangerously close to politics, and therefore poses a risk of being misused for political purposes. Preventing scenarios where the leading polit-ical groups resort to militant democracy measures to silence political oppon-ents or other unwelcomes can be construed as one of the most serious challenges of militant democracy. Constitutional theory and practice is very


much occupied with the task of developing an account of how to recognise legitimate targets of militant democracy measures and to distinguish these from instances where militant democracy is utilised to suppress political competition and silence opposition. As of yet, there is no clear and precise technique that has been developed to detect and prevent abusive militant democracy practices. The practical application of militant democracy is further complicated by the difficulty of selecting the right moment to invoke such measures. It is not easy to draw a clear line between acceptable critiques of a democratic regime and a direct or indirect attack on the foundations of the regime. That is, how can we define the point at which democracy is endangered and, more importantly, who should make such a decision? Constitutional theory and practice cannot provide any general instructions to democracies on how to deal with this matter due to the diversity of constitutional experiences and the various arrangements that modern democracies provide. The difficulty in systemising definitional approaches on when to invoke militant democracy measures and militant democracy practice in general can be explained by the fact that no two democracies are ‘like peas in a pod’,22 as every society opts for the form of democracy and protective measures it considers correct, fitting, or tolerable. It is important to acknowledge that the application of militant democracy can be difficult in terms of its effectiveness, even where such measures appear to be justified. In practice, the former does not presuppose the latter and the application of militant democracy can be surrounded by various difficulties questioning its effectiveness. For example, in Turkey, militant democracy as practised by the government and Constitutional Court has created an ‘unhealthy’ political climate where political parties with unwelcome agendas have been forced to develop a so- called ‘spare- party’ system23 in order to con-tinue engaging in politics. Further, where a state decides to ban political parties it may have to face disgruntled voters who supported the party and have now lost their ‘voice’ in the parliament. Such a situation occurred in Turkey in 1998 when Refah Partisi (the Welfare Party, Refah) was dissolved by the Turkish Constitutional Court. When the government lodged its application to dissolve the party, Refah had approximately 22 per cent of the votes from the general election of 24 December 1995 and about 35 per cent of the votes from the local elections of 3 November 1996. The results of the 1995 general election made Refah the largest political party in Turkey with a total of 158 seats in the Grand National Assembly (which had 450 members at the relevant time).24 The dissolution of the single largest party would be problematic for any government. Furthermore, preventive oppres-sion has the potential to cause serious problems as it is well known that ‘fear breeds repression [. . .], repression breads hate’.25 There is a justified fear that political groups with aggressive tendencies will become even more violent and disobedient if their associational rights are suppressed. Such concerns were raised in Germany in a recent attempt to dissolve the National


Democratic Party of Germany (which failed in 2003). Germany’s previous experience in the 1990s of using widespread repressive measures against extreme right groups had demonstrated that such an approach would not necessarily halt the rise of violence but would surely result in increased mobilisation by the targeted groups and the calcification of their ideology.26 It is crucial to ensure that militant democracy measures are legitimate, timely, and justified. And it is no less important to apply such measures in an effective way so that they protect democracy and not harm it. The remain-der of this book seeks to demonstrate that this mission is difficult but not impossible. The potential pitfalls and concerns outlined above demonstrate that the concept of militant democracy is still a jarring one despite the substantial constitutional practices in support of it. These observations are preliminary only and are borne out in more detail in the following chapters. But even in preliminary form they should warn the reader that, in this book, militant democracy is not treated as a panacea for every democracy in every tribula-tion. At the same time it should not be interpreted as discouraging demo-cracies from considering militant democracy measures in situations where democratic systems come under fire and where their continued existence is at stake. Rather, this analysis signals that militant democracy requires careful consideration and strong justifications to form a part of legitimate and effective democratic governance. The constitutional practice of various states suggests that democracies attempt to follow this advice and provides ample evidence that the numerous risks and challenges described above do not deter democracies from opting to use militant democracy measures. Instead, it is argued that militant democracy is emerging as a new archetype of state-hood27 and over the past few decades it has developed as an important way of understanding constitutional systems around the world.

2.2 The justification of militant democracy; and how to overcome the risks

The previous section outlined the major theoretical and practical pitfalls inherent in the application of militant democracy in practice. These pitfalls are especially evident where countries wish to stay true to principles of liberal democracy while attempting to defend against threats to their exist-ence. One may legitimately question whether a concept with so much poten-tial danger is at all appropriate for democracies. In attempting to address this concern it is important to consider what democratic and constitutional theory and practice offer as justifications for militant democracy. Notably, there can be detected in the literature a certain degree of consensus and acceptance of one of the most significant democratic dilemmas, outlined in detail in Chapter 1. But there are clearly two camps with opposite views on the question of how democracies should respond to the paradox of tolerance. The first camp, comprised of supporters and advocates of liberal political


theory, argues in favour of accommodating all political views and ideas within the electoral space without regard to their content. However, it appears that the risks posed by intolerant groups ‘has not been a major concern of liberal theory of late’,28 such that proponents of this first camp often appear overly optimistic about the intrinsic strength of democratic institutions and processes. The twentieth century is a case in point, as true disasters were brought about by democratic fundamentalism, followed by the collapse of communism and democratisation of many countries in various parts of the world. These processes demonstrate that democracy in times of stress and democratic projects in progress need more solid legal bases to ensure their continued existence as democracies. For this reason there is another camp, which supports ideas of militant or disciplined democracy in keeping with the famous words of Louis de Saint- Just: ‘no liberty for the enemies of liberty’. This view can be interpreted as the very antithesis of the Western liberal tradition, but could it possibly be justified when democra-cy’s operation and existence is in danger? Loewenstein, who coined the term ‘militant democracy’, was perfectly aware of the available critiques of his solution, and he suggests a simple and straightforward – at least in theory – justification for the possible negative effects on fundamental rights and freedoms where militant democracy meas-ures are applied. He has a firm belief in liberalism as a spiritual movement that has survived various hardships but nevertheless managed to conquer the world in the second half of the nineteenth century. He continues that demo-cracy has proven to be an immortal idea. In light of these considerations, Loewenstein’s solution is relatively straightforward: once fundamental rights are institutionalised and taken seriously, their temporary suspension in the name of democratic self- preservation is justified.29 He continues that ‘if democracy believes in the superiority of its absolute values’30 over the pol-itics of emotions, it must meet the demands of reality and make every effort to rescue it, ‘even at the risk and cost of violating fundamental rights’.31 According to Loewenstein, the ultimate end of a liberal government is human dignity and freedom, and governments can and should take preven-tive legal measures, sometimes even aggressive ones, to ensure progress towards that end. Another set of arguments related to the justification of militant demo-cracy emerges from the debate around whether and in what circumstances democracies should tolerate intolerant political actors. One view is that an intolerant reaction from democracies is justified by the mere presence of intolerant actors in the first instance. Thus, John Locke, as mentioned in Chapter 1, notes that ‘the state’s tolerance cannot be extended to those who (in the name of religion) are not willing to be tolerant [of] others’.32 Karl Popper claims that ‘unlimited tolerance must lead to the disappearance of tolerance’.33 These views suggest that intolerance can be invoked (tempor-arily) for the sake of preserving tolerance. John Rawls concludes that intoler-ant groups do not have any entitlement to complain if they are not tolerated


by the majority because a ‘person’s right to complain is limited to violations of principles he acknowledges himself ’.34 Although Rawls centres his legal philosophy on his knowledge and experience of American constitutionalism, and strongly believes in the natural strength of free institutions and the inherent stability of a just constitution, he agrees that limits on freedom of the intolerant can be legitimate and justified where a constitutional system seems to be incapable of withstanding the forthcoming crises.35

Other justifications of militant democracy attempt to address the so- called paradox of majority. This paradox can be found in early works of the well- known advocate for states governed by emergency rule, Carl Schmitt. He claimed that constitutional theory and practice should praise the so- called ‘unalterable core’ of the constitution. His book Legality and Legiti-macy36 explained the problem of democratic states regarding their adherence to the robust regime of proceduralism: in the absence of particular substan-tive norms, democracy becomes defenceless against organised political forces such as communism or national socialism. It has already been outlined in Chapter 1 that Schmitt argues in favour of certain substantive principles in democratic constitutions which cannot be overlooked or abolished, even when prescribed procedures are fully followed.37 The idea of the unalterable core may serve as an ideal basis by which to legitimise democracy’s self- protective measures. Thus, the Schmittian justification of the militant char-acter of democracy primarily aims to prevent the paradox of majority rule becoming reality by ensuring that the foundations of the constitutional order can be suspended through a prescribed procedure. Sajó develops this argu-ment further and observes that democracy based on majority rule could lead to the deformation of democracy and the establishment of regimes that dis-solve it. In the light of this observation, he claims that the state’s most natural characteristic is self- defence, and that militant democracy can be jus-tified with this characteristic in mind.38 The instinct of democratic self- preservation is inherent to the nature of democracy, which is otherwise nonsensical and susceptible to the threat of overthrow from within. More-over, democracies are often less troubled by this rationale where specific historical experience has empirically justified its logic and moulded the par-ticular democracy to have a precautionary character.39 In other words, a democratic constitution should not be a suicide pact and should incorporate guarantees of its self- preservation to prevent the suspension and alteration of the basic democratic features of current constitutional structures. A parallel can be drawn with an individual selling himself into slavery.40 In the same vein, democratic principles encouraging dissent and debate on important public issues is not to be understood as permitting their alienation.41

Another major pitfall of militant democracy that needs to be addressed here is the claim that the concept was tailored to mid- twentieth century fascism and is therefore irrelevant to modern politics and constitutional prac-tices. It is undisputed that Loewenstein’s version of militant democracy looks a lot like a set of guidelines on how to resist a particular political


movement (fascism) in a particular constitutional context (the Weimar Republic). But given that Loewenstein centres his argument on the premise that the fascist movement had mastered skills of exploiting the emotions of the electorate to achieve their political goals, his understanding of militant democracy can be extended beyond the context of events following the col-lapse of Weimar. For example, Sajó argues that militant democracy is not merely

a general theory and practice of the protection of the constitution, but it can be perceived as a set of measures directed against radical emotional-ism, a technique that may be relevant in all situations where emotional-ism takes over the political process.42

In other words, Loewenstein’s concern about emotionalism is linked to a fundamental contradiction of democracy: emotionalism is inherent in demo-cracy.43 Otherwise put, emotional politics is not exclusive to fascism. In the modern setting, emotional politics does not always have the tragic and neg-ative connotations it once did, and its emergence can be easily identified – for instance, in situations where a new social and political identity is being formed. There are a number of other trends in contemporary politics that are based on emotionalism too, such as those with religious or ethnic origins. Therefore, the argument that the concept of militant democracy as intro-duced by Loewenstein is irrelevant to our present context is inaccurate to say the least. Constitutional practices of various democratic states support this conclusion, especially when we consider that the concept of militant demo-cracy in the past decade or so has occupied new and more complex terrain well beyond disciplining intolerant political actors so that they comply with rules of electoral processes.44 If we are to accept this finding and acknow-ledge that emotional politics is a reality that indeed poses a risk to demo-cracy even today, it follows that there are legal measures democracies need to take. According to Loewenstein, the easiest way of overcoming emotionalism in politics (including the fascist scenario) is to outdo it with similar emo-tional devices.45 However, no democratic state is capable of employing such techniques, as democracy being a rational enterprise (in the Weberian sense) is incapable of meeting an emotional attack with an emotional counter- attack, and ‘constitutional government, by its very nature, can appeal only to reason’.46 Realistically, the defence of democracy can be effectuated only through political and legislative means based on reason. Therefore, the concept of militant democracy should remain one of the safeguards demo-cracies can resort to in offsetting emotionalism in politics. One of the most challenging concerns for the practical application of militant democracy is the difficulty in defining the precise moment when such measures need to take place, and to ensure they are not misused or abused for political purposes. These questions are important but are no more difficult than questions such as ‘how can one be a good democratic ruler?’ or


‘what does it take to create an ideal government?’ It is well known that in representative democracy people delegate the right to decide how the country should be governed to an elected and accountable parliament and executive. There is always a risk that governments might run into contradic-tion with an electorate’s will, opinion, and expectations, which in theory should result in the discontinuation of their office with the next election. In stable and well- functioning democracies, traditional elements of democratic governance such as separation of powers, systems of checks and balances, rep-resentative governments, independent judiciaries, and protections of indi-vidual rights and freedoms are key instruments to prevent the abuse or misuse of power. These checks and balances are applicable to all spheres of life and politics, including when a government needs to take action to protect or rescue democracy. Answers to the questions posed above should be in keeping with more general questions of how to prevent the abusive use of powers. The concept of militant democracy and its practical application is no different from any other political decisions governments take every day. It is, however, one that poses a great responsibility on government, as taking measures to protect democracy and the integrity of its system is an important mission. However, governments should not mislead other branches of power nor the voters into thinking that taking a militant stance against the poten-tial enemies of democracy requires extraordinary measures, such as doing away with established democratic procedures to monitor governmental actions. Militant democracy has only limited legitimacy and not every action taken by governments can be morally justified by the underlying rationale of protection of democratic structures. Militant democracy measures are accept-able only insofar as there are strong procedural and institutional guarantees to ensure that limitations on individual rights and freedoms are not misused in the name of protecting democratic structures. The negative impact of various militant democracy measures on individuals might be quite dramatic in some cases.47 Thus, it is common to point to the fact that constitutional and legislative norms on human rights can potentially wield sufficient power to counteract such policies48 and that individual rights ‘should be protected as a central and constant feature of the modern democratic state’.49

Finally, the absence of a general legal or proper normative theory of militant democracy needs to be addressed. Such a situation is by no means surprising given the deep differences that exist between the historical, social, cultural, and legal circumstances of various democracies. In fact, every constitution is a reflection of its society’s history, fears, and hopes.50 In this respect, it is unwise to attempt to define the constitutional concept of militant democracy in precise and definite terms. Such an attempt would limit the meaning and application of the concept and would make it resist-ant to new developments and threats that democracies will have to face in future generations. Militant democracy is not a universal stencil that can be applied to any democratic state in strife. Rather it is a concept with a precise purpose, conditions of legitimacy, and fundamental features: the particular


characteristics of every democracy and every application of such measures complement these features with their own meaning and justification. This is why legal and political theory has not been capable so far of providing a general normative framework for the concept of militant democracy. This book aims to fill this gap by providing a thematic treatment of militant democracy practices in a wide range of jurisdictions. It should be noted that each case is context- dependent and may have its own distinctive requirements and idiosyncrasies. There are, however, a few general trends that can be identified in constitutional theory and practice. First of all, governments in stable democracies with strong traditions of the separation of powers, judicial review, and protection of human rights may find it challenging to justify the use of militant democracy measures. Loe-wenstein states that he finds it difficult to foresee how measures similar to those adopted in Europe in the 1920s can be reconciled with ideals of Amer-ican constitutionalism. Similar views are entertained in more recent publica-tions. For example, Issaharoff argues that American constitutionalism favours a heavy presumption towards speech, stability in politics, and a proportional representation system, making the idea of militant democracy unthinkable unless there is a clear and present danger.51 As Muller states, ‘liberals and democrats, especially in the United States, might still feel queasy about militant democracy’.52 Ruti Teitel offers support for this point of view based on the argument that rights in the US Constitution are framed in a radically individualistic fashion such that militant democracy measures are simply not needed.53 Teitel also suggests

militant constitutional democracy ought to be understood as belonging to transitional constitutionalism, associated with periods of political transformation that often demand closer judicial vigilance in the pres-ence of fledging and often fragile democratic institutions; it may not be appropriate for mature liberal democracies.54

To some extent this view is supported by the judiciary. For instance, the European Court of Human Rights pointed out that for non- transitional countries militant democracy measures, such as limitations imposed on political participation rights, are more difficult to justify and stricter scrutiny should therefore be exercised by the courts.55

The justification of militant democracy can also vary for different measures and rationales. For instance, a willingness to resort to procedures to dissolve political parties can be explained by reference to the authoritarian past of the state. Such an approach that deals with a particular past wrongdoing, and targets only those with a proven record of treating democracy and democrats as enemies – as opposed to a broader legal regime that casts its net indiscrim-inately – can be regarded as more justified or at least less controversial. Constitutional theory offers several justifications for the militant stance democracy can take towards its potential enemies. First, democracy in and of


itself has certain problems and weaknesses. Those with an awareness of democratic fundamentalism might develop political technologies adjusted to such phenomena and use it for the purpose of destroying the democratic order. In order to avoid such events, democracy should overstep its legalistic blindness and be prepared to neutralise one of the major enemies of demo-cracy, namely the politics of emotions. While this enemy was identified in Karl Loewenstein’s essays, political populism continues to be a troubling feature of many modern democratic states.56 Furthermore, a purely proced-ural view of democracy cannot guarantee that a majority will not decide to vote one day that a tyrant should rule, and that democracy be abolished and replaced with another regime. The only way to prevent such majoritarianism is for democracy to become substantive and take into account the content of majority decisions. To overcome the criticism that militant democracy intrudes upon fundamental rights and liberties to protect them, one can counteract with the argument that militant democracy measures ideally target only those who disrespect the democratic order. So, unless someone intends to use democratic institutions themselves to abolish democracy, citizens are safe from being oppressed and limited in their freedoms by militant democracy measures. This reaction of democracy is an answer to the paradox of tolerance: unlimited tolerance of democracy’s enemies could be detrimental to democracy. Additionally, militant democracy can go further than simply imposing limits on the substance of majority decisions, but can also prevent a situation where ‘majority [is] captured by intolerant minority’. There have been many examples of intolerant minorities utilising the weaknesses of the democratic structure and managing to gain power, only to then abolish democracy without the support of the majority (such as in the Weimar Republic). The preventive nature of militant democracy, aimed at preservation of democratic structures and the ultimate goal of protecting rights and dignity, can ‘filter’ such movements and stop them before an intolerant minority empowers itself to a degree where it is able to damage or even overthrow a democracy. There are two final points relevant to the debate on justifying militant democracy, both derived from its practice. The first observation is that there currently are no realistic alternatives to militant democracy for rescuing a democracy when its existence is endangered.57 The idea that ‘democracy should refrain from providing legal regulations and measures of a “militant” provenance and (mainly or solely) rely on self- regulative powers of the elect-oral and political processes’58 is idealistic, but is not realistic, especially for transitional or fragile democracies.59 The second observation is that the necessity to have certain self- preservation measures in democratic constitu-tions is dictated by the tragic events of the past. While it is very unlikely that something like communism or fascism will re- emerge, and while the existence of democracy and declarations of rights is currently not at any risk of being transformed into a ‘suicide pact’,60 the last couple of decades have demonstrated that democracy is accepted worldwide as the only structure of


the state, even though it is not yet completely secured from ideological and physical attacks from within and without. As Loewenstein states at the end of his essay, ‘to neglect the experience of democracies deceased would be tan-tamount to surrender for democracies living’.61 Therefore, keeping in mind the tragedies of the past, and in the absence of any realistic alternatives, militant democracy appears to be a justified concept so long as it is ‘capable of excluding conceptually and institutionally the abuse of opportunities for restricting rights’.62

The justification of militant democracy measures as invoked in practice by various democracies is the subject matter of the rest of this book. This issue will be revisited in the concluding part of this book in an attempt to reconcile theory and practice and to see how the above arguments have been interpreted in the constitutional jurisprudence of various democracies.

Notes

1 Markus Thiel, ‘Comparative Aspects’, in Markus Thiel (ed.), The ‘Militant Demo-cracy’ Principle in Modern Democracies (Ashgate 2009), 417.

2 Whitney v. California, 274 US 357, 374–7 (1927) (Brandeis, J., concurring); Abrams v. United States, 250 US 616, 627, 630 (1919) (Holmes, J., dissenting).

3 Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harvard Law Review, 1412. 4 Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I, II’ (1937) 31

American Political Science Review, 431. 5 Ibid. 6 Ibid. 658. 7 Ibid. 657. 8 Ibid. 658. 9 Cited in Joseph W Bendersky, ‘Horkheimer, “Militant Democracy,” and War’

Telos Scope, 14 March 2009, available at www.telospress.com/horkheimer- militant-democracy- and-war, accessed 30 June 2014.

10 Loewenstein above n 4, 432.11 This maxim is known more as Inter arma enim silent leges (In times of war, the law

falls silent).12 Loewenstein above n 4, 428.13 Miguel Revenga Sanchez, ‘The Move Towards (And the Struggle For) Militant

Democracy in Spain’ (2003) European Consortium on Political Research Conference Paper, Marburg, 18–21 September 2003.

14 András Sajó, ‘Militant Democracy and Emotional Politics’ (2012) 19(4) Constellations, 563.

15 Ibid.16 Counter- terrorism legislation and various definitions associated with these pol-

icies are recent examples of such a phenomenon.17 Sajó above n 14, 565.18 Ibid.19 Ibid.20 Ibid. 562.21 Peter Niesen, ‘Anti- Extremism, Negative Republicanism, Civic Society: Three

Paradigms for Banning Political Parties’ (2002) 1, 2 German Law Journal, 3.


22 Thiel above n 1, 398.23 Turkey and its militant democracy practice will be discussed in Chapter 9. The

term ‘spare- party’ system is adopted from Dicle Kogacioglu, ‘Progress, Unity, and Democracy: Dissolving Political Parties in Turkey’ (2004) 38 Law and Society Review, 435.

24 In addition, on 28 June 1996, the Refah Party came to power by forming a coali-tion government with the centre- right True Path Party (Doðru Yol Partisi), led by Mrs Tansu Ciller. According to an opinion poll carried out in January 1997, if a general election had been held at that time, Refah would have obtained 38 per cent of the votes. The same poll predicted that Refah might obtain 67 per cent of the votes in the general election to be held roughly four years later. See Case of Refah Partisi (the Welfare Party) and Others v. Turkey (2001) (Applications no. 41340/98, 413428, 41343/98 and 41344/98).

25 Whitney v. California 274 US 357, 375 (1927).26 See, for example, Michael Minkenberg, ‘Repression and Reaction: Militant

Democracy and the Radical Right in Germany and France’ (2006) 40 Patterns of Prejudice 43–4. For more details on this concern in the German context, see Chapter 4.

27 Patrick Macklem, ‘Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe’ (2012) 19(4) Constellations, 576.

28 Issacharoff above n 3, 1412.29 Loewenstein above n 4, 432.30 Ibid.31 Ibid.32 John Locke, A Letter Concerning Toleration: Latin and English Texts (Ed. Mario

Montuori) (Martinus Nijhoff, 1963).33 Karl Popper, The Open Society and its Enemies (Princeton University Press

1950), 546.34 Gregory H Fox and George Nolte, ‘Intolerant Democracies’ (1995) 36 Harvard

International Law Journal, 18.35 John Rawls, A Theory of Justice (Harvard University Press 1971), 219.36 Carl Schmitt, Legality and Legitimacy, translated and edited by Jeffrey Seitzer

with an introduction by John P. McCormick (Duke University Press 2004).37 Fox and Nolte above n 34, 19.38 András Sajó, ‘Militant Democracy and Transition Towards Democracy’, in András

Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 213.39 Ibid. 215.40 Fox and Nolte (above n 34) cite the following piece from John Stuart Mill, On

Liberty (1962):

By selling himself for a slave, he abdicates his liberty; he forgoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. . . . The principle of freedom cannot require that he should be free not to be free. It is not freedom, to be allowed to alienate his freedom.

Mill himself borrows his argument from Humboldt.41 Fox and Nolte above n 34, 16.42 Sajó above n 14, 562.43 Ibid. 563.


44 For examples of the extension of militant democracy application, see further Parts III and IV of this book.

45 Loewenstein above n 4, 428.46 Ibid.47 For example, Chapters 9 and 10 discuss in details the case of the Refah Party,

which was the biggest party in Turkey at a time of dissolution.48 Loewenstein above n 4, 432; Sajó above n 38, 211. In the modern context, see

Keith D Ewing and Joo- Cheong Tham, ‘The Continuing Futility of the Human Rights Act’ (2008) Public Law Review, 668; Aileen Kavanagh, ‘Constitutional-ism, Counterterrorism, and the Courts: Changes in the British Constitutional Landscape’ (2011) 9 International Journal of Constitutional Law, 172.

49 Fiona De Londras and Fegral F Davis, ‘Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms’ (2010) 30 Oxford Journal of Legal Studies, 45.

50 For example, Sajó argues that often constitutions are written out of fear of earlier despotic power. See András Sajó, Limiting Government: an Introduction to Constitu-tionalism (Central European University Press 1999), 13.

51 Issacharoff above n 3.52 Jan- Werner Muller, ‘A Practical Dilemma Which Philosophy Alone Cannot


53 Ruti Teitel, ‘Militating Democracy: Comparative Constitutional Perspectives’ (2007) 29(1) Michigan Journal of International Law, 49.

54 Ibid.55 Republican Party of Russia v. Russia (2011) (Application no. 12976/07).56 For example, right- wing populism is present in the political environment of

some European states. See, for example, Chantal Mouffe, ‘The Limits of Liberal Pluralism: Towards an Agonistic Multipolar World Order’, in András Sajó, Militant Democracy (Eleven International Publishing 2004), 71–4. For a detailed account of populist politics in Central and Eastern Europe, see Grigorij Meseznikov, Olga Gyarfasova, and Daniel Smilov, Populist Politics and Liberal Democracy in Central and Eastern Europe (Institute for Public Affairs 2008).

57 Thiel above n 1, 417.58 Ibid.59 For example, Peter Niesen argues that ‘Civic Society’ should be a new desirable

paradigm for party ban. See Niesen above n 21. See also Gunter Frankenberg, ‘Learning the Sovereign’, in András Sajó, Militant Democracy (Eleven International Publishing 2004), 130–2; Thiel above n 1, 417–21.

60 Sanchez above n 13, 6.61 Loewenstein above n 4, 658.62 Sajó above n 38, 211.

3 The concept of militant democracy in the practice of modern states

3.1 Militant democracy in practice: from Karl Loewenstein to contemporary states

The constitutional practice of contemporary democracies reveals that it is hard to find a modern constitution completely lacking militant democracy provisions, even where there is no precise reference to the militant character of a state. Often, it can be inferred from the text of constitutional provisions and preambles.1 In this respect, Pfersmann, for example, claims that demo-cracies are always more or less militant, as the legal structure of militant democracy is on ‘a scale of degree with other forms of democracy’.2 Sajó sup-ports this argument further by claiming that the state’s most natural charac-teristic is self- defence,3 and if we are to accept these statements, then it is only logical to assume there are at least traces of militant democracy in the constitutional framework of most contemporary democracies. However, in order to identify a particular democratic regime as militant or purely liberal, it is helpful to examine certain items that might assist in determining whether to classify a state as a militant democracy (a ‘checklist’). First, it is important to be aware that it is not only national constitutions that should be scrutinised to detect the presence of militant democracy measures, but ordinary legislation as well. Second, it is helpful to have a list of measures that are considered to belong to the militant democracy ‘arsenal’. Third, it is desirable to delineate the borders of militant democracy measures and dis-tinguish them from other regimes where human rights might be limited, such as states of emergency and ordinary rights limitations. Once these three aspects of a militant democracy state are clarified, it should be possible to formulate a list of contemporary militant democracies – or at least ascertain how many states might be on that list. Notably, the militancy of a particular constitutional system cannot ordi-narily be determined by the text of its national constitution alone. Examples exist of constitutions being silent about any measures of a militant demo-cracy character, yet where militancy was added by ordinary legislation, as occurred, for instance, in Spain. The Spanish Constitution of 1978 does not reserve any powers for state institutions nor does it refer to militant


democracy measures. However, such features were added in 2002 when the Law on Political Parties was adopted to introduce a procedure to ban polit-ical parties from politics for certain proscribed activities.4 It does not, however, follow that militant democracy in Spain is unconstitutional. The Law was later held to be compatible with constitutional principles and standards and it thereby became an element of the constitutional regime.5 In this way, Spain has now become a militant democracy, many years after its post- Franco democratic constitution was adopted.6 Also, some states may attempt to hide or mask their endorsement of the concept of militant demo-cracy, as the idea is often seen as contrary to the very idea of a liberal demo-cracy and can seem too aggressive to be employed in a true democracy (again, Spain illustrates this case very well). The question of the ideal ‘domi-cile’ of militant democracy is a challenging one. Pfersmann, for example, admits that once militant democracy elements are introduced through ordinary legislation, the relation between that legislation and constitutional principles might become problematic.7 The only way to overcome this diffi-culty is, according to Pfersmann, to entrench the measures into the constitu-tion directly. While at a superficial level this option might seem a plausible way to solve potential contradictions, it becomes less realistic when taking into account the complexity and length of constitutional amendment pro-cesses, let alone the inherent rigidity of some constitutions. It therefore seems unreasonable to reject the possibility of enacting militant democracy measures through the regular legislative process. The question of the ‘domi-cile of militancy’ is arguably incapable of being answered in general terms, and the appropriate method will depend on the particular legal system.8

The second item on the checklist is the arsenal of militant democracy measures. Loewenstein himself made a contribution to this debate around which practices can amount to militant democracy. One of his essays pub-lished in 1937 provides a survey of measures adopted to combat radical, but predominantly fascist, movements in France, Belgium, the Netherlands, England, the Irish Free State, Sweden, Norway, Denmark, Finland, Switzer-land, and Czechoslovakia. While the legislation he analysed was directed against fascist or national socialist movements, he mentioned that most of the jurisdictions attempted to achieve ideologically neutral laws and regula-tions, directing legislation against subversive movements and groups in general.9 Loewenstein’s ‘systematic account of anti- fascist legislation in Europe’10 offers 14 groups of legislative measures employed to fight fascism and other dangerous movements.11 However, his list of militant democracy measures might be seen to extend beyond the traditional understanding of the militant democracy concept. For example, many measures listed by Loe-wenstein have since migrated to the domain of criminal law and are not con-sidered as controversial or illiberal by the majority of contemporary liberal democracies, such as the prohibition on wearing firearms and the formation of paramilitary armies. Loewenstein’s list captures all legal provisions directed against any kind of extremist behaviour, including open calls to

Militant democracy and modern states 43

violence, rebellion, high treason, and the formation of armies. However, militant democracy in practice is more complex than simply a set of meas-ures to deal with all forms of violence and dangerous behaviour directed against the state’s structures and its population. It was acknowledged in Chapters 1 and 2 that Loewenstein’s vision of militant democracy is ‘natur-ally . . . dated and rooted in a historical situation completely different from the present’.12 But unlike his justification for a militant stance in democracy – which is still valid today – the contemporary experience of entrenching militant democracy measures into constitutions and applying them in prac-tice is a far cry from what Loewenstein had envisaged. In what follows, I will attempt to identify the most common contemporary features of militant democracy as manifested in practice, and to guide the reader through the states’ practices themselves. Militant democracy debates are centred primarily on the analysis of state practices. The debate is clearly linked to the list of militant democracy meas-ures and attempts a theoretical level to classify them into different groups. The starting point for this exercise is traditionally Germany, a cradle of the constitutional militant democracy and a state that gave life to the concept by elevating it to the constitutional level. The model of militant democracy as employed by Germany is crucial to investigate, not only because Germany was the first constitutional militant democracy state, but also because it represents a balanced and careful approach to how tragic mistakes in the past might be cured and prevented through innovative constitutional arrange-ments.13 The first element of the militant democracy state in Germany is the non- amendable character of certain constitutional provisions considered to be fundamental to the constitutional system. German Basic Law provides a constitutional safeguard that prevents the alteration of some provisions, even by unanimity.14 Most of those values and principles protected from amendment were disregarded and dismissed during the Nazi regime,15 which explains the intention of the drafters of the Basic Law to prevent that happening in the future. The paradox of democratic tolerance is clearly addressed in a few provisions of the German Basic Law.16 First, Article 18 of the Basic Law allows the forfeiture of basic rights (a procedure which was never invoked in practice).17 The idea behind this provision is that individuals who abuse certain rights in order to eliminate the free democratic basic order can be denied the exercise of those same rights by the Federal Constitutional Court.18 Further, Article 9(II) provides an avenue to limit basic rights, such as freedom of association. It prohibits associations, purposes, and activities which are directed against the constitutional order or the concept of international understanding. Another central element of German militant democracy is Article 21 of the Basic Law, which envisages a procedure for a political party to be outlawed and declared unconstitutional by the Federal Constitutional Court.19 Under this provision, political parties are recognised as an indispensable element of democracy. Article 21 of the Basic Law reflects the intention to give a status to political parties, which is


different from other kinds of social organisations protected by Article 9. Political parties are no longer an ‘extra- constitutional’20 phenomenon, and the Basic Law has accordingly granted them a special status: indeed, this was the first positive recognition of political parties ever in German history.21 At the same time, Article 21 imposes certain limitations on the internal structure of political parties and aims to ensure that freedom granted to parties will not be used for the purpose of disrupting and destroying the democratic government. After the Weimar experience, the state could not feasibly leave political parties and associations without control, and so, since 1949, political parties seeking to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany have been kept in line by the threat of being banned. Finally, the German interpretation of militant democracy includes the regulation of public servant activities: Article 33(5) establishes conditions of access to civil service, known as ‘a duty of loyalty’. This measure was widely implemented in practice in Germany in the 1970s and provoked serious criticism as to its legitimacy and effectiveness (this aspect of Germany’s militant democracy will be investigated in detail in Chapter 4). The German constitutional project fully implemented Loewenstein’s arguments that democracies should not remain inactive, but rather should take some preventive measures to protect themselves from being destroyed from within. However, the first example of constitutional militancy differs quite substantially from Loewenstein’s suggestions in terms of his proposed list of measures. This is not to say that Germany does not have any legal provisions against rebellion, the formation of paramilitary armies, manufacturing, and wearing firearms. These provisions did not find constitutional endorsement and so migrated to the domain of criminal law. That is why, today, militant democracy is most commonly understood as the fight against radical movements, especially political parties and their activ-ities. Having said this, it does not follow that party bans are the only, or even the most sensational, element of militant democracy. Germany became the first country where militant democracy was overtly elevated to a constitutional level, with the adoption of the German Basic Law of 1949 to respond to the tragic events of the past. Shortly after, militant democracy became a preventive technique against a new enemy of many democracies at that time: the communist regime. The next phase in the development of militant democracy as a constitutionally recognised legal structure designed to assist in democracy’s self- preservation was the collapse of the communist regime on the European continent. Many young demo-cracies in Central and Eastern Europe followed the German example and introduced various elements of militant democracy in their new constitu-tions, mostly in relation to restrictions imposed on political parties. In all the instances listed above, militant democracy was typically inter-preted as a tool to fight the abuse of the electoral process and to suppress the activities of political organisations – most notably political parties. But


constitutional theory and practice can accommodate new realities of social and political life in the domestic and international legal space. ‘Every gener-ation [has] its own disease’,22 and each is fully applicable to the ‘life’ of democracy. The ideals of constitutional patriotism and democratic romanti-cism were given up some time ago as viable ways to rescue democracy by ridding ‘societies of unjust and oppressive forms of political rule’23 (fascist and communist movements). In their absence, it is only logical to equip democracies with the means to stand up against the ‘enemies’ of new genera-tions. Loewenstein’s slogan ‘fire is fought with fire’ remains apt. However, the fight is no longer limited to the banning of political parties, and the enemies of democracy are no longer just those with communist and fascist agendas. Militant democracy and its logic might be applied and justified in a much wider range of cases than has traditionally been contemplated, especially in the light of events which have recently dominated constitutional debate, such as the so- called ‘war on terror’ and the threat of religious fundament-alism.24 Scholars of law and political science began debating a fresh range of issues: whether Islam is compatible with democracy;25 how might the demo-cratic principle of secularism be re- interpreted in light of this new reality;26 and how can one fight terrorism in the political arena within the bounds of the rule of law?27 Constitutional practice of the last decade demonstrates that the scope of application of militant democracy has now extended beyond the mere prohibition of political parties. For example, today’s militant demo-cracy is being employed in response to some of the latest threats to demo-cracy, such as global terrorism, fundamentalist and coercive religions, and other threats.28 The jurisprudence of the European Court of Human Rights can provide ample evidence that there are cases involving freedom of religion which could be better rationalised and understood through the prism of militant democracy.29 The Court’s jurisprudence involving, for example, the analysis of Islam and Sharia is substantially different from traditional reli-gious association cases.30 Moreover, state responses to the threat of terrorism are also being reviewed through the lens of militant democracy, and this concept seems to have great relevance in the so- called war on terror.31 Sajó points out several similar features between political radicalism and terrorism and proceeds to argue for the relevance of militant democracy considerations to anti- terrorism policies.32 The events of 11 September 2001 brought issues of militant democracy back to the fore of political and legal discourse as many Western- style democracies believe that they became the target of an extremist Islamic movement against the values of Western democracy.33 While parallels between anti- terrorism and militant democracy should be drawn cautiously, there is at least one feature which shows those notions to be closely connected. Leaving aside for one moment the criminal dimension of anti- terrorism policies, it can be observed that the fight against terrorism is based on preventive measures which include not only detention and inter-rogation conducted by intelligence services, but also serious limitations


imposed on the freedoms of speech, association, and religion. Moreover, both notions are based on the assumption that democracies are justified to deny the rights and freedoms of those who disrespect democracy. The translation of militant democracy measures to the anti- terrorism context is clearly symptomatic of the extension of militant democracy gener-ally to a broader sphere of participation in the public discourse. In other words, militant democracy is no longer directed simply to the question of which political parties can compete for elections, but rather who can parti-cipate in political discourse in a general sense. Terrorism and political Islam more generally (as will be demonstrated later in Chapter 9 and 10) are per-ceived as a threat not only to the life of citizens but to the entire democratic structure and constitutional security. If democracy is now concerned with general risk aversion, then new challenges to its structures might be addressed by militant democracy. The depth of theory surrounding militant democracy means that locating our responses within this context rather than the ‘war on terror’ or some other underdeveloped framework provides us with a rich knowledge base and diverse tools with which to respond to emerging crises of legitimacy. These considerations do not help clarify the list of possible militant measures, but they do widen the area of state prac-tices we need to investigate for the purpose of characterising a state as a militant democracy or not. That being said, all the measures listed above do have a few things in common, namely their preventive character, the ration-ale behind the policies, and their target – those who repudiate the values of democracy and attempt to abuse them to harm democratic structures. The final item on the checklist is the distinction between militant democracy and other regimes of human rights limitations. Militant demo-Militant demo-cracy was designed to fight potential abuses of the political process; there-fore, militant democracy measures inevitably interfere with the exercise of civil and political liberties. It is widely accepted that those rights and freedoms are not absolute, and can be limited where democracies find it necessary to legislate so. In this respect, is militant democracy any different from ordinary rights limitation clauses which all democracies practice regardless of their commitment or opposition to the concept of militant democracy? This clarification might provide a further insight into what con-stitutes a militant democracy measure. In both instances, states undertake actions that have a similar purpose – to prevent the abuse of rights granted by the democratic regime. However, militant democracy has a distinct area of application which is narrower than a regime of ordinary rights limitation. Militant democracy, in both its tradi-tional and its extended interpretation, targets only a limited range of rights, being those with the potential to affect the operation of a state as a constitu-tional democracy. That is why limitations imposed on rights like family and private life, and social and economic rights, cannot be justified by the militant democracy rationale.34 Theoretically, various events and individual behaviours can be potentially harmful for democracy. However, militant


democracy focuses on one area of social and political life as a subject of its attention: participation in political and public discourse (albeit a wide inter-pretation of what this is). Therefore, militant democracy measures usually only have a direct effect on a limited number of citizens compared to ordinary rights limitations. Further, militant democracy measures are applied mainly in a case- by-case manner and cannot be invoked in relation to the whole political community. In addition, the application of militant democracy measures always involves the state as a party (it is never applic-able to private civil cases between individuals alone), with all consequences that attach to this for the affected person or group. Taking into account the purpose of militant democracy measures, states can more readily consider the benefits of adopting them and can equally expect courts and the political community to be less stringent about requiring justification for such meas-ures and their possible implications. Where governments can claim to act in the name of protecting democracy, they may feel less compelled to supply convincing and legitimate reasons for their actions. By the same token, indi-viduals or groups of individuals will find it challenging to resist such a dec-laration and defend their rights. In this respect, militant democracy measures are more difficult to challenge than ordinary rights limitations. It appears that militant democracy measures could in general be separated and treated differently to ordinary rights limitations on account of the scope of their protection, the targets of the measures, and the purpose of the limitations. However, where militant democracy is not conceptualised as a constitutional principle, it will often be assumed into the application of ordinary rights limitation clauses. Most of the differences outlined above are applicable to the distinction between a militant democracy and a state of emergency.35 However, one significant element should be added. In stable democracies, a state of emer-gency ought only be introduced rarely and for very short periods, whereas militant democracy measures can remain in place for long periods of time. Moreover, a state of emergency is declared when a disaster is already in pro-gress (or has just finished) and is invoked using a strictly prescribed mech-anism of declaration for states of emergency,36 while militant democracy is a concept of preventive nature, where taking action in advance is the main theme. The issue of distinction between a militant democracy state and a state of emergency can be confusing in situations where a national emer-gency has been engendered by political unrest. While the motives behind both the application of militant democracy measures and the declaration of a state of emergency as responses to politically motivated riots and violence could be similar, the distinction is still present. First of all, a declaration of a state of emergency is a response to events which have already taken place, which by definition is a timeframe in which militant democracy is probably unable to assist. Second, a state of emergency concerns the suspension of certain constitutional norms and guarantees, while the application of militant democracy should always remain within the constitutional


framework. While there are certain non- derogable rights which cannot be limited even during a state of emergency,37 the range of limitations imposed on rights and liberties during a state of emergency are generally of an extra-ordinary character. Third, militant democracy aims to regulate the content and participants of political discourse, while a state of emergency may wander in various directions depending upon its purpose. The latter is aimed to secure the life and health of its citizens from an immediate threat. What follows from the above distinctions to the militant democracy debate? And are there any practical differences for governments and courts if they rely on the concept of militant democracy? It might be argued that if militant democracy is different from other limitations the state may impose on political rights, then it might equally entail a different burden of proof being imposed on the state. It can be considered that states imposing limita-tions on rights in the name of militant democracy may have an easier task proving the necessity of such measures than in cases where rights have been limited on other grounds. In other words, the choice of paradigm in justi-fying a limitation on rights can often have significant practical differences for governments, courts, and individuals. To conclude, militant democracy states are not a rare thing these days. The list of countries where militant democracy is present is, in some approaches, a rather long one. Given that militant features can only be granted to democracies by either national constitutions or ordinary legisla-tion, the list of measures has narrowed since Loewenstein’s time, yet the scope of application of militant democracy has expanded in the past decade or so. The constitutional practices of contemporary democracies reveal that it is hard to find a modern constitutional system completely devoid of any sign of militant democracy, and it should not attract a negative connotation. Self- defence is the state’s most natural characteristic and democracies should make their potential enemies aware that there are legal means at their dis-posal to counteract any efforts to cause harm to democracy from within.

3.2 Militant democracy and transitional constitutionalism

The relationship between militant democracy and transitional constitution-alism is another controversial aspect of militant democratic practice in con-temporary democracies, especially given the fact the concept was ‘reborn’ with the fall of the communist regime in Central and Eastern Europe. Based on the historical account of how militant democracy was put in practice and enunciated in the post- war German Basic Law, can we assume that trans-itional democracies are more likely to take a militant stance towards their potential enemies and that militant democracy is more legitimate in the situation of democratic transition? Loewenstein himself advocated for transitional democracies to utilise militant democracy measures to assist in stabilising the democratic regime


and strengthening its structures. He argued that ‘if democracy is not con-vinced that it has [yet reached] its destination, it must fight on its own plane the technique which serves only the purpose of power. Democracy must become militant.’38 The first real- world case of constitutional militant demo-cracy clearly indicated its deep commitment to Loewenstein’s argument, as militant democracy was introduced with the purpose of protecting the for-mation of democracy by denying its past enemies a chance to claw back any power. The constitutional practices of many ‘young’ democracies also suggest that transitional democracies are more open to militancy than stable demo-cratic regimes: many newly emerged democratic states from Central and Eastern Europe incorporated militant democracy provisions into their consti-tutions and even put some of these into practice.39 Attempting to explain the enthusiasm in militating democracies following the fall of communism, Sajó argues, for example, that many post- communist constitutional states were rather defenceless during transition against the politics of emotion, one of the biggest threats to democracy.40 This was due to the lack of democratic experience and culture, and the presence of various radical elements, such as racism and corruption.41 Sajó identifies a few risks to democracies in the transition period that provoke militant democracy behaviour: the return of communism,42 territorial disintegration, and right- wing extremism.43 During the formation of, and transition to, the constitutional regime, the major task of a fledging democratic government is to ‘rid societies of unjust and oppressive forms of political rule’.44 Therefore, transitional democracies often function on the assumption of endangerment and react with more suspicion to certain activities which might be ignored in stable democratic regimes.45 In situations where memories of previous authorit-arian and oppressive regimes are still fresh and frightening, democratic gov-ernments tend to rely on militant democracy measures to facilitate the process of transition and bar previous rulers from engagement in public debate in any form. For these reasons, some commentators suggest that militant democracy is a phenomenon of transitional constitutionalism only, and that it is more dif-ficult to justify it when put into practice in stable democracies. Already Loe-wenstein warned his readers that his list of measures to confront fascism in various European jurisdictions would be challenging to implement in the United States, with its commitment to keeping the public sphere as free as possible from any state- side intervention. His warning has been echoed in more recent publications taking up the militant democracy debate. For example, Teitel argues that



Issacharoff, while comparing militant democracy practices in Europe against the constitutional traditions in the United States, concludes that ‘some democratic societies are more fragile, and have political structures more porous to antidemocratic elements, than in the United States. That porous-ness requires an ability to restrict the capture of governmental authority by those who would subvert democracy altogether’, and he continues that ‘in order to manage the unique threats that arise from that distinct political realm, fragile democracies need the ability to discipline electoral activ-ity. . . .’47 Similar observations can be drawn from the jurisprudence of the European Court of Human Rights. Thus, Cariolou summarises the Court’s position on preventive measures against an anticipated overthrow of the democratic government as ‘more easily accepted in the context of fragile democracies, where the past support of violent actions may justify restric-tions in the future political career of individual[s] in terms of standing for national elections’.48 In the recent case of Republican Party of Russia v. Russia,49 the Court confirmed this position in relation to militant democracy measures exercised during democratic transition, and stated that they are more difficult to justify with the passage of time.50

It is apparent that there is considerable debate about whether new demo-cracies should resort to militant democracy measures in the early years of their existence, including banning political parties, one of the most tradi-tional measures. While many commentators argue that the solution can be more plausibly utilised during democratic transitions, the answer to this question is not so straightforward. Militant democracy measures during transition can assist in countering the re- emergence of former ruling parties, and can therefore greatly contribute to political stabilisation.51 On the other hand, suppression of political liberties in a transitioning democratic system might cause more controversies and could pose a very challenging task for the judiciary to rule on the dissolution of political parties (or any other similar measures) in a situation where democratic structures are still too fragile to ensure the right balance between freedoms and the need to protect democracy. In this respect, there are examples in support of both approaches. Germany is an example of a democracy where past experience of authorit-arian rule gave rise to a willingness to endorse party dissolution procedures being enunciated in the national constitution and being put in practice. On the other hand, Spain, during its transition to democracy, felt a need to be exceptionally tolerant towards all political ideologies and considered the pos-sibility of party dissolution as a typically authoritarian measure which could have the opposite effect to the promotion of tolerance. Spain, as a so- called ‘incomplete democracy’,52 consciously chose not to resort to party dissolu-tion, not even at the level of adopting constitutional or legislative provisions on the matter. Spain completed its successful transition to democracy after the Franco regime, with the widest possible tolerance towards its past enemies. The country was united around the idea that, to defeat the previous regime and to build a democracy, constitutional intolerance should be


accepted. Nonetheless, Spain had to adopt a militant democracy stance many years after its transition to democracy was initiated.53 Therefore, even ‘com-plete’ democracies may face situations where they feel a need (and have reason) to adopt and apply militant democracy measures. It is hard to contest the statement that stable democracies can usually remain more tolerant to signs of extremism than democracies in transition, yet this is far from a universal truth: there are examples of successful trans-itions in troubled societies without reference to militant democracy and, equally, examples of a desire to introduce party bans even in mature and stable democracies. Moreover, in post- communist democracies the notion of militant democracy in relation to past rulers has had an important symbolic meaning, signifying a total disconnection from the previous regime in the eyes of the citizens and the international community. Nevertheless, Euro-pean post- communist states have so far demonstrated a general hesitance to actively apply available constitutional militant democracy measures during their transition. There are only a very few instances in which sanctions, other than for formal reasons, have been imposed against political parties.54 The infrequent application of party bans is a good sign of a more or less balanced approach that understands the dangers and controversies of militant demo-cracy. This conclusion brings us back to the argument that presence (or absence), as well as the practice, of militant democracy is context- dependent. There is no universal solution as to when militant democracy should be introduced or how democracies should protect themselves, just as there are no two democracies with identical histories and concerns that they wish to address through constitutional militancy.

3.3 Militant democracy: an obligation imposed by public international law?

Part I of this book has aimed to introduce the foundations of the militant democracy debate: the origin of the concept, its place in constitutional and democratic theory, preliminary observations on major theoretical and prac-tical pitfalls of its practical application, and an overview of militant demo-cracy practice by contemporary democracies. As was mentioned several times, militant democracy is best understood and explained by a thorough analysis of its practice in various democracies and in relation to various types of threat. National constitutions, legislation, and jurisprudence are key in defining the meaning of the concept and its place in modern democracies. However, it is a well- known fact that public international law has a promi-nent role in the constitutional development of modern democracies, espe-cially in the domain of human rights and in the context of a commitment to major democratic principles such as the rule of law, separation of powers, and others. In this respect, it seems legitimate to ask if this area of law offers any guidance or suggestions as to whether and when democracies should resort to militant democracy measures. In other words, does public


international law welcome militant democracy approaches, and can the militant character of a democracy be considered a positive obligation imposed on democratic states due to their participation in various inter-national treaties? This question has been raised and discussed quite often in recent legal scholarship, but these debates often overlap with debates on the right to democratic governance (or political participation), and even more with the general notion of ‘democratic society’. This can be explained by the fact that political participation rights are considered as one of the critical tools citizens can use to participate in democratic governance. Furthermore, the freedom to form and join associations, including political parties, belongs to a list of rights and freedoms usually designated as fundamental to demo-cracy.55 There is a vast amount of scholarly interest in the right to participate in democratic governance in international law, and in the extent to which popular participation is needed to have fully legitimate and responsible gov-ernments.56 In this respect, many militant measures might be construed as, or indeed amount to, limitations on the right to participate in democratic governance. That is why public international law, especially in its engage-ment with the right to democratic governance, might be helpful in answer-ing the above question. Probably one of the first reasonably comprehensive accounts of the state of international law on the question of militant democracy was given by Fox and Nolte in their article on intolerant democracies.57 They discuss, at length, whether contemporary international law favours a substantive or pro-cedural view of democracy, and whether there is an obligation that demo-cracies owe to the international community to maintain democratic government. As to the first query, the authors claim that international law in general favours a substantive view of democracy, but at the same time it does not entirely reject the procedural view.58 There are a few examples from international treaties that can be cited in support of the argument, in public international law, that a substantive stance of democracy is more readily wel-comed than a purely procedural one. Thus, Article 22(2) of the International Covenant on Civil and Political Rights (ICCPR) is an example of restricting fundamental rights if it is ‘necessary in democratic society’.59 Further, the authors refer to similar limitation clauses elsewhere, and endorse Oscar Garibaldi’s conclusion that the notion of ‘democracy’ used by the ICCPR contemplates a traditional Western society in which the panoply of rights established by the human rights instruments is respected in theory and in practice.60 Additional support for this argument can be found in various international treaties, such as the European Union admission criteria (also known as the ‘Copenhagen criteria’)61 and the Council of Europe member-ship requirements.62 Further, Fox and Nolte seek to answer the question of whether contemporary international law favours a substantive or procedural view of democracy by evaluating the practice of dissolution of political parties and groups combined with the ‘abuse clause’ provided in Article 5(1)


of the ICCPR.63 After an analysis of global and regional practices that invoke such justifications as the abuse clause, standards of reasonableness, necessity, and states of emergency, their conclusion is that public international law allows for actions against antidemocratic parties and states can undertake these actions pre- emptively by enacting self- protection legislation.64 There-fore, it can at least be said that militant democracy measures do not contra-vene international human rights standards, and it might even be concluded that a substantive view of democracy is supported to some extent by public international law. This finding is by no means surprising, but it can be counted as an additional argument for the far more vexed debate on militant democracy justification. Clearly, it adds to the legitimacy of the concept where it is practised within the general rules and principles of rights’ limita-tions. However, this is not akin to saying that democratic states have an obligation to preserve democracies in their homelands, even where a state party might be asked by its citizens to enact self- protection legislative measures. Fox and Nolte also tried to determine whether the international com-munity can dictate to the people of a particular nation what kind of consti-tution and social contract they should adopt, including whether national constitutions must have elements of self- preservation. The common and reasonable position is that citizens of each state should decide themselves whether or not they want to live in a democracy formed by the constitu-tional ‘suicide pact’. However, some provisions in international human rights treaties indicate that certain legal provisions are not allowed even if they are approved by the political majority (such as torture or slavery). Fol-lowing this line of argument, Fox and Nolte refer by way of example to the international duty to hold genuine periodic elections.65 They interpreted this as obliging states to, at the least, protect their democratic systems from potential rulers who would be attempting to abolish this rule. This argu-ment might be developed further to the extent that state parties are obliged to protect their democracies in general from internal overthrow, an obliga-tion that does not only apply to elections. However, even if we establish that a duty to preserve democratic rule exists under public international law, it does not automatically follow that states can be required to enact appropri-ate preventive measures to comply with this duty. Provisions requiring state parties to adopt legislative and other measures to give effect to enumerated rights66 offer little guidance here, as they typically describe state obligations at a very general level. In the end, Fox and Nolte arrive at the conclusion that, while the international community may define a permissible range of responses to authoritarian movements, it should not dictate a choice among them.67

Other constitutional practices and events generally support Fox and Nolte’s conclusion. For example, the European Union imposes a duty on its member states to take democracy- protecting measures, with a failure to do so resulting in sanctions. Article 6(1) of the Treaty of the European Union


drafted as early as 1992 states that ‘Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member State[s]’.68 In the case that these principles are breached, a member state might have some of its rights suspended.69 Therefore, the very possibility of sanctions might provide grounds for an interpretation that the European Union can, indi-rectly, oblige its member states to react and provide defensive legal mecha-nisms to assist in the preservation of democracy where it risks being undermined in an individual member state. Another example emerges from Article 4 of the Convention on the Elimination of all Form of Racial Discrimina-tion, which requires states to proscribe racist organisations.70 It can legiti-mately be expected that this requirement be extended to, for example, the prohibition of political parties that are driven by a racist political agenda.71 O’Connell refers to the case of the prohibition of the Batasuna Party,72 decided by the European Court of Human Rights in 2009.73 He argues that the Court’s judgment in that case seems to envisage the possibility of impos-ing a positive obligation to ban certain parties.74 The Strasbourg Court approbated governmental actions to outlaw the Batasuna Party, due to the existence of evidence that this party supported the use of political violence. However, as O’Connell argues, the Court ‘also went on to indicate that such a conclusion was in accordance with the state’s positive obligations’.75 He warns, however, that paragraph 82 of the judgment should not be read as an explicit declaration of a positive obligation to ban the party (as the Court most likely included that paragraph of the judgment to tacitly bolster the legitimacy of the national authorities’ actions, while not including that rea-soning as part of the ratio decidendi), but it ‘leaves open the possibility to argue that the state may have a duty to ban certain political parties’.76

Scholars seem to be cautious and sceptical in declaring that militant democracy measures can be rightly perceived as positive obligations imposed by public international law. However, there are some signs of moving towards the development of such an obligation, at least in certain cases and in certain international institutions. Nevertheless, public international law does promote a rather substantive view of democracy and does not contain any rule that militant democracy measures as such are contradictory to states’ international obligations. The consistency with international human rights standards should be assessed on a case- by-case basis, but in general, states are allowed to utilise militant measures to protect democracy.

Notes

1 For example, the French Constitution of 1958 provides that the republican form of government shall not be subject to amendment (Article 89).

2 Otto Pfersmann, ‘Shaping Militant Democracy: Legal Limits to Democratic Stability’, in András Sajó (ed.), Militant Democracy (Eleven International Publish-ing 2004), 53.


3 András Sajó, ‘Militant Democracy and Transition Towards Democracy’, in András Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 213.

4 Ley 54/1978 de Partidos Politicos/Law 54/1978 on Political Parties. 5 For details, see further in Chapter 7. 6 Another distinguished feature of the Spanish case is that the national judiciary is

extremely reluctant and hesitant to call the system a militant democracy, as a completely tolerant political regime is of key importance to the Spanish histor-ical concept. The concerns of the Spanish judiciary and politicians can probably be cured once they accept the argument that the state’s most natural character-istic is self- defence and that all democracies are more or less militant. A more detailed account of Spain’s experience of being a militant democracy is provided in Chapter 7.

7 Pfersmann above n 2, 63. 8 Markus Thiel, ‘Comparative Aspects’, in Markus Thiel (ed.), The ‘Militant Demo-

cracy’ Principle in Modern Democracies (Ashgate 2009), 416. 9 Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I, II’ (1937) 31

American Political Science Review, 644.10 Ibid. 638.11 1. Provisions in the countries’ criminal codes against acts bordering on or falling in

the category of high treason or rebellion and additional regulations regarding martial law and conferment of extraordinary powers for the state of siege; 2. Provi-sions allowing for the prohibition of ‘subversive movements’, especially the ban or dissolution of extremist political parties; 3. Legislation against the formation of private paramilitary armies, the wearing of political uniforms or parts thereof, and other symbols which serve to denote the political opinion of the person in public; 4. Provisions against the constitutions of intolerable competitors of the state’s own armed forces, serving as stewards, assault troops, or as bodyguards; 5. Legislation against illicit manufacture, transport, wearing, possession, and use of firearms or of other offensive weapons of any kind; 6. Provisions against the abuse of parlia-mentary institutions by political extremism (for example, regulations permitting the exclusion of adherents of subversive parties from representation in political bodies); 7. Provisions against the incitement to violence, agitation, or hatred against other sections of the population and against violent campaigning; 8. Provi-sions to curb the tactics of disturbance in or wrecking meetings by militarised parties; 9. Provisions to curtail the freedoms of speech, expressions, public opinion, and press in order to prevent revolutionary and subversive propaganda, for example, vilifying, defaming, slandering, and ridiculing the democratic state itself, its institutions, or leading personalities of existing regime; 10. Provisions against the practice of morality aiding and abetting political criminals and the ‘symbolism of martyrs and heroes’; 11. Provisions regarding the political activities of members of the armed forces and the police; 12. Provisions regarding the special role of public servants (for example, the duty of allegiance, loyalty oaths, or the curtail-ment of certain fundamental rights); 13. Provisions on special authorities to dis-cover, repress, supervise, and control antidemocratic and anti- constitutional activities and movements (administrative protection of the constitution); 14. Pro-visions against political activities of foreigners or alien missionaries on the national territory, the importation of antidemocratic foreign newspapers, the wearing of fascist symbols by foreign visitors or residents, and the activities of foreign party organisations within the border. According to Markus Thiel, conclusion.


12 Thiel above n 8, 401.13 For a summary of German Basic Law provisions on militant democracy, see, for

example, Pfersmann, above n 2, 49. Also see Carl J Schneider, ‘Political Parties and the German Basic Law of 1949’ (1957) 10(3) The Western Political Quarterly, 527.

14 Article 79 (III): Amendments to this Constitution affecting the division of the Federation into states (Länder), the participation on principle of the states (Länder) in legislation, or the basic principles laid down in Articles 1 and 20 are inadmissible. This can also be referred to as the ‘Clause of Eternity’ (see Thiel above n 8, 401). Similar provision can be found in the Italian Constitution of 1948 (Article 139) and more recent Constitutions – for example, Turkey (Article 4).

15 Principles laid down in Articles 1 and 20 include a list of basic rights (Articles 1–19) and constitutional principles such as democratic and social federal charac-ter of the Republic of Germany, people as the only source of state authority, legislature to be bound by the constitutional order, and the executive and the judiciary by law and justice. Also, Article 20 grants all Germans the right to resist any person seeking to abolish the constitutional order, if no other remedy is available.

16 See also the discussion in Markus Thiel, ‘Germany’, in Markus Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate 2009), 109–46.

17 Article 18: Whoever abuses freedom of expression of opinion, in particular freedom of press (Article 5 I), freedom of teaching (Article 5 III), freedom of assembly (Article 8), freedom of association (Article 9), privacy of letters and secrecy of post and telecommunication (Article 10), property (Article 14), or the right to asylum (Article 16a) in order to combat the free democratic basis order forfeits these basic rights. Such forfeiture and the extent thereof are determined by the Federal Constitutional Court.

18 For details, see Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press 1997), 217 and Thiel above n 16, 115.

19 Article 21 reads as follows:

(I) The political parties participate in the forming of the political will of the people. They may be freely established. Their internal organization must conform to democratic principles. They have to publicly account for their sources and use their funds as for their assets.(II) Parties, which, by reason of their aims or the behaviour of their adher-ents, seek to impair or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany are unconstitutional. The Federal Constitutional Court decides on the question of unconstitutionality.

20 Christian Starck, New Challenges to the German Basic Law: the German Contri-bution to the Third World Congress of the International Association of Con-stitutional Law (Nomos 1991), 122.

21 See, for example, Paul Kirchhof and Donald P Kommers (eds), Germany and its Basic Law. Volume 14. Past, Present and Future. A German- American Symposium (Nomos 1993), 155, and Carl J Schneider, ‘Political Parties and the German Basic Law’ (1997) 10(1) The Western Political Law Quarterly, 527–8.

22 Thiel above n 8, 379.


23 Ibid. 382.24 For example, András Sajó claims that protection of secularism is intimately inter-

related with militant democracy. See András Sajó, ‘Militant Democracy and Transition Towards Democracy’, in András Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 210.

25 Asef Bayat, ‘Islam and Democracy: What is the Real Question?’ (2007) 8 ISIM Paper, available at https://openaccess.leidenuniv.nl/bitstream/handle/1887/12452/paper_bayat.pdf;jsessionid=65C6B3839EA8CD7C6F1D4A90A0734155?sequence =1, accessed 30 June 2014.

26 For example, see Peter G Dancin, ‘Islam in the Secular Nomos of the European Court of Human Rights’ (2011) 32 Michigan Journal of International Law 663; Patrick Macklem, ‘Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe’ (2012) 19(4) Constellations, 576.

27 See, for example, Suzie Navot, ‘Fighting Terrorism in the Political Arena. The Banning of Political Parties’ (2008) 14 Party Politics, 745; Leslie Turano, ‘Spain: Banning Political Parties as a Response to Basque Terrorism’ (2003) 1 Inter-national Journal of Constitutional Law, 730.

28 See, for example, Dancin above n 26; Mackelm above n 26; Michael D Gold-haber, A People’s History of The European Court of Human Rights (Rutgers Univer-sity Press 2007), 88.

29 See, for example, Kalifatstaat v. Germany (2000) (Application no. 3828/04); Refah Partisi (the Welfare Party) and Others v. Turkey (2001) (Applications no. 41340/98, 413428, 41343/98 and 41344/98); Leyla Sahin v. Turkey (2004) (Application no. 44774/98); Dogru v. France (2008) (Application no. 7058/05).

30 Renata Uitz, Freedom of Religion in European Constitutional and International Case Law (Council of Europe, 2007), 177.

31 See, for example, András Sajó, ‘From Militant Democracy to the Preventive State’ (2006) 27 Cardozo Law Review, 2225; Kent Roach, ‘Anti- Terrorism and Militant Democracy: Some Western and Eastern Responses’, in András Sajó, Militant Democracy (Eleven International Publishing 2004), 171–208.

32 Sajó above n 31.33 Shlomo Avineri, ‘Introduction’, in András Sajó (ed.), Militant Democracy (Eleven

International Publishing 2004), 2.34 When considering the European Convention on Human Rights, the most fre-

quent articles invoked in militant democracy related cases were Articles 10 and 11 (freedom of speech and freedom of association, respectively). For more details, see Paul Harvey, ‘Militant Democracy and the European Convention on Human Rights’ (2004) 3 European Law Review, 407.

35 For a brief overview of states of emergency, see Gregory H Fox and George Nolte, ‘Intolerant Democracies’ (1995) 36 Harvard International Law Journal, 54–60; and Norman Dorsen, Michel Rosenfeld, András Sajó, and Susanna Baer (eds), Comparative Constitutionalism: Cases and Materials (West Group 2003), 328–49.

36 For details, see Oren Gross and Fionnuala Ni Aolain, ‘Models of Accommoda-tion’, in Oren Gross and Fionnuala Ni Aolain, Law in Times of Crisis. Emergency Powers in Theory and Practice (Cambridge University Press 2006), 54.

37 See, for example, Article 4(2) of the International Covenant on Civil and Polit-ical Rights; Article 15 of the European Convention on Human Rights.

38 Loewenstein above n 9, 423.


39 For a more detailed account of militant democracy measures lists and practice in the CEE region, see Jiri Priban and Wojciech Sadurski, ‘The Role of Political Rights in the Democratization of Central and Eastern Europe’, in Wojciech Sadurski, Political Rights Under Stress in the 21st Century Europe (Oxford University Press 2006), 219–30.

40 Sajó above n 3, 209.41 Priban and Sadurski argue that the abolition of political censorship has resulted

in the growth of political extremism with hate speech and right- wing extremism flourishing in the early 1990s. See Priban and Sadurski above n 39, 219.

42 The fear of re- emergence of communism is nevertheless, at the very least, prob-lematic where communist parties were not even disbanded in the first place.

43 Sajó above n 3, 217.44 Markus Thiel, ‘Comparative Aspects’, in Markus Thiel (ed.), The ‘Militant Demo-

cracy’ Principle in Modern Democracies (Ashgate 2009), 382.45 Sajó above n 3, 229.46 Ruti Teitel, ‘Militating Democracy: Comparative Constitutional Perspectives’

(2007) 29(1) Michigan Journal of International Law, 49.47 Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harvard Law Review 1467.48 Leto Cariolou, ‘The Right Not to be Offended by the Members of the British

National Party: An Analysis of Secro Ltd v. Redfearn in the Light of the Euro-pean Convention on Human Rights’ (2006) 35 Industrial Law Journal, 4.

49 Republican Party of Russia v. Russia (2011) (Application no. 12976/07).50 Ibid. para. 129.51 Angela K Bourne, ‘Democratisation and the Illegalisation of Political Parties in

Europe’ (2011) 7 Working Paper Series on the Legal Regulation of Political Parties 6, available at www.partylaw.leidenuniv.nl/uploads/wp0711.pdf, accessed 30 June 2014.

52 The term ‘incomplete democracy’, adopted from Bourne (above n 51, 12), is defined as ‘states that have set out on a process of democratic reform, and obtained some – but not other fundamental – characteristics of established democracies’.

53 For details on the Statute and case to outlaw Batasuna Party, see Chapter 7 and, for example, Victor Ferreres Comella, ‘The New Regulation of Political Parties in Spain’, in András Sajó (ed.), Militant Democracy (Eleven International Publish-ing 2004), 133–56.

54 See, for example, Priban and Sadurski above n 39, 225; European Commission for Democracy through Law (Venice Commission), Guidelines on Prohibition of Political Parties and Analogous Measures. Adopted by the Venice Commission at the 41st Plenary Session (Venice, 10–11 December 1999).

55 For more details, see, for example, Susan Marks, ‘The European Convention on Human Rights and its “Democratic Society” ’ (1996) The British Yearbook of Inter-national Law 209; Hans- Martien ten Napel, ‘The European Court of Human Rights and Political Rights: the Need for More Guidance’ (2009) 5(3) European Constitutional Law Review, 473–8.

56 Susan Marks, ‘The “Emerging Norm”: Conceptualizing “Democratic Govern-ance” ’ (1997) 19 American Society of International Law, 372–6; Marks above n 55, 209–38; Susan Marks, ‘What has Become of the Emerging Right to Democratic Governance?’ (2011) 22(2) The International Journal of International Law, 507–24; Gregory H Fox, ‘The Right to Political Participation in International Law’, in


Gregory H Fox and Brad Roth (eds), Democratic Governance and International Law (Cambridge University Press 2000), 48–90; D’Aspermont ‘The Rise and Fall of Democratic Governance in International Law: a Reply to Susan Marks’, (2011) 22(2) The European Journal of International Law, 549–70; Steven Wheatey, The Democratic Legitimacy of International Law (Hart Publishing 2010), 92–246, 311–33.

57 Fox and Nolte above n 35, 38–59, 59–68.58 Ibid. 38.59 Article 22(2) of the ICCPR reads as follow:

No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

60 Fox and Nolte above n 35, 39. Authors also mention that John Humphry sug-gests that ‘the General Assembly meant by democratic society the kind of society in which the rights enunciated by the Universal Declaration of Human Rights are recognized and respected’. John P Humphry, ‘The Just Requirements of Morality, Public Order and The General Welfare in a Democratic Society’, in Ronald. St. J. MacDonald and John P Humphry (eds), The Practice of Freedom: Canadian Essays on Human Rights and Fundamental Freedoms (Butterworths 1979), 137, 147.

61 European Council in Copenhagen, 21–22 June 1993. Conclusion of the Presidency. Article 7(A) (iii) states that ‘Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’. Available at http://europa.eu/rapid/pressReleasesAction.do?reference=DOC/93/3&format=HTML&aged=1&language=EN&guiLanguage=en, accessed 30 June 2014.

62 Statute of the Council of Europe adopted on 5 May 1949.

Article 3: Every member of the Council of Europe must accept the prin-ciples of the rule of law and of the enjoyment by all persons within its juris-diction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as speci-fied in Chapter I. Article 4: Any European State which is deemed to be able and willing to fulfil the provisions of Article 3 may be invited to become a member of the Council of Europe. Article 8: Any member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

63 Article 5(1) reads as follows:

Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act


aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

64 Fox and Nolte above n 35, 59.65 Article 25(b) of the ICCPR or Article 3 of the Protocol 1 to the European Con-

vention on Human Rights.66 Article 2(2) of the ICCPR, which requires that:

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provi-sions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

67 Fox and Nolte above n 35, 69.68 Former Article 6(1) (before the adoption of the Treaty of Lisbon amending the

Treaty on European Union and the Treaty establishing the European Com-munity, signed at Lisbon, 13 December 2007) reads as follows: ‘1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’ Similar but modified provision can be found in Article 2 of the current version of the Treaty on European Union:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non- discrimination, tol-erance, justice, solidarity and equality between women and men prevail.

69 Article 7(2) as amended by the Treaty of Lisbon amending the Treaty on Euro-pean Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007:

The European Council acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and per-sistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations. (3): Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in ques-tion, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

70 Article 4(b) imposes obligation to ‘declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law’.


71 Eva Brems, ‘Freedom of Political Association and the Question of Party Clo-sures’, in Wojciech Sadurski, Political Rights Under Stress in the 21st Century Europe (Oxford University Press 2006), 131.

72 Rory O’Connell, ‘Realising Political Equality: the European Court of Human Rights and Positive Obligations in a Democracy’ (2010) 61 Northern Ireland Legal Quarterly, 3.

73 Herri Batasuna v. Spain (2009) (Applications no. 25803/04, 25817/04).74 O’Connell above n 72, 277.75 Ibid. 278.76 Ibid.

Part II

Militant democracy and undemocratic political parties

4 Applying militant democracyTesting the concept in practice, setting standards, and identifying major challenges

4.1 Germany: testing constitutional militancy in practice

Germany was the first state to embed a notion of militant democracy into its constitution – the Basic Law of the Federal Republic of Germany (Grundge-setz für die Bundesrepublik Deutschland). As mentioned in Chapter 1, constitu-tional militancy was introduced to address major flaws of the Weimar regime, which is often characterised as having been ‘defenseless against the rise of a totalitarian movement, which availed itself of the democratic process as a Trojan horse in its effort to establish a brutal dictatorship’.1 Some com-mentators note that the Weimar Republic, Germany’s first constitutional state to be based on the principle of popular sovereignty, ‘opened the door to the electoral assumption of power by the National Socialists, or Nazis, despite the party’s clearly antidemocratic means and aims’.2

The Weimar Constitution came into effect in August 1919 and, only 13 years after its adoption, it had paved the way for an antidemocratic and anti- constitutional dictatorship.3 The Weimar Constitution provided for a system of proportionate representation in the legislature, which combined with some other serious flaws in constitutional design, and enabled civil strife, economic crisis, and resentment of the left and right to be exploited by the Nazi party in its pursuit of power. Within this environment, the Nazis managed to very quickly mobilise popular support to their benefit and employ available democratic techniques to secure the majority in parliament. The Nazi party never gained a technical majority, but rather their popularity increased incrementally with each election to the point where they were able to ally with the German Nationalist Party to gain a majority of votes in 1933. After Hitler was appointed head of the coalition government, and with the help of the major minister portfolios held by his supporters, he used his power to suppress all potential opponents for future elections. In 1933, Hitler was powerful enough to convince the deputies to vote for the ‘Ermäch-tigungsgesetz’ (Enabling Act), which temporarily suspended major provisions of the Weimar Constitution and gave power to the government to legislate by decree.4 As a result, core principles of liberal democracy, such as the sepa-ration of powers and the guarantee of fundamental rights and liberties, were

66 Undemocratic political parties

effectively dismissed, with all powers being handed over to the government.5 A totalitarian dictatorial regime was established, at least in appearance, without any visible violations of the democratic electoral process. The Weimar Republic and its hopes to build liberal democracy had given itself up, legally and peacefully, to its most extreme enemy.6

Many lessons have been drawn from the Weimar experience, often reflect-ing on the German Basic Law of 1949, which had recalled the conditions that led to the Nazi state and resolved that ‘the Federal Republic could never be neutral in the face of its mortal enemies’.7 On a larger scale, events in the 1930s caused many to realise that democracy cannot survive without institu-tionalised means to protect itself against attacks from its internal enemies. In other words, democracy should not remain silent in the face of attempts to harm it from within by organisations and individuals that abuse the privi-leges, rights, and opportunities granted to them by the state. Liberal consti-tutions should not function as suicide pacts, and must make provision to take self- defensive actions when needed.8 In this respect, the Basic Law of 1949 presents the ‘counter- constitution to the previous one upon which the Nazi regime has been based’.9 The document radically departed from previous provisions and rules, giving the German political system a com-pletely new form. For example, citizens were granted basic rights coupled with a strong mechanism for their protection;10 Germany was declared to be a federal state with parliamentary–democratic institutions; and the founding principles of the state were to be the rule of law and social justice.11 However, the most distinguishing feature for the militant democracy debate was the mechanism to protect founding principles from the influence of potential enemies of the state. The strong anti- fascist mood among the draft-ers of the Basic Law led to the creation of a model of democracy that was able to protect itself.12 Elements of this system were outlined in Chapter 3, which described the central element of Germany’s militant democracy as the procedure to declare political parties unconstitutional. This chapters looks at how the procedure provided in Article 21(2) of German Basic Law was put into practice for the very first time. A few words should be said about Article 21 itself. This provision granted special status to political parties within the newly established constitutional order and accorded additional protection and guarantees to them as com-pared to other types of associations (which were themselves regulated by Article 9). At the same time, certain obligations were imposed on political parties to prevent a situation similar to that of the Weimar Republic. Polit-ical parties in Germany are required to have their internal structures conform to democratic principles: failure to comply with this rule may result in a court declaring the party unconstitutional and ordering its dissolution. Thus, Article 21 states:

1 Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation

Applying militant democracy 67

must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.

2 Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endan-ger the existence of the Federal Republic of Germany shall be unconsti-tutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.

3 Details shall be regulated by federal laws.

The constitutionality of a political party can be challenged before the Con-stitutional Court on a motion of either the Bundestag or the Bundesrat (the lower and upper chambers of the German Federal Parliament, respectively), or by the Cabinet. State governments can initiate such action too but only against a party whose activity is carried out within the confines of that state.13 Three days after the Basic Law was adopted, the Federal Constitu-tional Court was asked to declare the Socialist Reich Party (SRP) and the Communist Party of Germany (KDP) unconstitutional. Both parties were found to contravene democratic principles, resulting in the Court declaring both of them unconstitutional. The two cases, however, differ substantially, in both the manner by which they were decided and their implications for the future application of militant democracy in Germany and Europe. The first case was decided rather promptly, and the declaration of the Court that the SRP was unconstitutional was an expected outcome that seemed to be appropriate and even necessary in the circumstances. By contrast, the case of the Communist Party took a few years to decide, and its judgment does not appear quite as convincing or necessary as its earlier counterpart. For this reason, the two cases are treated in separate sections in this book. The case of the SRP will be examined in this section, in order to demonstrate how con-stitutional militant democracy was unpacked and interpreted by the judi-ciary for the first time. The case of the KDP will be discussed in the next section, as it fits better with the cases in that section to demonstrate how the idea was developed and utilised in later jurisprudence. The first case under Article 21(2) was decided in 195214 and, by order of the Federal Constitutional Court, the Socialist Reich Party (Sozialistische Reichspartei) was declared unconstitutional. The SRP was a neo- Nazi organ-isation founded in 1949 as a successor to the German Imperial Party, and the Federal Government considered that it was seeking to destroy the free democratic basic order. In its publications, campaign appeals, and leaders’ speeches, the party openly proclaimed its neo- Nazi character. The Federal Government therefore asked the Federal Constitutional Court to apply the provisions of Article 21(2), and the Court proceeded to declare SRP uncon-stitutional.15 The ban caused little sensation as it was generally understood that the procedure to declare political parties unconstitutional had been introduced to prevent potential neo- Nazi activity within the new regime, and the SRP was not hesitant to express its admiration of Nazi ideology and


principles.16 The Court’s decision was structured around three major themes: political parties and democratic order; the SRP’s leadership and internal organisation; and the SRP’s programme and conduct of its leaders. The Court began by considering the issue of the recognition of political parties in a new constitution and their special status within the political system. The SRP case was the first opportunity for the Federal Constitu-tional Court to articulate a jurisprudence of Article 21 and the concept of militant democracy in general. It is probable that the Court anticipated even at this early stage that the provisions of Article 21(2) would not be of fre-quent use. This expected rarity of application, combined with the fact this was the first case of its kind, prompted the Court to fully avail itself of the opportunity to express its interpretation and understanding of the role of Article 21 in protecting the new constitutional order from the threat of over-throw. Political parties were defined as ‘agents – even if not the sole ones – forming the political will of the people’.17 The Court characterised political parties as the only means by which the popular political will emerges and therefore concluded that the establishment of political parties (as well as their activities) must not be restrained. However, Article 21 does not only guarantee the free formation of political parties, but also provides for the prohibition of unconstitutional parties. Therefore, despite the special role of political parties, the democratic state is empowered to dictate the precondi-tions of their operation, and to exclude dangerous parties from the political struggle, but only ‘if they seek to topple supreme fundamental values of the free democratic order which are embodied in the Basic Law’.18 The Court also examined the relationship between Articles 9 and 21; political parties were found to be associations within the meaning of Article 9. In general, they might be prohibited under the conditions established by Article 9 and be subject to general executive authority. However, due to the special status accorded to political parties by the Basic Law, they are also entitled to the additional guarantees provided in Article 21. Further, the Court looked at the role of the party’s leadership and its internal organisation and stated in no uncertain terms that a party with an internal organisation not corresponding to democratic principles would probably seek to impose the same structural principles upon the state if it were to achieve political power.19 The Constitutional Court interpreted Article 21(1) of the Basic Law as imposing requirements on political parties’ internal structure, which must be organised in accordance with key demo-cratic principles: a party must be organised from the bottom up, involve all of its members in the decision- making process, have basic equality amongst members, and guarantee that people may join or leave the party at any time. The Court analysed the history of German political parties, especially Hit-ler’s Nazi party, and examined correspondence and documents of the SRP to conclude that most of the party’s leaders were former Nazis with previous positions in organisations such as the SS20 and SA.21 Moreover, the internal organisation of the SRP was found to closely resemble that of the Nazi party.


The Court found that, in the SRP, authority flowed not from members to its leaders but from the top down. Freedom to join the party was not guaran-teed (indeed, some categories of citizens were denied membership of the party) and the procedure for expulsion from the party corresponded exactly to that of the Nazi party. Moreover, the SRP followed the Nazi party’s example by establishing affiliated organisations. All these facts led the Court to conclude that the SRP would seek to impose its antidemocratic structure upon the state in the event that it achieved political power. As a result, the SRP was found to be pursuing the goal of eliminating the free democratic basic order. The third and last part of the Court’s judgment presents a detailed analysis of the SRP programme and its leaders’ behaviour. The Court reached the conclusion that the party’s programme reflected the inten-tion to revive the idea of the ‘Strong Reich’ and the superiority of the German race. The speeches and activities of the party’s leaders expressed their opposition to the German form of government and state bodies, and their eager acceptance of a ‘Führer State’. Having examined the role of political parties in the democratic order, as well as the SRP’s leadership, internal organisation, political programme, and its leaders’ conduct, the Court declared the party unconstitutional under Article 21(2). The SRP members of the Bundestag, representing a banned party, lost their seats: a measure not prescribed in the text of the Constitu-tion. This ‘penalty’ was ordered by the Court, yet it was somewhat unex-pected and ‘aroused considerable opposition among constitutional lawyers’.22 To avoid similar situations in the future, especially given the fact that there was an application to apply Article 21(2) in relation to another political party, the Bundestag adopted a statutory rule that members of any party declared unconstitutional by the Court would automatically lose their seats.23

The Socialist Reich Party case gave the Court an opportunity to express a judicial interpretation of the party- based state. The Court found that Article 21 of the Basic Law confers a special status on political parties, defining them as the principle organ for forming popular will, and legitimising opposition parties so long as they act in accordance with democratic prin-ciples. Fascist ideas still seemed to pose a serious threat to the new demo-cratic system at that time, not to mention to Germany’s international reputation. However, the case was not simply an occasion to interpret the meaning of the party- based state, but to support the principle of constitu-tional militancy established by the German Basic Law. This case represents the first attempt to bring the concept to life (‘concept’ here meaning constitu-tional militancy, as there were other legislative attempts to introduce militant democracy through ordinary legislation, which Loewenstein’s essays reveal). The resulting judgment is a prime example of thorough and careful interpretation of this notion. The Federal Constitutional Court of Germany occupied a steadfast position in relation to the necessity of protecting the state’s structures from the attack of its enemies. The simultaneous assessment of the party’s programme, its internal structure, and its activities,


all these elements assisted in lending legitimacy to the Court’s decision, and recommending it as just in the eyes of the public. The judiciary, entrusted with the task of deciding upon parties’ constitu-tionality, asserted that all of the evidence about the party was troubling in terms of its non- adherence to democratic rules and principles. At the same time, the judiciary was loath to establish vague or uncertain rules that might be applied universally in all party prohibition cases. It can be argued that the Court was therefore cautious. However, keeping in mind the neo- Nazi character of the party in question and the recent memory of the tragedies wrought by the former regime, the Court might also have been emotionally influenced and could have been driven by fears of the regime making a comeback. However, this did not occur. In this respect, the case of the Socialist Reich Party demonstrates the general ability of the judiciary to stand up for democracy and preserve it through a careful and cautious imple-mentation of the (admittedly problematic) concept of militant democracy. The first case to apply militant democracy in practice gave constitutional theory a respectable example of judicial intervention in the business of pre-serving the constitutional order. However, the German Federal Constitu-tional Court was not the only one that managed this feat in the aftermath of the Second World War. The Australian judiciary faced a similar task, but in the face of a different enemy: communism.

4.2 Militant democracy and the rise of communism: protecting democracy or frustrating political pluralism?

The Australian Communist Party case: Australia’s experience of protecting democracy in times of crisis

While Australia does not consider itself a militant democracy state (and the case of the Communist Party Dissolution Act was not based on the same legis-lative premise as the first German party prohibition case), the justification invoked by the Australian government in 1950 to dissolve the Communist Party of Australia was one of a militant democracy nature and therefore is of relevance for the current chapter, as well as the overall debate of the practical application of militant democracy. The Australian Communist Party case involved one of the most patent of militant democracy measures: the prohi-bition of an allegedly dangerous political movement in the form of a polit-ical party. The Australian judiciary had to deal with the validity of the prohibition of the Communist Party at around the same time as the German Federal Constitutional Court, which was shortly after the idea of militant democracy had been introduced to constitutional theory and practice. Finally, the Australian Communist Party case is considered to be an iconic statement about the importance of judicial review in the modern Australian democracy24 and was regarded as a significant victory for constitutionalism and the rule of law in general.25


At first glance, the Australian Constitution does not contain any of the traditional features of a militant democratic state mentioned in Chapter 3, such as procedures to outlaw political parties or non- amendable constitu-tional provisions. On this basis, some might conclude that Australia lacks any elements of constitutional militancy; however, this impression is incor-rect, and the concept is in fact a feature of Australian constitutional law. Signs of militant democracy may be found in the text of the Australian Constitution, legislation, and the decisions of the High Court of Australia (to be discussed in detail in Chapter 8). The attempt to ban the Communist Party of Australia in 1950 bolsters this conclusion further. The declaration by the Commonwealth Parliament that the Communist Party of Australia was an unlawful association is a typical militant democracy measure. The Communist Party of Australia had existed since the 1920s, but it had never been close to disturbing the wide support enjoyed by the Labor Party.26 The Federal Government had advocated banning the party previ-ously and as a result it was banned temporarily from 1940 to 1942, within the framework of wartime regulations. However, after the Soviet Union joined the war, the party was allowed to resume its activities and even gained some support amongst Australians. In the early 1940s, a wave of industrial strikes affected Australia, leading to accusations that communists were responsible for instigating these strikes and trying to destabilise the country. The 1949 elections brought a coalition of the Liberal Party and the Country Party to power and, not long after, the party acted upon its electoral promise to ban the Australian Communist Party.27 The new Prime Minister, Robert Menzies, ensured the passage by Parliament of the Com-munist Party Dissolution Act, which became law on 20 October 1950.28 The enactment of this statute and its execution were presented to the public as the fulfilment of the constitutional responsibilities of the legislature and executive branches of government in defending the existing form of government.29

The legislation declared the Communist Party unlawful. It also provided for the Governor- General to declare other organisations associated with the Communist Party to be unlawful too. The consequence of such a declaration was that these organisations were dissolved, membership of them became a criminal offence, and their property was forfeited to the Commonwealth. Individuals could also be declared communists and, as a result, would be banned from employment in the Commonwealth public service. The content of the law in question was not very different from similar laws adopted in other jurisdictions around the same time. For example, the preamble to the Act stated:

the Australian Communist Party . . . engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party . . . would be able to seize power . . .30


The Australian Communist Party also engages in activities or opera-tions designed to bring about the overthrow or dislocation of the estab-lished system of government in Australia . . .31

The ban imposed on the Communist Party was publicised as being ‘neces-sary for the security and defence of Australia and for the execution and main-tenance of the Constitution and of the laws of the Commonwealth’.32 The phrase ‘execution and maintenance of the Constitution’, cited as one of the legislation’s aims, appears very much to be a militant democracy measure aimed at protecting Australia’s continued existence as a democracy. On the same day as the Communist Party Dissolution Act was enacted, the Australian Communist Party, along with ten unions and some union officials, chal-lenged the constitutionality of the statute and sought an injunction to prevent the enforcement of the Act. The High Court refused to grant an injunction, but agreed to decide on two important questions: did the valid-ity of the Act depend upon proof in court of the facts recited in the Act’s preamble and, if not, was the Act invalid?33 Five of the seven judges answered ‘no’ to the first question but answered ‘yes’ to the second. The High Court of Australia held that the Act was unconstitutional, and the statute was therefore invalidated.34 (The Chief Justice answered ‘no’ to the two questions while the remaining judge answered ‘yes’ to both, so ulti-mately six judges of the seven judges voted to invalidate the Act.) It is some-what surprising that the judgment itself was not primarily concerned about the question of whether and how dangerous the Communist Party was for the established constitutional structure of the state, as might be expected in a classic militant democracy case. Indeed, the legislation was held unconsti-tutional not because it banned a political party per se, nor because of its underlying militant democracy purpose, but rather because the Federal Par-liament had exceeded its legislative powers by enacting the law.35 The majority’s reasoning was not without serious tension,36 but it is important to acknowledge regardless that the outcome of the battle was ‘a watershed for civil liberties’, and that it proved the role of the court as the ‘guardian of the abiding values that lie at the heart of the Constitution’.37

The Communist Party case is often seen as an iconic statement about the importance of judicial review and its potential to withstand pressure from the government and society at large, all while pronouncing upon the validity of an Act. For example, the majority of Australians, some 80 per cent, sup-ported the ban.38 Australia, Britain, the United States, and other Western states were obsessed with exposing communist plots in all parts of society, the economy, and government. Moreover, the government argued that the party posed a great threat, such that the assertions in the preamble to the Act appeared to be self- evidently true. The preamble stated that the Com-munist Party’s main aim was to seize power and that it was engaged in espi-onage, sabotage, and treason to achieve its goals.39 The ban imposed on the Communist Party was promoted as being necessary to protect Australia’s


defence and security, and to ensure the execution and maintenance of the Constitution.40 The crux of the government’s agenda was to convince the population – and the opposition – that the law in question was not only compatible with the Federal Constitution, but was indeed necessary to protect it. The enactment and execution of the statute were presented as the necessary fulfilment of constitutional responsibilities by the legislature and executive, a justification which put additional pressure on the judiciary. At the same time, the Bill had generated a storm of negative commentary from the international media and was hotly contested in parliament, amidst strong opposition from the Labor Party. Despite pressure from various polit-ical actors and powerful arguments advanced by the government on the necessity to protect the foundation of the state, the High Court invalidated the statute. The judgment stands ‘for the proposition that there are some things that governments are not entitled to do without the most compelling of circumstances’.41

Decisions like the Australian Communist Party case demonstrate that the judiciary is capable of recognising that the executive’s arguments in times of alleged emergency are often very seductive, as well as requiring governments to live up to the ideal model of the separation of powers and the rule of law. The Australian example of dealing with the fear of communism in the early 1950s proves that governments cannot break the rule of law without con-straint simply because they enjoy majority support. It is a well- known fact that, in times of crisis, judges often uphold the legality of questionable gov-ernment initiatives and by this ease the work of the government in sustain-ing the need for exceptional measures. However, the Australian case is an honourable example of the reverse of this trend. The judiciary can stand for the rule of law and an ideal version of democracy in times of crisis, even whilst being under immense pressure (political and social). One famous paragraph from the judgment bears relevance to the contemporary constitu-tional practice of the many states that limit individual rights and freedoms in times of crisis and turmoil:

History, and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally suppressed, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected. In point of constitutional theory the power to legislate for the protection of an existing form of govern-ment ought not to be based on a conception, if otherwise adequate, ade-quate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend.42

This is a lesson worth remembering for the entire militant democracy debate, as it provides useful guidance for the practice of limiting rights and


freedoms in the name of democracy. The Australian Communist Party case demonstrates the tensions that can arise when governments seek extra powers to defend the status quo, but it is also a clear example of how the power of the judiciary to supervise such activities and to itself take up the task of pro-tecting a form of government from dangers is likely to arise. The Commu-nist Party was not banned, nor did it destroy the Australian state or pose any real threat of doing so.

Militant democracy in the hands of ‘paranoid’ democrats?

This section will analyse militant democracy measures as applied by ostens-ibly ‘paranoid’ governments driven by a fear of communism during the so- called ‘Cold War’. Australia was not the only Western democracy troubled by the growing popularity of a communist party and its ideology shortly after the Nazi regime was defeated. Many other countries around the world developed techniques to suppress this allegedly antidemocratic and danger-ous political movement. As was discussed in Chapter 3, the presence of such measures within the constitutional system of a democratic state is, in general, acceptable; however the legitimacy and effectiveness of the newly militant character of a democracy depends to a large extent on the manner in which it is employed in practice. The United States’ example of prosecuting its own Communist Party demonstrates how democracies in the 1950s feared communists and their activities. The United States was an undeclared enemy of the communist state of the Soviet Union, and therefore developed a set of measures to resist the intrusion of communism into its political system. Someone familiar with the political system of the United States might claim that its jurisdiction is utterly alien from the militant democracy debate and that the United States is exceptionally unique from other Western democracies on many accounts.43 However, the United States is an interesting example to include in the overall context of the debate on militant democracy in the early years of its practical application.44 It appears that the government was concerned about the activities of communist groups so much so that it relaxed and diluted guarantees of free speech, a rather unprecedented measure for this nation. During the post- Second World War era, fear over national security brought about wide- ranging restrictions on ‘radical’ speech, including extensive loyalty programmes, attempts to outlaw the Communist Party, and state registration requirements for all communist- action organisations.45 The 1940 Smith Act adopted in the United States to criminalise any advocacy for the overthrow of government46 as well as the case of Dennis v. United States represent but a couple of facets of the American war on communism.47 Despite the minor role of the Communist Party in the US, the government decided to impose considerable limitations on the free speech of adherents to communist ideology, such that the Communist Party was subjected to legal restraints that would not ordinarily have been permitted under the standards


of the criminal code, with adherents being prosecuted technically on the basis of ‘their advocacy of Marxism–Leninism’.48

The anti- communism theme was dominant in many Western demo-cracies, including Germany. However, unlike Australia, the United States, and other democracies, which all feared communism and its growing popu-larity, Germany possessed clearly pronounced constitutional techniques to protect its democratic structures from potential internal enemies. The content of the normative principle of militant democracy established by the German Basic Law was detailed earlier in this section. However, in the German Communist Party (KDP) case, the application of those principles differed from the first occasion – the Socialist Reich Party (SRP) case, dis-cussed above – in which the Federal Constitutional Court had had to decide on the meaning and interpretation of militant democracy provisions. The Court’s decision to declare the Socialist Reich Party unconstitutional occa-sioned very few protests in Germany. This was mainly due to the fact that the memories of the Nazi regime were still fresh in people’s minds, causing the majority of the population to accept the move without questioning too closely the true commitment of the new government to democratic prin-ciples. However, the second occasion to declare a political party unconstitu-tional was distinct in several ways. The judgment declaring the Communist Party of Germany unconstitutional was handed down in 195649 and became the second and the final decision (to date) banning a political party under Article 21(2) of the German Basic Law. The Cabinet initiated proceedings against the KDP in 1951, the same year that it sought to challenge the con-stitutionality of the SRP. However, it took far longer in this case for the Court to hand down a judgment. The move by the Adenauer government seemed to some to be somewhat premature, as the Communist Party’s elect-oral support was continuously dropping anyhow.50 Several of the justices of the Federal Constitutional Court believed it would make sense to let the party wither of its own accord without interference from the state. However, over the following few years, it became increasingly apparent that the gov-ernment had no intention of withdrawing its application, forcing the Federal Constitutional Court to deal with the case. There is no doubt that declaring the Communist Party unconstitutional had great symbolic meaning for the new democratic polity being promoted and established in West Germany. For example, Kommers described the case as being ‘important symbolically in the bitterly cold war between East and West Germany in the face of rising Soviet–American tensions exacerbated by the division and rearming of Germany’.51

The KPD ultimately faced the same fate as the SRP and was declared unconstitutional in a 308-page judgment (the longest in the Court’s history). As the Court had a few years between decisions on these two cases, one would legitimately expect to see further elaboration on the potential ten-sions between militant democracy and the basic values it is designed to protect, as well as more precise guidance on the future application of


militant democracy principles. It is not entirely true to say that the Court failed in this task, or that it handed down an imperfect or poorly reasoned judgment. However, the Court could not resist the government’s motion to ban the KPD, despite its declining popularity and relevance. In light of this, the Court tried to present as reasonable a judicial opinion as possible in the given circumstances and to send a guideline for future recourse to the pro-cedure outlined in Article 21. The 1956 judgment reflected more sensitivity about the possible risks that the procedure under Article 21 of the Basic Law could pose to the freedom of association and speech. As in the earlier case, a substantial part of the judgment was devoted to a detailed analysis of Marx-ism–Leninism and the history of German communism; an investigation of the party’s structure, leadership, and relations between its members; and its attitudes towards other political players. It was held by the Court that the KPD directed all its activities towards the goal of abolishing the existing constitutional system: the public platform of the KPD had clearly announced its goals to catalyse a revolution and establish a dictatorship of the proletar-iat. The judgment of the Court, however, also included some important points of interpretation of Article 21 of the German Basic Law. First of all, it was established that, in order to deny a party’s constitu-tional status, the Court is not required to find that it is engaged in ‘illegal activity’ or some other ‘concrete undertakings’ to abolish the constitutional order. What is important is the presence of a ‘fixed purpose constantly and resolutely to combat the free democratic basic order’ and a manifestation of that purpose ‘in political action according to a fixed plan’.52 In order to identify the presence of such a plan, the Court should look at the party’s pro-gramme, its activities, leaders’ statements, official declarations, educational materials, and so on. In this particular case, the Federal Constitutional Court conducted its own independent examination of each of the elements just listed and found that the KDP was an unconstitutional party within the meaning of Article 21. The most important lesson from this part of the judgment is that there is no need for certain danger to the existence of the democratic constitutional state to be present in order to eliminate a political party from the electoral process: it is enough that there is a probable chance of the realisation of the party’s unconstitutional goals in the foreseeable future.53 In this way, the German Communist Party case opened the door to the possibility of invoking militant democracy not only to avert empirical dangers but also to guard the internal consistency of a democratic system by watching the intentions of its participants.54 The Federal Constitutional Court found this a convincing argument to justify the dissolution of a minor polit-ical party that was without any substantial support in the electorate. Second, the Court formulated an understanding and interpretation of Article 21(2) that became a formative element of Germany’s militant demo-cracy. The Court felt obliged to comment on how to reconcile Article 21(2) with other basic principles of the Constitution. The Court found no conflict between Article 21 and presumably higher constitutional values. In the


Court’s opinion, the framers of the Basic Law had intended in Article 21(2) to ensure that the very principles of the democratic state should be protected and preserved, and that this could be done through measures directed at affecting the rights and freedoms of those who would seek to destroy the existing order. The intentions of the ‘founding fathers’ were based on tragic historical experience, which convinced them that democracy can no longer remain wilfully blind to the antidemocratic tendencies of some parties, and there should be some limits placed on their activities. Militant democracy was declared a constitutional value.55 Finally, the Constitutional Court held that a declaration of unconstitutionality extends not only to the Communist Party itself – with the attendant forfeiture of its property and loss of seats in Federal and state parliaments – but also to all its current and future surro-gate organisations. The latter statement had far- reaching implications for certain organisations even years after the Communist Party was dissolved. For example, the Communist Voters’ League was denied a place on the ballot for the Bundestag elections in North Rhine- Westphalia in 1961. The litiga-tion to challenge the state’s refusal to allow them to compete for seats in parliament was unsuccessful, as the League was found to have effectively supplanted the banned KDP party.56

The German Communist Party case is somewhat problematic to reconcile with the previous case decided under the same provision of Article 21(2). First of all, some authors find it difficult to see how the small KPD could have posed a serious threat to the German democratic order.57 The major argument of the Federal Constitutional Court in declaring the Communist party unconstitutional was that militant democracy could be deployed not only to address a real threat but also a merely logically possible one. Even in light of this interpretation, the Court’s decision reads as less than convincing when it expounds the supposed intention of the Communist Party to extin-guish its political opponents and to overthrow the existing constitutional order in the foreseeable future. By the time the judgment was handed down, there was barely any chance that the Communist Party could ever influence political processes in Germany. Moreover, by banning political parties, a state demonstrates that it does not trust its people to decide on their own who will represent their interests in the decision- making process. Needless to say, the exclusion of certain political parties from the public debate narrows the diversity of political views, which is itself critically important for the political process. These are the main questions of militant democracy. The only possible response to them is that the advantages of militant demo-cracy measures outweigh such risks, and that in any case they are permissible only if carried out in accordance with strong procedural guarantees. In the early 1950s, the German government did not hesitate to submit two motions to declare political parties unconstitutional within the space of only three days; however, later it changed its strategy and became more concerned about the special status of political parties. The Communist Party case had a considerable impact upon the future interpretation and


application of the militant democracy principle to protect the constitutional structures of German democracy. At first glance, courts started to take the party privilege guarantee more seriously and demonstrated a more cautious approach towards the constitutional obligation to guarantee special status to political parties. This is evident, for example, from the Radical Groups Party case decided in 1978.58 During 1975 and 1976, three German states denied campaign broadcasting time on radio and television to three radical left- wing parties. The Federal Constitutional Court vindicated the right of radical parties to receive airtime for their campaigning on public broadcast-ing stations and channels, and found it to be a severe violation of public law when political parties were denied airtime without sufficient reason.59

However, the Federal Government did not drop the idea of using militant democracy measures to protect the existing constitutional order and, even now, one should not assume that the contemporary German government maintains a weakened commitment to militant democracy.60 In the after-math of the Communist Party case, the interpretation of the requirements imposed by the free democratic basic order on political actors – and espe-cially the preventive nature of the militant democracy notion – was revived and widely applied in order to screen those entering civil service. In this respect, the Court’s judgment on the Communist Party case significantly influenced activities and policies of the Federal and State Bureaux for the Protection of the Constitution (established in 1950).61 The task of this Federal Office and similar offices in every state was to collect and analyse information and intelligence about (amongst other things) activities directed against the free democratic basic order.62 When the system of such agencies was put into practice in 1950, there was no definition of ‘activities directed against the free democratic basic order’ and, unlike in cases of declaring political parties unconstitutional, the discretion to act was undeniably wide.63 The definition was only clarified in 1990 and in fact incorporated the definition given by the Federal Constitutional Court in the SRP case.64

In the early 1970s, Germany faced a fear of radical groups infiltrating government institutions and, after an extended period of radical unrest, both the Federal and state governments issued the Radicals Decree (also known as Loyalty Decree) on 28 January 1972.65 The purpose of the decree was to set out guidelines on the recruitment and dismissal of civil servants so as to exclude enemies of democracy from the civil service: they were barred from engaging in anti- constitutional activities and belonging to organisations engaged in such activities. The policy was quite broad in its purpose and application, even being applied to branches of government well outside the most important and sensitive posts in the civil service and state officialdom. For example, the German Federal Disciplinary Court in 1980 affirmed the dismissal of a train driver due to his membership and activities on behalf of the German Communist Party.66 In a later case, the Federal Administrative Court upheld the dismissal of a postman for similar reasons.67 The Commu-nist Party was declared as ‘hostile to the Constitution’68 and so courts


considered any activities on its behalf as a violation of their duty of political loyalty to the state and the constitution. Between 1972 and 1987, the gov-ernment subjected millions of civil service applicants to a loyalty test. Katzenstein has estimated that between 1973 and 1980 around 1.3 million applicants were screened and about 1300 were barred from public service positions.69 The duty of loyalty was regarded by the Federal Constitutional Court and governmental agencies as going way beyond neutrality and mere loyalism.70 What was required by applicants to prove their suitability to carry out their jobs was active loyalty. It was required that they prove that their ‘opinions, attitudes and convictions coincide with those of the State’.71 Sometimes the state targeted individuals with a hardly visible link to anti- constitutional organisations (for example, the instance of the dismissal of a man from the civil service because he was cohabitating with Gudren Ensslin, founder of the German terrorist group Red Army Faction).72

It seems that Germany opted for some trade- offs by shifting from the pro-hibition of political parties to less drastic, but not less controversial, meas-ures of a loyalty screen of public servants.73 This preventive character of militant democracy was greeted with enthusiasm and has been actively applied in less radical militant democracy measures. The Communist Party case, and especially the Loyalty Decree, can be considered examples of militant democracy employed by democrats who aim to preserve democracy at any cost. However, if we take a closer look at the nature of these mecha-nisms, the procedural guarantees that run with them, the scale of their application, and even their reasonableness (as in the cases dismissing postmen, train drivers, teachers), it appears that the stronger protection pro-vided to political parties was traded in for measures requiring less justifica-tion from the government but which placed an excessive burden on individuals applying for, or already employed in, public service positions. In this respect, Germany’s approach of dealing with ‘radicals’ attracted wide criticism.74 The treatment of so- called ‘radicals’, especially commu-nists, was characterised as ‘hardly consonant with a free democratic state’.75 It was declared by the Federal Constitutional Court in 1961 that, unless the Court itself prohibits a party on the basis of unconstitutionality, no- one can assume invalidity as a fait accompli and waive guarantees of protection to political parties.76 However, no limitations were established on the ability of the executive and the judiciary to label certain parties as ‘hostile to the Constitution’ (a term indeed not mentioned in the Constitution), which has arguably the same connotation in substance as unconstitutionality.77 The state’s active role in the protection of the constitution by the institutions of the state itself seemed a less plausible model within only a couple of decades after the new constitutional order was established. There were multiple calls to give citizens themselves, through their involvement in the political process, a more active role in the promotion of democracy and the protection of constitutional values. Extensive intervention from the state can create the impression that the government is attempting to neutralise political dissent


and can force the process of forming radical opinions underground (the so- called tendency towards ‘ghetto formation’) and can result in a hardening of ideology:78 a situation which is arguably more difficult to control and address than open political debate of conflicting and radical ideas. To present a full picture of the application of militant democracy in Germany and further practical difficulties, it is worth mentioning one of the latest developments in Article 21(2) jurisprudence. The National Demo-cratic Party (NDP) has been attacked for neo- Nazi tendencies since its incep-tion in 1964 and has probably always satisfied the criteria of anti- constitutionality according to the assessment of the Bureau for the Pro-tection of the Constitution and of political scientists committed to research on extremism.79 The discussion about banning the NDP was revived in the late 1990s;80 however, the question of its unconstitutionality was not referred to the Court until 2003. Tension between the government and NDP was not new; as early as 1975, the NDP challenged an Interior Ministry report that described it as a party engaged in unconstitutional activity, an enemy of freedom, and a danger to the free democratic order. The NDP con-sidered such statements a violation of the party privilege guaranteed by Article 21(1) of the Basic Law. The Court found that governmental agencies are permitted to make such statements even if the party in question has not been declared unconstitutional. In 2002, the Federal Constitutional Court was asked to rule on the con-stitutionality of the NDP.81 The reason for the application was a number of racially motivated attacks on foreigners and a series of hate crimes attributed to neo- Nazi groups active in Germany. Moreover, the NDP was gaining support amongst the young population of the country. The Court found the constitutional complaint admissible and scheduled a hearing. However, a few days before the hearing, the Court was informed that one of the party activists had been an informer for the intelligence services. The case was heavily reliant on public statements by a member of the party which were suggested to represent the anti- constitutional views of the party, when in fact the person who said them was an informer. The Court was compelled to suspend the hearing. The applicants later disclosed that between 1997 and 2002 ‘no more than 15 per cent of the members of the party leadership at the Federal and State level worked as informers of intelligence services’82 (but refused to disclose the names of all informers). The respondents asked the Court to stop the proceedings and the ‘Court thus had to decide whether the proceeding could be continued despite the revelation that a considerable number of members of the NPD acted as informers for the intelligence ser-vices before and during the proceedings’.83 In the end, four judges voted to continue the proceedings while three others found that the presence of informers in the NDP leadership prevented the Court from proceeding further. The case ultimately amounted to a decision on the procedural details of the process: according to the Federal Constitutional Court Act any decision


in proceedings to prohibit and dissolve a party with negative consequences for the respondent requires a two- thirds majority of the members of the Senate (six out of eight)84 assigned to deal with the application. This is a procedural guarantee of political parties’ rights, giving additional legitimacy to Court decisions to ban political parties. The solution offered by the Federal Constitutional Court ‘was greeted with a sense of relief by all parties concerned’.85 There was legitimate fear that success in outlawing the NDP would only serve to further radicalise its members. On the other hand, if the Court failed to find the substantial grounds proven, the NDP would be free of any charge, which would give it more legitimacy and popularity. The Court’s decision to leave the substantive issue unsolved represents probably the most suitable solution in the circumstances. The main consequence of this decision is the exclusion of any possibility of a successful application to outlaw the party (except in cases of clear and present danger to democracy) as long as the minority judges remain in office. Those judges will be respons-ible for regulating the increasing use of executive means to fight the enemies of democracy. It is possible to assume that, free of judicial intervention, such parties will become the subject of more coordinated and organised interfer-ence by the state. The NDP case led some commentators to conclude that the concept of militant democracy is withering away as an effective safeguard against antidemocratic political parties.86 I see it rather as a signal to the government that it will not be easy to declare a political party unconstitutional unless it has made serious attempts and had realistic opportunities to damage the existing constitutional order. It does not mean, however, that the German state appears to be defenceless against those aiming to damage democracy. Instead of party prohibition, the government will need to opt for alternative measures, like the individual prosecution of party members for any crimes they might commit (as has been the case with some leading NDP figures), the banning of non- party organisations, and other measures.87 Today, Germany represents a state with a stable democratic system that can afford party dissolution proceedings only in extreme circumstances.

Notes

1 Thilo Rensmann, ‘Procedural Fairness in a Militant Democracy: the “Uprising of the Decent” Fails Before the Federal Constitutional Court’ (2003) 4 German Law Journal, 1117.

2 Norman Dorsen, Michel Rosenfeld, András Sajó, and Susanna Baer (eds), Com-parative Constitutionalism: Cases and Materials (West Group 2003), 1286.

3 Peter C Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law. The Theory and Practice of Weimar Constitution (Duke University Press 1997), 1.

4 The Enabling Act was approved under the threat of the storm troopers. For more details, see Karl Dietrich Bracher, The German Dictatorship: The Origin, Structure, and the Effects of National Socialism (trans. Jean Steinberg) (Praeger 1970), 199–211.


5 Ibid. 6 Caldwell above n 3, 1. 7 Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of

Germany (Duke University Press 1997), 218. 8 See, for example, Richard A Posner, Not a Suicide Pact: The Constitution in a Time

of National Emergency (Oxford University Press 2006). 9 Elmar M Hucko (ed.), The Democratic Traditions. Four German Constitutions (St.

Martin’s Press 1989), 68.10 For example, Article 1 states:

(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.

11 Article 20 states:

(1) The Federal Republic of Germany is a democratic and social federal state. (2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legis-lative, executive, and judicial bodies. (3) The legislature shall be bound by the constitutional order, the executive, and the judiciary by law and justice.

12 The elements of Germany’s militant democracy were outlined above at pp. 65–70 and it includes a non- amendable character given to the most fundamental provi-sions of the Basic Law (Article 79, III), forfeiture of the basic rights (Article 18), prohibition of associations, the purpose and activities of which are directed against the constitutional order or the concept of international understanding (Article 9, II) and mechanism to outlaw political parties and declare them unconstitutional, as well as an obligation imposed on political parties in terms of their internal structure which must confirm the democratic principles (Article 21).

13 See Markus Thiel, ‘Germany’, in Markus Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate 2009), 121, for details on the Hamburg Senate attempt to ban the National Liste (‘National List’), a small right- wing party in 1989.

14 Socialist Reich Party Case. 2 BVerfGE 1 (1952).15 Commentators observe that the banning of the party was surely no surprise. See

David P Currie, The Constitution of The Federal Republic of Germany (University of Chicago Press 1994), 216.

16 Thiel above n 13, 121.17 Kommers above n 7, 219.18 Kommers above n 7, 220.19 Kommers above n 7, 222.20 SS is an abbreviation for the Schutzstaffel, German for ‘Protective Squad’, which

began as a special guard for Adolf Hitler and other party leaders. Eventually overshadowing the Storm Troopers (SA) in importance, the SS became, after 1934, the private army of the Nazi party.

21 SA is an abbreviation for the De Sturmabteilung, German for ‘Storm Detach-ment’, ‘Assault Detachment’, or ‘Assault Section’, usually translated as ‘Storm Troop(er)s’. It functioned as a paramilitary organisation of the Nazi Party.


22 See Carl J Schneider, ‘Political Parties and the German Basic Law’ (1997) 10 The Western Political Law Quarterly, 539.

23 Federal Electoral Law Enacted on 7 May 1956 (Federal Law Gazette I, p. 383). Article 46(1):

A deputy shall lose his or her membership of the Bundestag (5) if the Federal Constitutional Court finds in accordance with Article 21 (2) of the Basic Law that the political party or party section of which the deputy is a member is unconstitutional.

24 Hernan Pintos- Lopez and George Williams, ‘Enemies Foreign and Domestic: Thomas v. Mowbray and the New Scope of the Defence Power’ (2008) 27 Univer-sity of Tasmania Law Review, 108.

25 David Dyzenhaus, ‘Constituting an Enemy: A Response to Carl Schmitt’, in András Sajó (ed.), Militant Democracy (Eleven International Publishing, 2004), 29.

26 Throughout this section, I rely on David Dyzenhaus, ‘Constituting the Legis-lature’, in David Dyzenhaus, The Constitution of Law. Legality in a Time of Emer-gency (Cambridge University Press 2006), 72–86.

27 Dyzenhaus above n 26, 73.28 Communist Party Dissolution Act 1950 (Cth).29 Anthony Blackshield and George Williams G, Australian Constitutional Law and

Theory. Commentary and Materials (The Federation Press 2014), 845.30 Preamble, Communist Party Dissolution Act 1950 (Cth).31 Ibid.32 Ibid.33 The Act commenced with nine recitals, indicating facts supporting the exercise

of the legislative powers in relation to the Communist Party (specifically powers to legislate in matters of national defence). ‘Lengthy preamble recitals are con-sidered as statute’s most remarkable feature.’ See, for example, Dyzenhaus above n 25, 19.

34 Australian Communist Party v. Commonwealth (1951) 83 CLR 1.35 For the broader implications of this case for the Australian constitutional law,

see, for example: Roger Douglas, ‘A Smallish Blow of Liberty? The Significance of the Communist Party Case’ (2001) 27 Monash University Law Review, 253; George Williams, ‘Reading the Judicial Mind: Appellate Argument in the Com-munist Party Case’ (1993) 15 Sydney Law Review, 3; George William, ‘The Sup-pression of Communism by Force of Law: Australia in the Early 1950s’ (1996) 42 Australia Law Journal of Politics and History, 220; George Winterton, ‘The Communist Party Case’, in HP Lee and George Winterton (eds), Australian Con-stitutional Landmarks (Cambridge University Press 2003), 108.

36 For more details, see Dyzenhaus above n 25, 15–46.37 Pintos- Lopez and Williams, above n 24, 108.38 Malcolm Mackerras and John Warhust, Constitutional Politics. The Republic Refer-

endum and the Future (University of Queensland Press 2002), 12.39 Preamble, Communist Party Dissolution Act 1950 (Cth).40 Ibid.41 Pintos- Lopez and Williams above n 24, 109.42 Australian Communist Party v. Commonwealth, above n 34 (Judge Dixon).43 Karl Loewenstein himself acknowledged that militant democracy measures are

not practically possible in the United States. For a more detailed account of


American exceptionalism, see Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harvard Law Review, 1415–21.

44 Currie mentions that early cases from Germany bear a close family resemblance to that of the Supreme Court in Dennis v. United States. See Currie above n 15, 215, 220–1.

45 Geoffrey R Stone (ed.), Constitutional Law, 5th ed. (Aspen Publishers 2005), 1084.

46 The official title is The Alien Registration Act (18 US Code §2385). It is usually called the Smith Act (as the author of the anti- sedition section was Howard W Smith, representative of the State of Virginia). Section 2 and 3 of the Smith Act provide as follows:

Sec. 2 (a) it shall be unlawful for any person – (1) to knowingly or wilfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of such government; Sec. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of . . . this title.

47 Dennis v. United States. 341 US 494 (1951).48 See, for example, Geoffrey R Stone, Perilous Times: Free Speech in Wartime. From the

Sedition Act of 1798 to the War on Terrorism (W.W. Norton & Co 2004), 410.49 Communist Party of Germany Case (1956), 5 BVerfGE 8. See Kommers above n 7,

222.50 For example, in the 1953 national elections, the party was supported only by 2.3

per cent, and by 1956 (under the effects of the West German economic boom) it lost almost any remaining popular support.

51 Kommers above n 7, 218.52 Ibid. 223.53 Peter Niesen, ‘Anti- Extremism, Negative Republicanism, Civic Society: Three

Paradigms for Banning Political Parties’ (2002) 1,2 German Law Journal, 12.54 Ibid.55 Kommers above n 7, 223.56 Ibid. 223–4.57 Sabine Michalowski and Lorna Woods, German Constitutional Law. The Protection

of Civil Liberties (Ashgate 1999), 19.58 Radical Groups Case (1978), 47 BVerfGE 198.59 For a detailed account of this decision, see Kommers above n 7, 224–7.60 Ronald J Krotoszynski, ‘A Comparative Perspective on the First Amendment:

Free Speech, Militant Democracy, and the Primacy of Dignity as a Preferred Constitutional Value in Germany’ (2004) 78 Tulane Law Review, 1592.

61 Niesen above n 53, 30.62 Gullian More, ‘Undercover Surveillance of the Republikaner Party: Protecting

a Militant Democracy or Discrediting a Political Rival?’ (1994) 3(2) German Politics, 285.

63 Ibid.64 The free democratic basic order is based on such factors (amongst others) as the

separation of powers.65 ‘Der “Radikalenerlaß” or “Radicals Decree” ’, Ministerialblatt Nordrhein- Westfalen

[Ministerial Gazette North Rhine- Westphalia], 1972, 342.


66 G Brinkmann, ‘Militant Democracy and Radicals in the West German Civil Service’ (1983) 46(5) The Modern Law Review, 584.

67 Ibid.68 Ibid.69 Shawn Boyne, ‘Law, Terrorism and Social Movements: The Tension Between

Politics and Security in Germany’s Anti- Terrorism Legislation’ (2004) 12 Cardozo Journal of International and Comparative Law, 57.

70 See, for example, the 1975 Constitutional Court decision that confirmed the rejection of an applicant for a law apprenticeship because of his political activ-ities during his time as a student: 39 BVerfGE 334. Cited in Brinkmann above n 66, 586. For further details, see Robert A Monson, ‘Political Toleration Versus Militant Democracy: The Case of West Germany’ (1984) 7(2) German Studies Review, 308–11.

71 Brinkmann above n 66, 586.72 Boyne above n 69, 57.73 The Federal Constitutional Court was asked to decide on a party ban for the first

time since the Communist Party case only in 1993: the Federal Government and the Bundesrat asked to declare as unconstitutional the Free Democratic Workers Party and Hamburg’s Senate filed a similar petition in relation to the National List party. In 1994, the Federal Constitutional Court rejected to rule so as these organisations did not qualify as ‘political parties’ within the meaning of Article 21.

74 Brinkmann above n 66; Boyne above n 69; Mary Nolan, ‘Pushing the Defensive Wall of the State Forward: Terrorism and Civil Liberties in Germany’ (2012) 39(3) New German Critique 109; Karrin Hanshew, ‘Daring More Democracy? Internal Security and the Social Democratic Fight against West German Ter-rorism’ (2010) 43 Central European History, 117; Gillian More, ‘Undercover Sur-veillance of the Republikaner Party: Protecting a Militant Democracy or Discrediting a Political Viral?’ (1994) 3(2) German Politics, 284; Michael Mink-enberg, ‘Repression and Reaction: Militant Democracy and the Radical Right in Germany and France’ (2006) 40(1) Patterns of Prejudice, 25; Robert A Monson, ‘Political Toleration versus Militant Democracy: the Case of West Germany’ (1984) 7(2) German Studies Review, 301.

75 Brinkmann above n 66, 600.76 Ibid.77 Brinkmann above n 66, 591.78 Minkenberg above n 74, 44.79 Peter Niesen, ‘Banning Parties in Germany: Lessons from Europe’ (2007) 9

Working Paper Technische Universitat Darmstadt, 12.80 Thiel above n 13, 122.81 It was a joint application by the Federal Government and both chambers of the

Federal Parliament (this initiative gained support from all the major political parties) and therefore appears to be an unprecedented move so far. National Democratic Part of Germany Case (2003), 2 BVB1/01, 2/01, 3/01.

82 Rensmann above n 1, 1120.83 Ibid. 1121.84 Ibid. 1122.85 Ibid. 1133.86 Miguel Revenga Sanchez, ‘The Move Towards (And the Struggle For) Militant



87 Article 9(2) of the Basic Law allows prohibition of associations. The power to prohibit such groups is held by the executive, with a possibility of further appeal to the Court. The Federal Administrative Tribunal (the highest Court in the system of administrative justice) has ruled several times on the prohibition of associations on the grounds that they were directed against the established con-stitutional order – for example, the Wehrsportgruppe Hoffmann Case (BVerwGE 61, 218 [1980]). In that case, the association had an authoritarian leadership and a rigid hierarchy. It was a military sport group and its members received para-military training. The Federal Administrative Court established that the mere fact that the association rejected the constitutional order was not enough to justify its prohibition. Associations could be banned under Article 9(2) of the Basic Law only if they want to realise their unconstitutional goals to threaten the constitutional order of the German state. The most essential step is an attempt to realise anti- constitutional goals through acts of violence or other illegal activ-ities. (It is against the principle of pluralism to suppress any group the activities of which are directed against the established constitutional order.) For details, see Michalowski and Woods above n 57, 1–23. Another relevant case decided by the Federal Administrative Tribunal is Nationalist Front Case (BVerwG NJW 1993, 3213).

5 Militant democracy and political parties in Europe

This chapter focuses on militant democracy as it has been used to regulate the activities of political parties in Europe. This chapter does not seek to provide a full review of contemporary constitutional militant democracy practices in all states in the region; there is no shortage of literature that investigates regulation of political parties in individual states.1 Instead, this chapter will identify general trends in such practices as are common to most European states, with special emphasis on democracies that have emerged since the demise of the communist regime in 1989. Also, the chapter draws upon the jurisprudence of the European Court of Human Rights (ECHR). ECHR case law is included in the case study; however, it is treated as a sepa-rate jurisdiction for a few reasons. First of all, it is an international court, established by the Council of Europe, which hands out binding judgments for 47 member states. A considerable number of democracies in Europe are bound to follow and abide by its jurisprudence on the treatment of political parties. Second, the last couple of decades have seen a proliferation of case law from this body on militant democracy measures and their application. Therefore, it provides ample opportunity to analyse and investigate the development and practical application of the concept of militant democracy in the domestic jurisprudence of European democracies. Third, the jurispru-dence of the ECHR mirrors to a large extent the constitutional practices of European states and can provide a useful insight into the potentially more problematic national constitutional and legislative provisions on militant democracy as applied in practice.

5.1 Militant democracy in Europe: from post- war to post- communist democracies

There are three main themes that emerge from a study of militant demo-cracy measures in Europe, including post- communist democracies. First, most of them provide constitutional or legislative protections to political parties. Second, many democracies in Europe provide for the dissolution of political parties in particular circumstances; however, these measures tend be infrequently used. Third, there are two alternative and less restrictive


(compared to party dissolution) measures that are often seen in this context. The first of these is the inclusion of measures which restrict the activities of political parties, such as mandatory registration procedures and temporary suspensions. The second of these less restrictive measures are those which impose duties of loyalty on certain sections of society. This section of the chapter will outline each of these points in turn. The traditional understanding in pre- war Europe was that constitutions of Western liberal democracies tend to pay little attention to the role and place of political parties – as well as other intermediary organisations – in their democratic systems. This can be explained by a commitment to a par-ticular paradigm premised on the ideal of small- scale democracy and direct forms of political participation.2 It has long been considered that such beliefs are incompatible with the idea of political parties taking an important role in politics and decision- making.3 But unlike that pre- war European approach, today’s democracies treat political parties as crucial institutions for the realisation of political participation, pluralism, and the functioning of the modern democratic polity in general.4 The approach in the past few decades has become a kind of conventional wisdom and some authors even argue that political parties created democracy.5 As a result, in the majority of contemporary European states, many of which are newly emerged (or re- established) democracies, political parties are highlighted not only in terms of their role in elections, but as a key instrument for the expression of polit-ical pluralism and the creation of routes of political participation.6

In the first years of post- war Europe, there were already several moves towards the constitutionalisation of political parties, with the earliest case occurring in Iceland in 1944.7 Iceland was followed by Austria in 1945, Italy in 1947, and the Federal Republic of Germany in 1949 (Germany having been discussed in detail in Chapter 4 in the context of constitutional limitations imposed on political parties in addition to their constitutional recognition). The clear tendency to accord formal recognition to political parties8 and the further constitutionalisation of political parties appeared to happen in waves or clusters corresponding to waves of democratisation, state formation, and constitution writing in the region.9 Through this view, Iceland, Austria, Italy, and Germany belong to the first wave of post- war party constitutionalisation. The second wave occurred in the 1950s and 1960s and was connected with the break- up of the French and British colonial empires. Corresponding cases include France, Malta, and Cyprus. The third wave of party constitutionalisation occurred in the 1970s and essentially cor-responds to a wave of democratisation in Southern Europe (Greece, Portugal, and Spain). The fourth wave includes Norway and, most significantly, the new Central and Eastern European democracies, the majority of which adopted new constitutions after the demise of communism. Finally, the fifth wave of party constitutionalisation includes Finland and Switzerland, both in 1999, and Luxembourg in 2008.10 Alongside this increased constitutional recognition of the role and importance of political parties, there has also

Political parties in Europe 89

been an increased amount of legislation regulating both the external and the internal activities of political parties, especially in the case of recently emerged European democracies. At the moment, however, there is only a small minority of European democracies that do not acknowledge the exist-ence of political parties in one way or another in their constitutions11 and some 20 countries have even adopted a special party law.12 The constitu-tional provisions and legislation on political parties in this context often include the most well- known militant democracy measure – the dissolution and/or suspension of political parties – as well as other means to regulate the activities and discipline the behaviour of political parties.13

The treatment of political parties and the legislative measures to regulate their activities are not uniform across Europe. In this respect, scholarly com-mentaries are remarkably unanimous in concluding that there is a substan-tial difference in the levels of party constitutionalisation between the so- called old and new democracies.14 Apparently, there is a strong link between the length of democratic experience and the ways political parties are defined and regulated in modern democracies.15 Notably, new demo-cracies associate political parties greatly with rights and freedoms but at the same time provide a wider range of restrictions that can be imposed on polit-ical parties, combined with judicial oversight to monitor their constitution-ality and lawfulness.16 In this respect, the constitutional admission of political parties and their adherence to democratic principles became one of the central issues of emerging democracies. This is the subject matter of this section. The abolition of political censorship in post- communist states resulted in the growth of political extremism and hate speech.17 Thus, when those coun-tries established systems of parliamentary democracy, the classic question of how to protect a democratic system against antidemocratic forces and pre-serve democratic power arose, and kept constitution- makers busy drafting relevant constitutional provisions.18 In addition to various institutional reforms and experimentation with systems based on a popular vote, many democracies enthusiastically adopted party regulation legislation and, with it, new powers to dissolve political parties. Literature on democratisation and empirical observations from various case studies led to the popular con-clusion that the ‘threats posed by former regime elites, heightened political tension, instability, insecurity and distinctive modes of transition’ con-tributed greatly to decisions in favour of mechanisms of proscription of political parties in new European democracies.19 Militant democracy is the paradigm to explain the proscription of political parties in liberal demo-cracies, and post- communist Europe is an excellent case to demonstrate how militant democracy can be utilised during a transitional period to ensure progress in the right direction: towards democratisation and the liberation of a society. The transition to democracy in post- communist countries was accom-panied by two specific and somehow contradictory circumstances common to


all of these states. On the one hand, after a long experience of one- party rule, states were, in general, hesitant to put any serious constraints on parties’ activities, and ‘celebrated the principle of party pluralism (at times, even proclaiming this principle in their constitutions)’.20 On the other hand, the collapse of the communist regime caused a serious ideological vacuum and it was legitimately expected that many extremist organisations would use this opportunity to mobilise large numbers of ‘lost’ voters. It was not unusual for new democracies to be characterised by ‘uncertainty, polarization, political tension and significant disagreement over the pace and forms of democrat-ization’.21 Therefore, the principle of political pluralism was complemented in the legal systems of post- communist European states by the possibility to resort to militant democracy measures when and where they are needed. The past experiences of oppressive regimes that endured for many years in Central and Eastern Europe triggered wide support for the constitutional and legislative militancy we find in many countries in this region. Sajó, for example, suggests that militant democracy reactions in the transitional period were adopted by post- communist constitutional regimes in response to at least three major risks present in those societies: (1) the return of the communists; (2) territorial disintegration because of extreme nationalism; and (3) right- wing extremism.22 Political extremism began to flourish in post- communist states as a result of strong resentment for censorship in any form and, as Priban and Sadurski note, ‘political extremism in [Central and Eastern European] countries successfully cooperated with EU extremist organizations such as the Liberal Party in Austria, the National Front in France, and the Republican Party in Germany’.23 Sajó further points out that the actual constitutional and jurisprudential reactions were not framed in a way that treated the various threats in a differential manner: all totalitarian attempts were to be treated equally, irrespective of the actual nature of the danger they represent.24

In general, the constitutional systems of post- communist European states provide wide- ranging means to regulate political parties’ activities and to take measures once a party becomes potentially dangerous for democracy.25 However, commentators note that militant democracy measures in relation to political parties have been used sparingly in the region26 and the Council of Europe notes that states with provisions on party dissolution hardly ever invoke them.27 In this respect, the practice of Turkey, which has prohibited a high number of political parties over the years, ‘stands in sharp contrast with the prevailing European approach, under which political parties are prohibited or dissolved only in exceptional cases’.28 Central and Eastern European (CEE) post- communist states have been reluctant to put militant democracy into practice.29 However, it would be an exaggeration to claim that the application of militant democracy measures in relation to political parties in the constitutional practices of the CEE region is without problems and concerns. At the same time, it is important to bear in mind that most attempts to ban political parties – as well as some other measures imposing


limitations on party activities – have been brought to the attention of the European Court of Human Rights and that, in most of the cases, political parties were accorded extremely wide protections provided they did not use violence as a means of achieving their goals. As a result, most of the unjusti-fied attempts by governments to dissolve or prohibit political parties have been corrected by the constitutional courts (such as the case of the political party ‘Christian Democracy of the Third Polish Republic’)30 or by the ECHR. As mentioned above, constitutional and legislative recognition of political parties often bring with them measures of a militant democracy nature that allow for dissolution and other restrictions on political parties. The analysis of legislative provisions and jurisprudence of post- communist states in Europe throws up three types of militant democracy measures that have been applied: dissolution of political parties; measures other than dissolution that restrict activities of political parties; and duties of loyalty in relation to civil servants.

Dissolution of political parties

As mentioned above, Central and Eastern European post- communist states are generally hesitant to go so far with militant democracy measures as to ban political parties. One of the most recent studies on the illegalisation of political parties provides statistics on party dissolution cases in Europe and refers to 22 party bans in 12 European states.31 Leaving aside pre- 1989 party dissolution cases and cases from Turkey after 1989, there have only been eight parties banned in post- communist Europe: the Communist Party of Latvia (1991), the Communist Party of Lithuania (1991), the Communist Party of the Soviet Union/Russia (1991), the United Macedonian Organisa-tion Ilinden- Pirin (Bulgaria, 1999), the Russian Christian Democratic Party (2004), the National Bolshevik Party (Russia, 2005), the Republican Party of Russia (2007), and the Workers Party (Czech Republic, 2010).32 Whilst political parties have also been refused registration in a number of cases, most often these refusals have stemmed from non- compliance with purely formal requirements.33 So, militant democracy measures were applied by post- communist democracies in Europe only sparingly to both party dissolu-tion and refusal of registration. This conclusion is particularly positive given there is no lack of extremist parties and associations in the region.34 There is considerable debate as to whether new democracies should resort to banning political parties and how effective such measures are.35 As was discussed in Chapter 3, militant democracy measures in relation to political parties may contribute to political stabilisation and, where bans are directed against former ruling parties, it helps to symbolically ‘demarcate’ the past and emphasise the democratic values of the newly established legal and political order. Nevertheless, post- communist Europe has clearly demonstrated its commitment to refraining from denying political parties the chance to be involved in politics and to run for elections.


There are a few reasons that might help explain the hesitance of states to interfere with the activities of political parties in post- communist Europe. First of all, with the effluxion of time, more and more democracies in the region are becoming more stable and can afford wider tolerance towards extreme ideas and movements, even to those advocating openly racist and neo- fascist slogans.36 The current political situation appears to be more or less capable of promoting the idea that extreme speech and ideas can be cured only by discussion, and there is a growing perception that in- fighting against radicalism in politics, mechanisms such as free elections, active engagement of citizens in public life, and strong ‘open society’ institutions are more effective than legal measures suppressing or eliminating political players from politics. Second, the experience of a recent totalitarian past has the potential to paradoxically limit states in their ability and willingness to invoke illiberal measures like party dissolution. Politicians and citizens in newly- emerged democracies tend to avoid measures and rules which remind them of their past rulers and their ways of governing. Newly established democratic structures are now routinely perceived as a complete rejection of former regimes and therefore there is a hesitation to impose any ideological limits on political groups and, especially, to ban them from politics. More-over, states tend to accord freedom to political parties in exchange (some-times) for harsher limitations imposed on hate speech. Sadruski notes that all post- communist legal systems restrict incitement to hatred on ethnic and racial grounds.37 Some commentators also suggest that there is another, very pragmatic, reason for such an approach. It is believed that it is more benefi-cial and practical to maintain control over the activities of various radical political groups inside the system rather than outside.38 Most likely, each explanation has contributed to the current state of affairs and has allowed the development of a reasonably balanced approach to the dilemma of how to protect democracy from its potential enemies. One might claim that if the frequency of party dissolution is measured against the number of extremist political movements, it looks as though militant democracy measures have been under- utilised. However, this state-ment does not match the original purpose of constitutional militancy. Militant democracy provisions are present in national constitutions and legislative acts not simply so that they may be applied. They have important symbolic meaning and also send a message to the potential targets of such measures, directing and encouraging them to adjust their agendas and pro-grammes to comply with the rules of the game (that is, the democratic prin-ciples of political participation and state governance).

Restrictions on the activities of political parties other than dissolution

Measures from the second group may include mandatory registration pro-cedures, temporary suspension of party activities, exclusion from a state’s


financial subvention, and electoral thresholds. Registration procedures for political parties are found in many jurisdictions in the region39 and usually such procedures are considered simply as standards to ensure compliance with formal criteria such as the name of the party, number of its members, existence of a party programme, and other required documents. Rules on registration procedures are not ‘a dead letter’ law and post- communist demo-cracies have denied registration to some political groups aiming to obtain the status of political party. Thus, the Czech Republic refused in 2001 to register Liberální Strana’s preparatory committee as a political party on the ground that the party’s constitution was in breach of the Political Parties Act,40 the Czech Constitution, and the Charter of Fundamental Rights and Freedoms.41 The party was declared to pursue an unconstitutional goal by seeking to break legal continuity with totalitarian regimes.42 In 1997, Bul-garia rejected an application to register an association called the ‘Civil Society for Bulgarian Interests, National Dignity, Union and Integration – for Bulgaria’ on the ground that its aims were political (which is not permit-ted for public associations but only political parties) and incompatible with the constitution.43 The association was advocating, amongst others goals, to repeal the Bulgarian Constitution of 1991, restore the monarchy, and open the border between the former Yugoslav Republic of Macedonia and Bul-garia. In 2002, Russia refused an application to register the public move-ment ‘Russian All- Nation Union’ as a political party, as the adjective ‘Russian’ (russkiy) in the name of the party referred to an ethnic group, whereas section 9(3) of the Political Parties Act prohibited the establishment of political parties based on professional, racial, ethnic, or religious affiliations.44

The general understanding, therefore, is that the requirement of registra-tion for political parties is not, per se, necessarily in contradiction with major principles of democracy.45 However, democratic states do not have unlimited discretion to decide what requirements can be imposed on parties wishing to register, and recent experience shows they take the limitations on their discretions seriously, especially in the light of the jurisprudence of the European Court of Human Rights.46 European democracies, including post- communist ones, are expected to use the same standards in cases of a refusal of a party’s registration as they would in cases of party bans: the refusal must be necessary in a democratic society and must meet the proportionality test.47 The historical and political background of each refusal to register a political party has to be taken into account, however, measures as drastic as refusal to register a party can only be applied in extreme cases where there is evidence that a party has sought to pursue its aims by unlawful and undem-ocratic means, or where a putative party proposes changes of laws that are incompatible with fundamental democratic principles.48 For example, the decision of the Russian authorities to refuse registration of the ‘Russian All- Nation Union’ was later endorsed by the European Court of Human Rights, with that decision giving a ‘green light’ to legislative provisions prohibiting


political parties based on religious or ethnic affiliation not only in Russia but in all other post- communist states of the region. The issue of temporary bans or closure of political parties has not arisen too often in post- communist European states, but such measures are to be taken seriously and applied with caution. Despite their relatively milder effect on the activities of political parties, they nevertheless represent a serious constraint on party activities with their ‘chilling effect’ on a party’s freedom, especially where a party’s activities are suspended shortly before elections. In this respect, only serious breaches by a political party would justify any temporary ban on its activities, such where a party’s platform endangers fundamental democratic principles or political pluralism.49 As to the denial of state subsidies and other financial matters, such as where states provide generous financial support to political parties, the exclusion from such privileges may substantially limit the functioning and operation of a political party, especially in the case of minor parties with modest financial resources. Moreover, in the light of the so- called war on terror launched in the aftermath of the 9/11 attacks, the suspension or withdrawal of public funding for an organisation promoting extremism (including political parties) has become a widely utilised legislative measure. Therefore, limita-tions imposed on the financial support provided for political parties might, in certain circumstances, be considered as measures in the militant demo-cracy arsenal (especially where parties are allegedly involved in terrorist or extremist activities). In addition to financial constraints, political parties might be banned from receiving financial support from a foreign political party. While there are no cases on this issue coming from post- communist Europe, the ECHR has ruled on a similar matter arising from the applica-tion of such a legislative rule in Spain.50

Duty of loyalty

As Chapter 3 detailed above, the loyalty of public servants is another recur-ring element of militant democracy. The original understanding of militant democracy in Germany includes an obligation imposed on public servants to be loyal to the constitution. The idea to expect public servants to be loyal to the system was adopted in several post- communist states.51 The Czech Republic, for example, followed an approach similar to the German one: agents who previously collaborated with totalitarian regimes are excluded from certain positions within public authorities.52 The position of the Czech legislature is relatively harsh compared to its post- communist neighbours. For example, Hungary and Poland have adopted more lenient lustration pol-icies.53 While lustration laws have affected a substantial number of people in the public service (especially in the Czech Republic), in general such prac-tices can be seen principally as symbolic measures to underline the value of transparency.54 These lustration policies and other limitations on civil ser-vants, aimed at addressing the communist danger and consolidating the


authority of a new democratic government, might appear more legitimate during the transition to democracy than in stable and established democratic regimes.55 National constitutional courts and tribunals in general follow this same line of argument when reviewing lustration laws. This section has demonstrated how the concept of militant democracy was ‘reborn’ with the collapse of communism in Europe. Newly emerged demo-cracies were not hesitant to give their democratic systems a militant stance, especially in relation to political parties. Not only were political parties acknowledged formally in national constitutions, but their external and internal activities were subjected to various constitutional and legal require-ments. Lack of compliance with those rules and rejection of democratic prin-ciples led some political parties to be affected by the application of militant democracy, resulting in their ban or suspension from politics. As was men-tioned above, treatment of political parties in European democracies, both old and new, can be brought to the attention of the Council of Europe and its Court of Human Rights. The last couple of decades have seen a prolifera-tion of case law from this institution on militant democracy measures and their application. In addition, governments of the member states of the European Union are bound by the Court’s rules and policies.56 The rest of this chapter investigates standards and recommendations developed by the Strasbourg Court to ‘guide’ European democracies through the process of applying militant democracy measures to discipline the behaviour and activ-ities of political parties.

5.2 Militant democracy in the policies of the Council of Europe and the jurisprudence of the European Court of Human Rights

The European Convention on Human Rights is a regional treaty aiming to establish a unified regime for human rights protection in member states of the Council of Europe.57 There are few provisions of the Convention which are of relevance to the militant democracy debate and which have been relied on by the European Court of Human Rights in its decisions on issues of political party dissolution. This is particularly true in relation to the so- called limitation clauses which allow the imposition of restrictions on the exercise of rights listed in the Convention. The central provision can be found in Article 11, generally guaranteeing a freedom of association:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are pre-scribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the


rights and freedoms of others. this article shall not prevent the imposi-tion of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

In most cases this Article is invoked in conjunction with Article 10, guaran-teeing the protection of free speech:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licens-ing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the inter-ests of national security, territorial integrity or public safety, for the pre-vention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

As political parties are one of the main actors in representative democracies, the provisions of Article 3 of Protocol No. 1, which provides a guarantee of free periodic elections, are potentially applicable in cases arising from the regulation of, and limitations on, political parties’ activities.58 Article 17 is also of particular interest for the analysis of militant democracy practice as considered by the Strasbourg Court:

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

National governments often refer to this Article in their arguments to support restrictions imposed on political parties and, in some cases, the European Court of Human Rights has supported such restrictions based on this provision. However, it is not correct to say that Article 17 has found widespread support in the jurisprudence of the ECHR, at least not in rela-tion to political parties. This is probably due to the broad and ambitious language of the provision, introduced into the text of the Convention in the aftermath of the Second World War. The setting in which the Convention and the Court function has clearly changed considerably since then, such that the Court now uses this provision in its decisions very rarely. Moreover, once the Court applies Article 17, it is no longer necessary for the Court to


spell out in detail its application to the particular issues raised in the com-plaint, or to state whether there was a violation of the Convention, as such cases are not decided on their merits. Not only do provisions of the European Convention on Human Rights hint at the presence of a militant democracy spirit, but also the analysis of the Court’s jurisprudence on the dissolution of political parties clearly indi-cates that militant democracy is an explicit feature of European law.59 ECHR jurisprudence on militant democracy in its traditional version – prohibition of political parties – is quite diverse, but in general matches the types of threats militant democracy measures were designed to address at various times of the concept’s ‘life’ since it was introduced to the constitutional prac-tice of European states. From the very beginning, the Council of Europe mechanism of human rights protection (European Commission of Human Rights60 and the European Court of Human Rights) has had to deal prim-arily with cases concerning the supporters of fascist or communist ideologies. In regard to these actors, the Commission and Court have developed a fairly consistent and straightforward line of argument. The majority of such applications have been either declared manifestly ill- founded or struck down under Article 17 of the Convention (the so- called ‘abuse clause’).61 The Court defined the function of Article 17 as ‘protecting the rights enshrined in the Convention by safeguarding the free functioning of democratic institu-tions’.62 One of the main objectives of the abuse clause was defined by the Court as ‘to prevent totalitarian or extremist groups from justifying their activities by referring to the Convention’63 and this Court has closely con-nected this with the notion of self- protective democracy.64 Under this inter-pretation, provisions of the Convention may not be invoked by individuals or groups ‘to weaken or destroy the ideals and values of a democratic society’.65

The first party closure case to come before the ECHR was on the prohibi-tion of the German Communist Party, banned in accordance with Article 21(2) of the German Basic Law (the judgment of Federal Constitutional Court of German to ban this political party is explained in detail in Chapter 4).66 However, the Commission did not examine the application in the light of Article 10 or 11 of the Convention, but rather applied the abuse clause enshrined in Article 17 (which corresponds very closely to Article 21(2) of the German Basic Law). On this occasion, the Court did not avail of itself of the opportunity to express an opinion on the legitimacy of the procedure to ban political parties, nor on the compatibility of such a procedure with the substantive rights provisions of the Convention. In 1979, the European Commission of Human Rights decided the case of Glimmerveen and Hagenbeek v. Netherlands.67 The applicants were the president and vice- president of the political party ‘Nederlands Volks Unie’, which had previously been pro-hibited by the Dutch authorities. The grounds for its prohibition were a Civil Code provision that allowed for the prohibition of an association if its activities or goals violated the public order. As a consequence of this ban,


the party lists submitted for the election were later declared invalid, which the applicants claimed was a violation of their right to take part in elections (Article 3 of Protocol No. 1). However, the Commission declared that the applicants could not rely on this article since they intended to use the right guaranteed by this provision for a purpose that is unacceptable in the light of the abuse clause of Article 17. Since this decision, only in 1998 has the ECHR had to deal with new types of party prohibition cases, and in sub-sequent years it has developed a substantial body of case law in this field (with most cases originating in Turkey). The demise of the communist regime in Europe and the wave of demo-cratisation in Central and Eastern Europe made the ECHR reconsider its established interpretation and application of militant democracy, and go beyond merely employing the abuse clause to strike out cases concerning the prohibition of political parties supportive of allegedly dangerous ideas and ideologies. The first merits decision on party prohibition decided by the ECHR was the 1998 United Communist Party v. Turkey case.68 In this case, the Court finally took the opportunity to comment in detail on the pro-cedure to dissolve political parties, and today the Court refers to this deci-sion and its main findings and principles in nearly all party prohibition cases. The United Communist Party of Turkey (TBKP) was considered by national authorities to be seeking to establish the domination of one social class over the others.69 The TBKP was accused of having incorporated the word ‘communist’ into its name;70 having carried on activities likely to undermine the territorial integrity of the state and the unity of the nation;71 and having declared itself to be the successor to a previously dissolved polit-ical party, the Turkish Workers’ Party.72 The Principal State Counsel at the Court of Cassation, the national authority charged with the task of initiating the ban in the Constitutional Court, relied on the Party’s programme to support its application to the Constitutional Court. The latter rejected some of the alleged violations of domestic law by the party in that the TBKP maintained that one social class, the proletariat, was superior to others, as well as supporting the notion that a political party may claim to be the suc-cessor to a party that has previously been dissolved. Nevertheless, the Con-stitutional Court held that the mere fact that a political party included in its name the word ‘communist’ – prohibited by section 96(3) of the Law on Political Parties no. 2820 – was sufficient to trigger the application of that provision and consequently to entail the dissolution of the party concerned. The Court accepted the rest of the arguments raised in the application and ordered the dissolution of the party, with all the legal and political con-sequences prescribed by the constitution.73 The party leadership lodged a complaint with the ECHR, which considered the dissolution a violation of Article 11 of the Convention.74

As there were more applications from Turkey awaiting a hearing in the Court, and as the ECHR correctly predicted that there would be further


applications from Turkey down the track, it took the chance to send a ‘guiding’ message to member states in their practice of party prohibition and other limitations they might consider imposing on political parties. First of all, the Court explicitly extended the protection of Article 11 to political parties as a response to the submission of the government that political parties should be excluded from the scope of Article 11. In this respect, the Court declared that political parties are a form of association essential to the proper functioning of democracy.75 Second, the Court introduced further safeguards for political parties against ‘aggressive’ policies of national gov-ernments, namely that political parties cannot be excluded from the protec-tion of the Convention even where national authorities regard a party’s activities as undermining the constitutional structures of the state.76 Third, in response to the objection form the Turkish government on the legal nature of the provision in question, the Court highlighted that the political and institutional organisation of member states must respect the rights and principles enshrined in the Convention, and that it matters little whether the provisions at issue are constitutional or merely legislative.77 In this respect, nothing from a member state’s jurisdiction can be exempt from scrutiny under the Convention. Further, the Court reiterated that the Convention is intended to guaran-tee rights that are not theoretical or illusory, but practical and effective, which would not be the case if Article 11 were limited only to the founding of an association, since national authorities could immediately disband the association without having to comply with the Convention.78 In addition, the Court drew attention to the precedent that

Article 11 must also be considered in the light of Article 10, as [the] protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11.79

As the Court has held many times before, there can be no democracy without pluralism. Freedom of expression as enshrined in Article 10 is applicable to ideas that offend, shock, or disturb, and the state is the ultimate guarantor of this principle.80 In this decision, democracy was once again proclaimed as the fundamental feature of the European public order and the only political model contemplated by the Convention and, accordingly, the only one com-patible with it.81 At the same time, the Court admitted that a state’s institu-tions could not be deprived of the right to protect the democratic system and that ‘therefore some compromise between the requirements of defending democratic society and individual rights is inherent in the system of the Convention (Klass and Others v. Germany)’.82 Moreover, the freedoms of association and of speech guaranteed by the Convention do not appear unlimited in their scope. However, the exceptions set out in Articles 10 and 11 are to be construed strictly, especially where political parties are


concerned, and only convincing and compelling reasons can justify restric-tions on such parties’ freedom of association. In this sense, national govern-ments have only a limited margin of appreciation,83 ‘which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts’.84

In relation to the dissolution of the TBKP, the Court found that the fact that the national authorities dissolved the party solely because of its consti-tution and programme, and before the party had commenced any activity, does not mean they did not reflect the party’s true objectives and its leaders’ true intentions. Thus, the ECHR found it necessary to examine those docu-ments. As to the party’s name, the Court ruled that a political party’s name in general is not enough to justify its dissolution. Furthermore, the Court assessed the alleged promotion of separatism and the division of the Turkish nation of which the party was accused, and recalled that one of the principal characteristics of democracy is ‘the possibility it offers of resolving a coun-try’s problems through dialogue, without recourse to violence, even when they are irksome’.85 As democracy thrives on freedom of expression, there can be no justification for banning political groups solely because they seek to debate in order to find solutions capable of satisfying everyone concerned. Therefore, the Court found Turkey in violation of Article 11 of the European Convention on Human Rights. It arrived at the conclusion that measures as drastic as the immediate and permanent dissolution of the TBKP, ordered before its activities had even started, and coupled with a ban barring its leaders from discharging any other political responsibility, were dispropor-tionate to the aim pursued and consequently unnecessary in a democratic society (violation of Article 11).86

A detailed list of the Court’s findings and statements was given so as to fully state the Court’s approach to the issue of political pluralism and the dissolution of political parties in the Council of Europe member states. The Court has since referred to and cited conclusions from this judgment in all subsequent cases. Moreover, this decision contains an important statement about the meaning of constitutional and statutory limitations imposed on political parties. While member states might otherwise have claimed that constitutional limitations have a higher legal status than statutory ones, attempting to exclude them from the Court’s supervision, the Court expli-citly rejected this argument and expressed its intent to review all national measures without differentiating as to their place in the hierarchy of legal norms.

The impact of the United Communist Party case

Only four months after the judgment in United Communist Party v. Turkey, the ECHR handed down its judgment on the case of the Socialist Party of Turkey.87 The Court mainly reaffirmed its previous judgment and stated that ‘the fact that the party’s political program is considered incompatible


with the current principles and structures of the Turkish State does not make it incompatible with the rules of democracy’.88 It remains unclear what the Court was trying to say with this statement: that some of the provisions of the Turkish Constitution are not exactly democratic, or that rules of democracy are much wider than what is written in the Constitution? In all probability, it was simply an accidental statement made in the course of attempting to give as much freedom as possible to political parties in Turkey, and advocating for peaceful solutions to the Kurdish problem. This case was followed by a few other cases from Turkey concerning mainly Kurdish parties, and in all of them the Turkish state was found in violation of the Convention.89 The OZDEP Party case is notable for the reason that the party dissolved itself before the Constitutional Court decided on the case. However, this did not help the party avoid a declaration of dissolution by the Constitutional Court, with all the consequences that accompany such a declaration. The principles proclaimed in the TBKP case indicate that political parties enjoy broad protections of their freedoms of association and speech. It does not matter that a party proposes changes and ideas not compatible with the national constitution, as the most important problems of the state should be actively debated through open dialogue. In line with this statement was the Zhechev v. Bulgaria judgment concerning the dissolution of not a political party but a public association. The ECHR held that, even if it may be assumed that what the association was trying to achieve was indeed contrary to the Constitution, it does not mean that the state’s interference in the form of ordering a dissolution of a political party was justified. One of the possible rationales behind the Court’s generous support for political parties and their agendas, even where they advocate for changes incompatible with national constitutions, is the Court’s awareness of the potential for abuse of militant democracy measures by national governments. As was mentioned in Chapter 3, one of the most challenging pitfalls of militant democracy is the possib-ility that governments will utilise such measures as a means of getting rid of political opponents. At the time of the TBKP case, some member states of the Council of Europe were still only transitional democracies and somewhat unstable democratic regimes. Therefore, there were legitimate fears that those recently established democracies could possibly have recourse to militant democracy without any real necessity or strong justification to do so, and treat the concept as a shortcut to outlaw allegedly dangerous and undemocratic political actors. However, there are signs, at least in the early party dissolution cases listed above, that the Court is generally able to detect such moves and address them in its judgments. For example, in the case of the Christian Democratic People’s Party v. Moldova, the Court acknowledged the fact that the applicant was only a minority party. It was held that the government is under an obligation not to resort to criminal proceedings where other means are available to address the unjustified attacks and criti-cisms of its adversaries or the media. However, this judgment is probably


not strong enough to conclude that the ECHR is absolutely capable and willing to handle the situation when the government abuses its dominant position and applies militant democracy measures in order to suppress its political opponents: the circumstances of the case must always be taken into account. The majority party in Moldova at the time was the Communist Party. This probably influenced the ECHR’s decision to support the applica-tion and find Moldova in violation of the Convention. This decision was in keeping with the common trend in Europe to decrease the influence of com-munist ideas and push them away from the political arena by any means. However, the fact that the Court found Turkey in violation of the freedom of association rights, including the rights of the Communist Party, probably means that the Court is capable to some extent of striking down at least the most drastic and obvious abuses of militant democracy measures by the member states. The larger problem for the Court’s jurisprudence is to what extent it can take into account the broader political context of a case. In many instances, it is obvious that, without deeply analysing the political environment of a particular country, it is very hard to glean a full account of the situation and draw a proper balance between associational freedom and a state’s interest in the protection of public order, national security, and unity. Where the Court is not able to do so properly, it might be doubtful whether it can render a meaningful decision on dissolutions. On the other hand, the European Court should be very careful of engaging with the political context in too much detail, as this might lead to the perception that the Court is interfering in the domain reserved for national authorities to regulate and control. This conclusion on the Court’s ability to address abusive and unjus-tified use of militant democracy, however, can be challenged in light of the Refah Partisi case. This was the first occasion in which the Turkish govern-ment received ‘approval’ from the Strasbourg Court for its decision to outlaw a political party – Refah – for its alleged violation of the principles of secu-larism. This case has received much (often critical) commentary and, com-bined with other cases on the principle of secularism decided by the ECHR, it can be placed in a category of judgments decided on the notion of ‘militant secularism’. The latter is treated within this book as a separate chapter.

The Council of Europe’s ‘Soft Law’ and on the issue of dissolution of political parties

As a response to the growing number of cases coming to the ECHR in rela-tion to the prohibition of political parties, the Secretary General of the Council of Europe requested, in 1998, the European Commission for Demo-cracy through Law (Venice Commission) to conduct a survey of the prohibi-tion of political parties and analogous measures. The concern expressed by the Council of Europe was not only about cases coming from Turkey, but also the fact that most post- communist European states had entrenched


mechanisms to sanction the behaviour of political parties in their constitu-tions and legislation. The Venice Commission conducted research to study the situation in various member states and later adopted the Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures.90 The document consists of seven articles and echoes the ECHR jurisprudence on matters such as the importance of political parties to a stable democratic system, and the wide protection accorded to political parties in order to prevent a government from unjustified intrusion into their activities. The Guidelines is not a directly enforceable legal instrument and consists only of recommendations, but it does summarise and complement the Court’s juris-prudence on the issue of party dissolution. Section 3 of the Guidelines allows ‘for dissolution of political parties only in cases where parties advocate for the use of violence or use it as a political mean to overthrow the democratic constitutional order but allows advoc-ating for peaceful change of the Constitution’.91 The major principles for member states to follow are that prohibition of political parties must be a measure of last resort only, and that it is necessary to provide strong judicial protection to parties facing dissolution proceedings (decisions on which should be made by the Constitutional Court or other appropriate judicial bodies). The situation in relation to the regulation of activities of political parties in Europe and the application of such legislative measures in practice have not changed substantially since 1998 and the Council of Europe is still committed to promoting the same principles as were established in its 1999 guidelines. For example, in 2008, the Venice Commission was asked to review the constitutional and legal provisions on the prohibition of political parties in Turkey.92 The Commission found that its 1998 report still repres-ented a concise summary of European practice, reiterating and confirming its conclusions.93 The number of cases decided by the ECHR on prohibition of political parties has dropped and there have not been many cases decided in the past decade or so.94 One of the latest decisions on this matter was the judgment in relation to the Batasuna political party, banned in Spain. This decision was discussed in Chapter 3 in relation to the endorsement of militant democracy as a duty imposed by international law. The decision of Spanish authorities to ban Batasuna will be discussed in further detail in Chapter 7. To summarise, there is a clear, common European approach to the issue of how a democracy should respond to attempts to threaten its existence: that is, by opening a free marketplace of ideas which is capable of neutralising extremist and allegedly dangerous ideologies and ideas for democracy. The ECHR has a developed body of case law that supports the possibility of pre-ventive action being taken by democratic states in order to prevent harm to the established order, including the possibility of dissolution of political parties. However, states are only allowed to utilise such radical and drastic measures in extreme situations. As to national practices of militant demo-cracy measures in relation to party dissolution, most post- communist states


now follow the standards established by the ECHR and Council of Europe. However, analysis of the constitutional and legislative provisions of post- communist European states demonstrates that the majority of these have reserved the right to act preventively in case there is a threat to democracy that emanates from political parties and other political movements. As we have seen, the inclusion of such measures in constitutional regimes was necessitated by the experience of totalitarian governance in the past and the fear of communists returning to the states’ structures. At the same time, for the most part, post- communist states accurately predicted the possible danger of illiberal policies in the suppressing of allegedly dangerous ideas. It appears that the presence of militant democracy provisions in the constitu-tional order during the transition granted more confidence to the govern-ment, providing them with a ‘back- up’ if their fragile regime was under attack by radicals and extremists. At the same time, such provisions send a clear message to those seeking to abolish or damage democratic structures that such activities will not be tolerated to an unlimited extent. The mili-tancy of the post- communist constitutional regimes allows everyone to parti-cipate in the political debate as long as all players follow the established rules of the game. While there are some instances of misapplication of the doctrine in post- communist states, the situation as it stands now precludes the conclusion that militant democracy was superfluous in the process of transition, or that it was abused. In most cases, inaccuracies were ultimately corrected by the national constitutional courts or later by the ECHR. CEE democracies have learnt lessons from Strasbourg’s jurisprudence on the exceptional character of party dissolution and do not utilise this measure on a regular basis.

Notes

1 See, for example, the website of the ‘Party Law in Modern Europe’ project, at www.partylaw.leidenuniv.nl/publications, accessed 30 June 2014. Also see Paul G Lewis, Political Parties in Post- Communist Eastern Europe (Routledge 2000); Jiri Priban and Wojciech Sadurski, ‘The Role of Political Rights in the Democrat-ization of Central and Eastern Europe’, in Wojciech Sadurski, Political Rights Under Stress in 21st Century Europe (Oxford University Press 2006), 219–30; Angela K Bourne, ‘Democratisation and the Illegalisation of Political Parties in Europe’ (2011) 7 Working Paper Series on the Legal Regulation of Political Parties, available at www.partylaw.leidenuniv.nl/uploads/wp0711.pdf, accessed 30 June 2014; Ingrid van Biezen, ‘Constitutionalizing Party Democracy: the Constitu-tional Codification of Political Parties in Post- war Europe’ (2012) 42(1) British Journal of Political Science, 187; Ingrid van Biezen and Gabriela Borz, ‘Models of Party Democracy: Patterns of Party Regulation in Post- War European Constitu-tions’ (2012) 4(3) European Political Science Review, 327; Ingrid van Biezen and Fransje Molenaar, ‘The Europeanisation of Party Politics?’ (2012) 35(3) West European Politics, 632; Giovanni Capoccia and Daniel Ziblatt, ‘The Historical Turn in Democratization Studies: A New Research Agenda for Europe and


Beyond’ (2010) 43(8/9) Comparative Political Studies, 949; Kenneth Wilson, ‘Party Finance in Russia: Has the 2001 Law “On Political Parties” Made a Dif-ference?’ (2007) 59(7) Europe- Asia Studies, 1089; Yigal Mersel, ‘The Dissolution of Political Parties: the Problem of Internal Democracy’ (2006) 84(4) Inter-national Journal of Constitutional Law, 1; Daniela Romee Piccio, ‘Party Regulation in Europe: a Comparative Overview’ (2012) 18 Working Paper Series on the Legal Regulation of Political Parties, available at www.partylaw.leidenuniv.nl/publica-tions/party- regulation-in- europe-a- comparative-overview, accessed 30 June 2014; George Szczerbiak, ‘Poles Together? The Emergence and Development of Political Parties in Postcommunist Poland’ (2003) 62(4) Slavic Review, 834; Krzysztof Ostrowski, ‘Political Party Formation on Central Europe, 1989–93’ (1995) 540 Annals of the American Academy of Political and Social Science, 77; Miro-slawa Grabowska, ‘Political Parties: Social Representative or Agent of Change?’ (1996) 116 Polish Sociological Review, 307; Arthur H Miller and Thomas K Klobucar, ‘The Development of Party Identification in Post- Soviet Societies’ (2000) 44(4) American Journal of Political Science, 667; Carl J Schneider, ‘Political Parties and the German Basic Law of 1949’ (1957) 10(3) The Western Political Quarterly, 527.

2 Van Biezen above n 1. 3 Ibid. 4 See, for example, Lewis above n 1; Priban and Sadurski above n 1; Capoccia and

Ziblatt above n 1; Grabowska above n 1; van Biezen and Molenaar above n 1. 5 Elmer Eric Schattschneider, Party Government: American Government in Action

(Transaction Publishers 2004), 1. 6 Van Biezen above n 1, 211. 7 Ingrid van Biezen and Gabriela Borz, ‘The Place of Political Parties in National

Constitutions: a European Overview’ (2009) 1 Working Paper Series on the Legal Regulation of Political Parties, 9, available at www.partylaw.leidenuniv.nl/uploads/wp0109.pdf, accessed 30 June 2014.

8 Van Biezen and Borz above n 1, 328. 9 Van Biezen and Borz above n 7, 10.10 Ibid. 10–15.11 For example, Belgium, Denmark, Ireland, and the Netherlands have not codified

political parties in their national constitutions. See van Biezen and Borz above n 7, 2.

12 Van Biezen and Molenaar above n 1.13 For a detailed overview of party regulations in Europe, see Piccio above n 1. For

the debate on the impact of increased state regulation of political parties, see Ingrid van Biezen and Ekaterina R Rashkova, ‘Deterring New Party Entry? The Impact of State Regulation on the Permeability of Party Systems’ (2012) 1 Party Politics, 1.

14 Van Biezen and Borz above n 7, 24–6.15 Ibid. 24.16 Van Biezen above n 1, 206.17 Priban and Sadurski above n 1, 219.18 Ibid. 216.19 See, for example, Bourne above n 1, 19.20 Priban and Sadurski above n 1, 225.21 Bourne above n 1, 7.


22 András Sajó, ‘Militant Democracy and Transition Towards Democracy’, in András Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 217.

23 Priban and Sadurski above n 1, 219.24 Sajó, above n 22, 218.25 For a brief overview of the most distinct militant democracy provisions from

Central and Eastern Europe, see Sajó above n 22, 218–19; Priban and Sadurski above n 1, 225–30.

26 Priban and Sadurski above n 1, 225.27 European Commission for Democracy Through Law (Venice Commission),

Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Polit-ical Parties in Turkey. Adopted by the Venice Commission at its 78th Plenary Session (Venice, 13–14 March 2009), section 22.

28 Ibid. section 3.29 Priban and Sadurski above n 1, 228.30 Ibid. 228.31 Bourne above n 1, 6.32 Ibid.33 Priban and Sadurski above n 1, 228.34 Ibid.35 See Bourne above n 1, 6–7.36 Priban and Sadurski bring the examples of the National Revival of Poland (Nar-

odowe Odrodzenie Polski), Bulgarian National Radical Party (BNRP), and the Hungarian Justice and Life Party (MIEP).

37 For details, see Priban and Sadurski above n 1, 221–4.38 Priban and Sadurski above n 1, 230; G Brinkmann, ‘Militant Democracy and

Radicals in the West German Civil Service’ (1983) 46(5) The Modern Law Review, 584; Shawn Boyne, ‘Law, Terrorism and Social Movements: The Tension Between Politics and Security in Germany’s Anti- Terrorism Legislation’ (2004) 12 Cardozo Journal of International and Comparative Law, 57; Mary Nolan, ‘Pushing the Defensive Wall of the State Forward: Terrorism and Civil Liberties in Germany’ (2012) 39(3) New German Critique, 109; Karrin Hanshew, ‘Daring More Democracy? Internal Security and the Social Democratic Fight against West German Terrorism’ (2010) 43 Central European History, 117; Gillian More, ‘Undercover Surveillance of the Republikaner Party: Protecting a Militant Democracy or Discrediting a Political Viral?’ (1994) 3(2) German Politics, 284; Michael Minkenberg, ‘Repression and Reaction: Militant Democracy and the Radical Right in Germany and France’ (2006) 40(1) Patterns of Prejudice, 25; Robert A Monson, ‘Political Toleration versus Militant Democracy: the Case of West Germany’ (1984) 7(2) German Studies Review, 301.

39 See van Biezen and Rashkova above n 13.40 Political Parties Act, Law no. 424/1991.41 See the facts of the case in the judgment of the European Court of Human Rights

in Linkov v. Czech Republic (2006) (Application no. 10504/03).42 Ibid.43 Zhechev v. Bulgaria (2007) (Application no. 57045/00).44 Artyomov v. Russian Federation (2010) (Application no. 14146/02).45 This conclusion is supported in the European Commission for Democracy

through Law (Venice Commission), Guidelines on Prohibition of Political Parties


and Analogous Measures. Adopted by the Venice Commission at the 41st Plenary Session (Venice, 10–11 December 1999), section 1.

46 See, for example, above n 41 and n 43 (both concern public association actively advocating for constitutional changes); also see Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania (2005) (Application no. 46626/99).

47 Partidul Comunistilor (Nepeceristi)and Ungureanu v. Romania above n 46.48 Linkov v. Czech Republic above n 41.49 Christian Democratic People’s Party v. Moldova (2010) (Application no. 25196/04).50 Parti Nationaliste Basque – Organisation Régionale d’Iparralde v. France (2007)

(Application no. 71251/01). French legislation prohibits the financing of political parties by foreign parties, in order to avoid creating a relationship of dependency and to ensure the overall protection of the constitutional order. As to this type of limitation, the Court found that the fact that a political party is not allowed to receive funds from foreign parties is not in itself incompatible with Article 11 (even where it is applied to parties of other EU states). The measure does not call into question the legality of a party, which is still allowed to get funds from other French parties and/or benefit from the state system of funding of election campaigns.

51 Lustration laws represent an interesting point of discussion from the perspective of militant democracy; however, it will not be covered in this book as it goes beyond the original scope of the research. For a detailed account of lustration laws in post- communism Europe, see Mark S Ellis, ‘Purging the Past: The Current State of Lustration Laws in the Former Communist Bloc’ (1996) 59(4) Law and Contemporary Problems, 181; Cynthia M Horne, ‘International Legal Rulings on Lustration Policies in Central and Eastern Europe: Rule of Law in Historical Context’ (2009) 34(3) Law and Social Inquiry, 713.

52 Sajó above n 22, 219.53 For more details on lustration regimes in the CEE region, see Priban and Sadur-

ski above n 1, 232–6.54 Ibid. 236.55 On restrictions of speech imposed during transition see, for example, Castells v.

Spain (1992) (Application no. 11798/85); on restriction of the political rights of police officers, see Rekveny v. Hungary (1999) (Application no. 25390/94).

56 Van Biezen and Molenaar above n 1, 632–56.57 Susan Marks, ‘The European Convention on Human Rights and its “Democratic

Society” ’ (1996) The British Yearbook of International Law, 210–14.58 The High Contracting Parties undertake to hold free elections at reasonable

intervals by secret ballot, under conditions that will ensure the free expression of the opinion of the people in the choice of the legislature.

59 Patrick Macklem, ‘Militant Democracy and Paradox of Self- Determination’ (2006) 4 International Journal of Constitutional Law, 11.

60 The Commission was abolished in 1998. Until then it was responsible for reviewing applications and making decisions on their admissibility.

61 For details, see Paul Harvey, ‘Militant Democracy and the European Convention on Human Rights’ (2004) 3 European Law Review, 407.

62 KPD v. FRG (1957) (Application no. 250/57). Decision of the Former European Commission of Human Rights (1957).

63 Zdanoka v. Latvia (2006) (Application no. 58278/00).64 David Harris, Michael O’Boyle, Edward Bates, and Carla Buckley, Law of the

European Convention on Human Rights (Oxford University Press 2009), 649.


65 Ibid.66 KPD v. FRG above n 62.67 Limmerveen and Hagenbeek v. the Netherlands (1979) (Application no. 8348/78,

8406/78). Decision of the Former European Commission of Human Rights.68 For general comments on the case, see Harris, O’Boyle, Bates, and Buckley above

n 64, 527–8; Robin CA White and Clare Ovey, The European Convention on Human Rights (Oxford University Press 2010), 463–5; Pieter van Dijk, Fried van Hoof, Arjen van Rijn, and Leo Zwaak, Theory and Practice of the European Conven-tion on Human Rights (Intersentia 2006), 828–9.

69 These actions are prohibited by Articles 6, 10, and 14 and former Article 68 of the Constitution of Turkey, and section 78 of the Law on Political Parties no. 2820 (adopted in 1983).

70 This appears to be contrary to section 96(3) of Law on Political Parties, above n 69.71 These activities are prohibited by Articles 2, 3, and 66 and former Article 68 of

the Constitution, and sections 78 and 81 of Law on Political Parties above n 69.72 This is prohibited activity under section 96(2) of Law no. 2820 above n 69.73 According to Article 69(9) of the Turkish Constitution: ‘A party which has been

dissolved permanently cannot be founded under another name.’ Article 69(10) establishes that:

The members, including the founders of a political party whose acts or statements have caused the party to be dissolved permanently cannot be founders, members, directors or supervisors in any other party for a period of five years from the date of publication in the official gazette of the Con-stitutional Court’s final decision and its justification for permanently dis-solving the party.

74 The Case of United Communist Party of Turkey and Others v. Turkey (1998) (Applica-tion no. 19392/92).

75 Ibid.76 Ibid.77 Ibid. para. 30.78 Ibid. para. 33.79 Ibid. para. 52.80 Ibid. paras 43 and 44.81 Ibid. para. 45.82 Ibid. para. 32.83 On the doctrine of margin of appreciation, see, for example, Andrew Legg, The

Margin of Appreciation in International Human Rights Law Deference and Proportion-ality (Oxford University Press 2012).

84 The Case of United Communist Party of Turkey and Others v. Turkey above n 74, 46.85 Ibid. para. 57.86 Ibid.87 The Socialist Party of Turkey and others v. Turkey (1998) (Application no.

21237/93).88 Ibid. para. 47.89 Freedom and Democracy Party (ÖZDEP) v. Turkey (1999) (Application no.

23885/94).90 Guidelines on Prohibition of Political Parties and Analogous Measures above n 45,

section 1.


91 Ibid.92 European Commission for Democracy through Law (Venice Commission),

Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Polit-ical Parties in Turkey. Adopted by the Venice Commission at its 78th Plenary Session (2009).

93 Guidelines on Prohibition of Political Parties and Analogous Measures above n 45, section 1.

94 For statistics on party bans, see Bourne above n 1.

6 ‘Softer’ militant democracy measuresAlternative solutions from India and Israel

The previous chapter was devoted to the practices of European states impos-ing restrictions on the activities of political parties, including dissolution, temporary prohibitions of party activities, and limitations in registration procedures. The approach adopted in Europe is that political parties are bound by certain rules and limitations imposed by national constitutions and legislation, but that, given the role of political parties in contemporary democracies, such limitations – and especially dissolution of political parties – shall only be applied in exceptional situations and then as a measure of last resort. However, the list of measures to discipline and control political party activities outlined in the previous chapter is not exhaustive. Constitutional practice knows other measures of a militant democracy nature aimed at reg-ulating the content of political debate and the behaviour of political parties in competing for seats in parliaments. This chapter will look at the content restrictions on electoral speech as practised in India, and the disqualification of lists and parties from elections in Israel. These measures allow political parties to remain operating within the political space while nevertheless imposing substantial limitations on their principal objective: to participate in elections and occupy seats in national parliaments. That is why such prac-tices should be considered as serious encroachments on political party activ-ities, and their ‘softer’ consequences for affected political players should not be interpreted as a call to relax the requirements of legitimacy and justifica-tion otherwise applied to party dissolution procedures.1 Nevertheless, altern-atives to party dissolution could be a useful consideration for states seeking to reconfigure their current party- prohibition practices and is more broadly of relevance for the general debate on militant democracy.

6.1 Restrictions on the content of electoral speech: the case of India

India represents a fascinating example for studies on various constitutional law issues,2 including its approach to regulating activities of political parties. Restrictions on political speech during election periods are considered for the purpose of this chapter as militant democracy measures with ‘softer’

‘Softer’ militant democracy measures 111

consequences for affected political parties (as compared with dissolution pro-cedures). Throughout its history, India has experienced numerous instances of electoral agitation, at times leading to violence and substantial fatalities. For example, in 1992, a Hindu mob destroyed a mosque and attacked other Muslim sites and homes, with the resulting ethnic riots leaving thousands dead.3 These events were caused to a large extent by the incendiary language of the Hindu nationalist political parties, including the Bharatiya Janata Party.4 Another extremist party – Shiv Sena, and its main agitator, Bal Thackeray – ostensibly instigated a wave of violence in Bombay in 1992–1993, which was described as a shocking display of ‘carnage’, follow-ing an attack on a mosque in Ayodhya.5 In such circumstances of impending violence and political unrest, the question arises of how to balance free speech (as applied to the electoral campaigns of political parties) with the need to protect democracy from extremist nationalist parties and to maintain public order. India sought to achieve this balance by tightening the limits of political speech during election campaigns. Despite a strong commitment to freedom of expression in its constitution,6 India possesses a set of legislative rules that impose substantial limits on speeches made during election cam-paigns. The Representation of the People Act, passed in 1951,7 provides for the qualification and disqualification from membership of the National Parlia-ment and state legislatures, the conduct of elections, registration of political parties, and dispute resolution regarding elections, corrupt practices, and electoral offences. In addition to regulating the procedural elements of conducting elections at both the national and the regional level, the Act aims to regulate the manner in which campaigns with a seditious intent are run and impose sanctions where political parties fail to comply with the rules. Thus, it is an offence to garner electoral support by promoting ‘[enmity] or hatred . . . between different classes of [Indian citizens] on ground of religion, race, caste [or] community’.8 In addition, the electoral code prohibits candidates or their agents from engaging in so- called ‘corrupt practices’ as identified by the Election Commission.9 Bribery, undue influ-ence on the free exercise of electoral rights, and publication by a candidate or his agent of false statements in relation to the personal character or conduct of other candidates are all examples of activities that can be declared corrupt practices under Section 123 of the Representation of the People Act. One of the proscribed electoral behaviours echoes the abovementioned provisions of Section 125 and aims to bar candidates from promoting themselves or vilify-ing opponents ‘on the ground of his religion, race, caste, community or lan-guage or the use of, or appeal to, religious symbols’.10 In addition to the authority to identify corrupt practices, the Election Commission has the power to seek remedies against candidates who rely on prohibited rhetoric, including the exclusion of such candidates from any office of elected repre-sentatives.11 This provision is not a mere theoretical possibility, as the Indian Supreme Court has imposed such ‘soft’ militant democracy measures in practice.12


Prabhoo v. Kunte, which was decided by the Indian Supreme Court in 1996, is the leading case demonstrating how an alternative militant demo-cracy measure was applied in India to maintain control over the activities of political parties and their political programmes.13 The applicant, Ramesh Yeshwant Prabhoo, was elected to a state legislative office in Maharashtra. His electoral campaign was organised by Bal Thackeray, the leader of the extreme nationalist party Shiv Sena (the political party alleged to have pro-voked a wave of violence in Bombay in 1992–1993).14 One of Thackeray’s key sources of political inspiration was Adolf Hitler, whom he praised as ‘an artist who wanted Germany to be free from corruption’.15 One rather typical speech of Thackeray’s is cited in the Court’s judgment:

Hinduism will triumph in this election and we must become hon’ble recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dug out. Anybody who stands against the Hindus should be showed or wor-shipped with shoes. A candidate by the name Prabhoo should be led to victory in the name of religion.16

The High Court of Bombay in 1989 decided that Prabhoo should be removed from his elected office due to the fact that his electoral campaign constituted ‘corrupt practice’ under the terms of the Representation of the People Act. The High Court found that Prabhoo’s electoral campaign appealed to Hindus to vote for him on the basis of his religious affiliation, and promoted or tended to promote feelings of enmity and hatred between different classes of Indian citizens on the grounds of religion and demographics.17 Prabhoo’s appeals to the electorate were replete with calls to Hindu solidarity to thwart the perceived Muslim threat.18 The Court’s decision to reverse the election results was based mainly on the manifest threat to public safety and to other candidates (in this case, those with a Muslim affiliation). Prabhoo appealed against the decision of the High Court of Bombay disqualifying him from his elected office (a right given to disqualified candidates under Section 116A of the Representation of the People Act). The Supreme Court of India upheld the decision to remove Prabhoo from his electoral office but rejected some of the findings of the High Court of Bombay. For example, the Supreme Court did not accept the conclusion that only a manifest threat to public safety would justify an electoral prohibition.19 It therefore ruled that an interpretation of the electoral code such as that given in the original deci-sion would lead to a perilously narrow understanding of the grounds to be used to identify certain forms of political speech as corrupt practices. The Supreme Court pointed out that the legislation prohibits any appeal to vote for or against a candidate based on his religion, regardless of whether the appeal poses a direct threat to public order. Seeking votes on the grounds of the candidate’s religion was declared to be inconsistent with the secular


character of the Indian state. The Court expressly said that it was going to assess not only whether speech is dangerous in terms of its consequences, but also the nature of the speech itself. Following this statement, restrictions on political speech as imposed by the concept of the ‘corrupt practice’ were found to be constitutionally permissible. However, given the rather wide interpreta-tion accorded to the notion of corrupt practices, the Court resolved any poten-tial constitutional conflict between India’s commitment to the freedom of speech and the need for democratic self- preservation by making two distinct findings about the special constitutional status of the election period.20

First of all, the Supreme Court revisited its earlier understanding of the constitutional commitment to a democratic political order and expressed its concern that all the differences of religion, race, caste, community, culture, creed, and language could generate powerful emotions depriving people of their powers of rational thought and action, and that therefore these differ-ences ‘should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed’.21 Second, the Court underlined that the prohibition on certain types of rhetoric as defined in the case of Prabhoo was directed only to the limited period of time leading up to elections. This was found to be necessary in order to maintain the integrity of the democratic process, while addressing the concern that restricting electoral agitation may be problematic from a freedom of speech perspective and potentially lead to a vague application of the principle. This balance of factors is what compelled the Indian Supreme Court to put in place serious limitations on the application of these measures. First, antidemocratic appeals by political parties can be scrutinised only during elec-tion campaigns. This means that political parties are free to speak – even in allegedly antidemocratic terms – about other candidates, and appeal for support from their electoral base on the grounds of their differences from others, including religion, race, and caste. Second, the Supreme Court inter-preted the electoral code as not imposing any ideological limitations on party programmes or behaviours as long as they comply with the rules of the game during election campaigns. The Indian approach is not free from complexities, as is always the case where a state has to decide on measures to protect its constitutional struc-tures from political threats without compromising its commitment to the principles of democracy. In the case of India, the ‘electoral code’ lacks clear guidance for decision- makers and, in addition, is typically applied retrospec-tively when elections have concluded.22 This leads to further concerns. For instance, the application of electoral code rules on prohibiting certain elect-oral rhetoric means an ‘outcome- determinate’ oriented- decision, which in the Prabhoo case was the removal from office of the candidate supported by a majority of voters.23 Moreover, measures of a retroactive nature often raise concerns regarding legitimacy. The example of electoral speech limitations as practised in India runs contrary to the general tendency to accord the widest possible protection to political parties and their leaders’ speeches


during electoral campaigns. However, the Indian case demonstrates the pos-sibility of treating the conduct of political parties during elections as sepa-rate to issues concerning their political status. India’s attempt to protect democracy appears to be ‘softer’ than traditional militant democracy meas-ures of dissolving political parties. However, in the context of impending (or recent) elections, the outcome of this approach is effectively the same, with the elected candidate losing his or her seat in parliament and a portion of the electorate ending up effectively unrepresented. However, in the Indian version of militant democracy, political parties are given some scope to self- regulate in order to stay actively engaged with the democratic process, to preserve electoral viability, and to participate in the next elections. Therefore, the Indian solution of temporarily barring extremist political parties from the electoral process by reversing election results represents a less restrictive means (compared to the dissolution of political parties) of achieving the grander goal: that is, to protect politics from potential threats that would challenge, undermine, and ultimately harm the existing order. Prohibiting political parties is a legitimate and justified measure in only extreme situations and under exceptional circumstances. However, the number of parties banned in Europe in the last couple of decades demon-strates that such a commitment to demonstrating legitimacy is not taken as seriously as it should be. The case studies in Chapter 5 revealed the problem-atic attempts of certain democratic states to eliminate even minor political parties with no prospects of influencing the content of political debate. In this respect, the Indian case is an interesting counter- example of militant democracy in action. This jurisdiction chose to refrain from interfering with the everyday activities of political parties but rather to let parties function freely until they decide to run for elections. It is hard to dispute the months of campaigning leading up to elections are of crucial importance to their eventual outcome, as it is the best opportunity for political parties and their candidates to present their parties’ programmes and appeal to the electorate for votes. Therefore, any limitations imposed on electoral rhetoric can ser-iously interfere with the process of the public forming a popular consensus, the free exchange of ideas, and the democratic debate over various social and political issues, and ultimately might influence the outcome of elections. The major setback with the Indian version of militant democracy is that it cannot yet deal with situations where a party tones down its language while on the campaign trail, but then returns to impermissibly appealing to differ-ences between citizens once elected. For example, the most prominent Hindu nationalist party, the Bharatiya Janata Party (BJP),24 was mentioned above as being one of the parties behind the 1992 Hindu mob that insti-gated ethnic riots, leaving thousands dead. However, to surmount the risk of being banned, it later adjusted its political behaviour so as to secure a pres-ence in the electoral scene, and it still today remains one of the major polit-ical parties in India. The Indian example of practising less restrictive militant democracy measures is a valuable contribution to the debate on


militant democracy, its legitimacy, and limits. Despite some serious com-plexities, the Indian solution to regulation of political parties’ activities deserves to be considered as one possible response to the threat posed by potentially dangerous political movements.

6.2 Banning political parties from elections: the example of Israel

In Israel, the theme of self- defensive democracy is not a mere theoretical debate but an everyday reality. It is discussed here in two different contexts: threats by Arab nationalists, who deny and challenge the existence of the state of Israel, and threats by right- wing Jewish nationalist extremists, whose aim is to protect Jews from anti- Semitism and whose targets are mainly Palestinians.25 Israel faces the challenge of protecting its citizens from physical acts of violence, as well as its democratic order from political actors openly attacking the very existence of the state and the way it func-tions. In respect to allegedly undemocratic political groups, Israel has developed an interesting approach towards the regulation of political parties’ activities. Israel treats electoral participation as separate from issues of party formation and functioning, but not in the same way as India does. One of the institutional arrangements that exists in Israel is the power to disqualify parties and lists from participation in the forthcoming elections without reference to the issue of a party’s legality or constitutionality. The issue of democracy’s self- defence has been a familiar theme in Israel’s con-stitutional practice for many years and the same applies to the issue of regu-lating the activities of political parties. Thus, Suzie Navot distinguishes three distinct periods in the history of Israeli law on the banning of political parties, including their disqualification from elections.26

The first period starts from the year of the state’s establishment until the early 1980s. Until 1965, there was no legal foundation to ban a party from elections on the basis of its electoral agenda – bans could solely be issued for failure to meet procedural requirements.27 Knesset Elections Law 195928 did not grant any authority to the Central Elections Committee ‘to test the qualifications of lists according to their substance of objectives and to dis-qualify lists on the basis of its ideology’.29 However, the electoral list of the Socialist Party was disqualified from participating in the 1965 elections as the party was identified at the time with the El- Ard movement, with its list including a few members of that movement.30 The El- Ard was prohibited for its objectives and activities that undermined the existence of the state, and was therefore dissolved.31 The Central Elections Committee of Israel, which is in charge of conducting elections to the Knesset (National Parlia-ment),32 refused to approve the Socialist Party list on the grounds that its members were challenging the integrity and existence of the state of Israel, and because it had ties with an illegal association.33 The decision of the Central Elections Committee to refuse the approval of the Socialist list was


challenged in the Supreme Court of Israel. The Supreme Court of Israel in the case of Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset34 upheld by majority the decision of the Central Electoral Commit-tee, despite the fact there was no statutory rule empowering the Electoral Committee to exclude the list on the basis of its ideology or programme.35 The Supreme Court’s majority judgment drew upon the fact that the Social-ist Party was refuting the very existence of the state of Israel,36 and that, therefore, society had to exercise its right to defend itself.37 Such a right was referred to in the Yeredor judgment as a ‘supra- constitutional principle’, and was declared a constitutional source to bar the list even in the absence of any specific legal grounds for a decision as made by the Central Electoral Com-mittee.38 Translating this decision into the language of militant democracy, the Israel Supreme Court established the militant character of Israeli demo-cracy as an unwritten supra- constitutional norm. In this respect, the decision in the Yeredor case is regarded as one of the most important and exceptional decisions in Israeli constitutional history, and a symbol of the idea of defen-sive democracy.39 However, despite the excitement expressed by some com-mentators, the decision was not unanimous. Justice Haim Cohn argued in dissent against disqualification, precisely on the grounds that that there was no legal framework for such actions. The second period covers the years 1985 to 1992, when Israel enacted for the first time in its history a law allowing party disqualification. In the 1984 elections to the Eleventh Knesset, the Supreme Court had to deal with the resurgent issue of a party ban in light of the emergence of the extremist right- wing Kach party.40 The party promoted racial hostility and was extreme to the extent that some observers labelled it a ‘quasi- fascist’ move-ment.41 The Elections Committee banned Kach from participation in the upcoming elections on the grounds that its racist goals were in contradiction with the foundations of the democratic regime: this decision was appealed in the Supreme Court. In the case of Neiamn v. Chairman of the Central Elections Committee for the Eleventh Knesset (Neiman I), the Court struck down the actions of the Elections Committee, approving the party’s candidacy and allowing it to run for office.42 In a majority opinion, the Court ruled that the Yeredor case should not be extended to disqualification of a racist list negat-ing the democratic character of the state,43 and that democracy must contend even with unpopular views and opinions. The extreme measure of refusing voting rights should be a measure of last resort, to be invoked only in the face of a substantial probability of danger.44 It is notable that, in the same judgment, the Supreme Court also overruled the Elections Committee’s decision to disqualify the candidacy of the Progressive List for Peace, a polit-ical party started in 1984 that advocated for the establishment of a Palestin-ian state alongside the state of Israel, as well as Israel being a state of all citizens, Jews and Arabs alike.45

In response to the perceived overreach of the Supreme Court in authoris-ing the activities of an essentially racist party, the Knesset introduced a set


of legislative provisions providing a legal basis for banning parties that made it possible to disqualify an electoral list from the upcoming elections based on political party goals. For example, section 7(a) of the Basic Law on Knesset was amended to state that a candidate’s list shall not participate in Knesset elections if its objects or actions, expressly or by implication, include impugning the existence of the state of Israel as the state of the Jewish people, negating the democratic character of the state, or incitement to racism.46 These reforms resulted in the disqualification of the Kach Party in the 1988 and 1992 elections, as well as its related entity, Kahane is Alive, in that of 1992; each of these decisions were later affirmed by Supreme Court rulings as being compatible with the provisions of Basic Law.47

The final stage of Israel’s history of party regulation was ushered in with the adoption of the Parties Law in 1992,48 which regulates the formation, status, and registration of political parties. The law has created a twofold system to review and control the activities of political parties: at the party registration stage and at the campaigning stage. Notably, the 1992 Parties Law imposes no requirement on political parties to be constituted and administered in a democratic manner.49 However, in light of frequent ter-rorist attacks, violence, and political unrest, the legislation regulating activ-ities of political parties has been expanded to address this challenge for Israeli democracy too.50 In these circumstances, the Knesset in 2002 amended section 7A of Basic Law to include a power to disqualify a list from elections on the basis of its support of terrorism.51

The amendment to electoral procedures enacted in 2002 attracted a storm of criticism and debate. For example, Kremnitzer argues that disqualifica-tion on the grounds of impugning the existence of the state of Israel as a Jewish state cannot be theoretically justified in any case. Moreover, he believes that it is hard or perhaps impossible to justify disqualification on the grounds of support for a terrorist group’s armed struggle against the state of Israel. Finally, he argues that the Supreme Court failed to follow the strict approach adopted on the grounds for dissolution.52 Navot further points out that there is no definition of ‘terrorist organisation’ and that this fact poses serious difficulties in deciding on when to disqualify a list on the grounds of support for a terrorist organisation’s armed struggle against Israel. The legislature left the interpretation of any ambiguities to the Court which might be considered controversial from the perspective of the prin-ciple of separation of powers. In such situations, the judiciary would ‘replace’ the parliament, which is the institution in charge of expressing popular will. Another problematic aspect of the 2002 amendment is highlighted by Issa-charoff, who does not welcome the idea of having a ‘double- check’ on parties, once during registration and once during elections. He suggests that such an institutional arrangement invites ‘courts to apply [a] more stringent standard when a party is outlawed and a less rigorous test when a party is simply being disqualified from having its members elected to the national parlia-ment’.53 Furthermore, he suggests that a legal model where a party is


allowed to exist but its electoral participation is restricted is not likely to be a stable arrangement. Shortly after the introduction of the amendments to disqualify a party for its support of terrorism, the Central Elections Committee made a decision to disqualify the Balad party list based on certain statements of its leader, Azmi Bishara. The content of his rhetoric was identified as denying the existence of the state of Israel as a Jewish and democratic state, as well as supporting an armed struggle or terrorist organisation that was against the Israeli state.54 The decision was appealed to the Supreme Court of Israel, which overruled the Committee’s motion ruling in favour of Bishara, the leader of the Balad party. The case turned on a careful assessment of the statements of the party leader in order to establish with sufficient certainty if Bashara sup-ported the armed struggle of a terrorist organisation. The majority of the Court was unconvinced by the evidence presented and therefore declined to refuse the right to participate in elections. However, some commentators observe that the Supreme Court of Israel deliberately did not allow for the new amendments to be applied in this case and that the Bishara judgment appears to be a compromise solution to the dilemma of how far democracy can go in protecting itself without exceeding the limits of democratic toler-ance: the Supreme Court of Israel declared that it is ‘preferable for undemo-cratic pressures to find their expression within the legitimate framework of the democracy, and not externally’.55

In its interpretation of the disqualification procedure, the Supreme Court of Israel adopted quite a restrictive view on the grounds and reasons for banning political parties from the forthcoming elections and to accord as many guarantees and freedoms to political parties as is desirable in a true democracy. As one commentator points out, a restrictive approach could be considered evident in a few elements that emerge in the Neiman II judg-ment of 198856 and employed by the Court in all subsequent judgments on disqualifying lists and parties.57 First, the grounds for disqualification can be derived only from a party’s central and dominant aims. Second, these aims must be evident from direct statements as well as from implicit but unequi-vocal inferences. Third, theoretical aims are not enough, and it must be proved that a listed party intends to take actions to achieve its aims. More-over, this activity must be sustained and consistent and must demonstrate high and extreme levels of intensity. Finally, the evidence of disqualifying aims must be ‘pervasive, clear, and unequivocal’.58

Nevertheless, the Israeli example is an interesting variation of militant democracy in practice. The Yeredor decision of the Israel Supreme Court declared self- defensive democracy as a supra- constitutional principle that is implied from the very essence of the extant democratic system. Later, Israel developed further institutional arrangements in response to the activities of political parties challenging the existence of Israel as a Jewish and demo-cratic state, as well as relying on violence to advance political agendas. Such measures can have far- reaching implications for political parties and their


candidates. Nevertheless, while the disqualification of lists and parties denies the possibility of participating in elections, it is only a temporary measure and does not amount to complete exclusion of political groups from politics. Such a system leaves political parties with a chance to compete for voters’ support in the future if the party simply adjusts its policies and agendas so they comply with legislative requirements. The decision to ban a party from the Knesset elections might signal to the party and its leaders that its prac-tices, speeches, and agendas run contrary to the rules of the political game and cannot be tolerated to an unlimited extent. So, at least in theory, a ban on running for elections appears to be a far less drastic measure than the dis-solution of an entire political party. Nevertheless, the Israeli case study demonstrates yet again that it is hardly possible to locate an ideal version of militant democracy in relation to the activities of allegedly undemocratic political parties. The mission of protecting democracy against its potential enemies without compromising the state’s democratic nature is never an easy task. However, it is crucial to keep in mind the importance of political parties in modern democracies and the importance of political speech in general. Therefore, every time a state seeks to impose such a drastic limita-tion on political parties as dissolution, less restrictive measures and softer solutions should always be encouraged. To sum up, the Indian and Israeli case studies demonstrate that some democracies consciously refrain from utilising procedures to dissolve polit-ical parties as a tool to protect democracy from harm by extremist political parties. These jurisdictions found their own alternative solutions that were well- tailored to their local circumstances. Examples from India and Israel represent a valuable contribution to the debate on militant democracy, its legitimacy, and its limits. Despite some complexities, the Indian solution to the regulation of political parties’ activities can be considered as a useful response to the threat of allegedly dangerous political movements without resorting to the prohibition of political parties. Meanwhile, the example of Israel demonstrates the possibility of finding alternatives to party dissolution procedures that allow political parties to retain their status and ultimately regain the opportunity to participate in future elections (subject to certain conditions). However, these case studies should not be interpreted as an appeal to national governments to dispense with legislative provisions allow-ing for the prohibition of political parties, but rather to appreciate the use-fulness of comparing different approaches and to use these particular models as reference points for solving similar problems in their home jurisdictions.

Notes

1 Both jurisdictions have various other rules regulating activities of political parties but I will consider only measures of militant democracy character. For details on party regulation in Israel see, for example, Suzi Navot, Constitutional Law of Israel (Kluwer Law International 2007), 87–90.


2 Constitutional provisions on states of emergency is one of the fascinating areas of constitutional law of India. See, for example, Shivraj B Nakade, Emergency in Indian Constitution (Cosmo Publications 1990). The active presence of ethnic political parties and their role in democracy is another interesting area to explore. See Kanchan Chandra, ‘Ethnic Parties and Democratic Stability’ (2005) 3 Per-spective on Politics 2; for details on the Indian notion of secularism, see Gary Jeffrey Jacobson, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton University Press 2005).

3 Jacobson above n 2, 129. 4 See, for example, Stuart Corbridge, ‘The Militarization of all Hindudom? The

Bharatyia Janata Party, the Bomb, and the Political Spaces of Hindu National-ism’ (1999) 28(2) Economy and Society, 222.

5 Barbara D Metcalf and Thomas R Metcalf, A Concise History of India (Cambridge University Press 2002), 279.

6 Article 19(1) of the Constitution of India: ‘All citizens shall have the right – (a) to freedom of speech and expression.’

7 The Representation of the People Act, No. 43 of 1951; India AIR Manual (1989), v. 41.

8 Ibid. section 125. 9 Ibid. section 123.10 Ibid. section 123(3).11 Ibid. section 8A.12 Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harvard Law Review,

1423–9.13 Prabhoo v. Kunte, AIR 1996 SC 1113.14 Issacharoff above n 12, 1425.15 Larissa MacFarquhar, The Strongman: Where is Hindu- Nationalistic Violence

Leading?, www.byliner.com/read/larissa- macfarquhar/the- strongman, as cited in Issacharoff above n 12, 1423.

16 Prabhoo v. Kunte above n 13, 1118–19.17 Ibid.18 Issacharoff above n 12, 1425.19 Ibid.20 Issacharoff above n 12, 1426.21 Prabhoo v. Kunte above n 13, 1124.22 Issacharoff above n 12, 1427.23 Ibid.24 Party’s official web page: www.bjp.org.25 Benyamin Neuberger, ‘Israel’, in Markus Thiel (ed.), The ‘Militant Democracy’

Principle in Modern Democracies (Ashgate 2009), 188.26 Suzie Navot, ‘Fighting Terrorism in the Political Arena. The Banning of Polit-

ical Parties’ (2008) 14(6) Party Politics, 745.27 Knesset Elections Law 1959, 13 LSI (1959) 121, sections 18–23.28 Knesset Elections Law 1959 (above n 27) is the legislative act that defined powers

of the Central Elections Committee.29 Yvonne Schmidt, Foundations of Civil and Political Rights in Israel and the Occupied

Territories (Grin Verlag 2008), 271.30 Ibid. 270.31 Ibid.


32 Official web page of the Central Elections committee: www.knesset.gov.il/ elections17/eng/cec/CecAboutGeneral_eng.htm, accessed 30 June 2014.

33 For details on the list and candidates included in it, see Schmidt above n 29, 271.34 EA 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset

19 (3) PD (3) 365 (1965).35 For the facts of the case and detailed analysis of this decision, see Schmidt above

n 29, 271–3.36 Ibid.37 Ibid.38 Ibid.39 Navot above n 26, 748.40 For details on the Israeli experience dealing with the Kahanists, see also Neu-

berger above n 25, 191–6.41 See, for example, Issacharoff above n 12, 1447.42 EA 3/84 Neiann v. Chairman of the Central Elections Committee for the Eleventh

Knesset 39 PD (2) 225 (1985).43 Mordechai Kremnitzer, ‘Disqualifying of Lists and Parties: the Israeli Case’, in

András Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 158.

44 Navot above n 26, 748.45 Frances Raday, ‘Self- Determination and Minority Rights’ (2002) 26(3) Fordham

International Law Journal, 494.46 Amendment n 9. Passed by the Knesset on the 13th Av, 5745 (31 July 1985) and

published in Sefer Ha- Chukkim No. 1155 of the 20th Av, 5745 (7 August 1985), p. 196; the Bill and an Explanatory Note were published in Hatza’ot Chok No. 1728 of 5745, 193, available at www.jewishvirtuallibrary.org/jsource/Politics/Basic_Law_Knesset.html, accessed 30 June 2014.

47 EA 1/88 Neiman v. Chairman of the Central Elections Committee for the Twelfth Knesset 42 PD (4) 177 (1988) (Neiman II); EA 2858/92. Movshoviz v. Chairman of the Central Elections Committee for the Thirteenth Knesset 46 PD (3) 541 (1992).

48 On this and other legislation related to elections, see the official web page of the Central Elections Committee at www.knesset.gov.il/elections17/eng/law/Law-sSummary_eng.htm, accessed 30 June 2014.

49 Navot above n 26, 749.50 One of the most troubling aspects of political parties’ activities can be exempli-

fied by the Balad (Democratic National Assembly) party, first elected to the Knesset in 1996. The party leader’s statement expressing support for terrorist acts against Israeli citizens provoked the adoption of serious restrictions on freedom of expression and association. For details, see Navot above n 26, 750–1.

51 Section 7(a) reads as follows in the amended version:

A list of candidates will not take part in the elections to the Knesset nor shall an individual person be a candidate for the Knesset if the goals or deeds of the list or the deeds of the person explicitly or implicitly are one of the following: 1. Reject the existence of the State of Israel as a Jewish and democratic state; 2. Incite to racism; 3. Support the armed struggle of an enemy state or terrorist organisation against the State of Israel. A decision of the Central Elections Committee preventing a candidate’s participation in the elections is subject to approval by the Supreme Court.


52 Kremnitzer above n 43, 165.53 Issacharoff above n 12, 1449.54 For details on the case, see Navot above n 26, 751–4.55 Navot above n 26, 751.56 Neiman v. Chairman of Central Elections Committee for the Twelfth Knesset above

n 47.57 Kremnitzer above n 43, 168–70.58 Ibid.

Part III

Militant democracy as applied to counter- terrorism

7 The banning of political parties as a response to terrorism in Spain

Since the very beginning of the democratic regime, established in 1978, Spain has experienced political violence within its borders and therefore represents a valuable case study of a democratic nation’s response to ter-rorism. The primary focus of this chapter is the 2002 Law on Political Parties (Ley Organica de Partidos Politicos), which constitutes part of Spain’s anti- terrorism regime and which explicitly incorporates in its text a very tra-ditional militant democracy measure: the dissolution of political parties. Once adopted, the Spanish government did not wait long before seeking to apply the new law. The Basque separatist political party Batasuna was banned in 2003 for having links with, and supporting, ETA,1 one of the most active terrorist organisations in Spain. The application of the law to outlaw Batasuna was scrutinised at three separate judicial levels domesti-cally, as well as by the European Court of Human Rights. Despite some sub-stantive criticisms over the juridical quality of the law and its potentially troubling implications for Spain’s constitutional system, all four judgments declared the law as applied to be compatible with the Spanish Constitution and Spain’s international human rights obligations. This chapter begins by outlining Spain’s constitutional environment, including during the Franco era, and the process of transition to democracy. The summary demonstrates the severity of the political violence issue and contextualises the 2002 Law on Political Parties within the constitutional order established in 1978. It also reflects on the history of terrorism in Spain and offers an overview of Spain’s anti- terrorism regime. A comprehensive overview of Franco’s Spain, and of Spain’s current anti- terrorism regime, provides important background information which helps identify and track the changes brought upon the constitutional system by introducing militant democracy (with the enact-ment of the 2002 Law on Political Parties) and its application to outlaw Batasuna in 2003.

126 Militant democracy and counter-terrorism

7.1 The history of political violence and terrorism in Spain and its transition to democracy

The prevalence of political violence and terrorism in Spain has historically been deeply rooted in its political and legal environment, established after the 1936–1939 Civil War when Franco assumed power. The brutal war and deep division of the country into Republicans and Nationalists resulted in more than half a million causalities (mostly on the Republican side)2 as well as the collapse of Spain’s economy and infrastructure.3 By the end of the war, ‘Spain resembled a country occupied by a victorious foreign army’.4 General Franco joined the Nationalist rebellion in July 1936 and was later appointed as commander- in-chief and head of the Nationalist state. At the end of the war, Franco continued on to command as Caudillo.5,6 Franco was never elected, nor was he vested with the power to govern the state by its citizens. Instead he was chosen by the generals from the rebel Nationalist forces.7 After Franco was proclaimed chief of the state of Nationalist Spain he was endowed with the power to establish, consolidate, and develop the new state.8 By April 1937, Franco was commander- in-chief of the armed forces, head of state, head of government, and head of the only political party.9 In January 1938, Franco also gained nearly unlimited powers to legislate by decree.10 Franco’s regime was based on the explicit rejection of all the tradi-tional attributes of democracy, such as free elections, political pluralism, and free speech.11 As a dictator, he was the ultimate ruler of the state and the only source of political authority. Officially it was a single- party authorit-arian state, but some commentators observe that it was rather a no- party one.12 The antidemocratic nature of Franco’s regime was not contested outside Spain and the international community had no difficulty in labelling the Spanish system of government as fascist and imposed on the nation by force.13

Another aspect of Franco’s policy was the treatment of various ethnic groups residing within the territory of Spain. During the Franquist era, the state was rigidly centralised.14 Franco’s concerns about potential regional and ethnic separatist movements, especially in the Basque, Catalan, and Galician regions, led to the persistent suppression of any expression of ethnic identity through stringent measures, such as prohibiting the use of any native lan-guage apart from Spanish, even in private.15 During the Franco era, national-ist sentiments were severely repressed, and any ethnic autonomy was abolished.16 For example, Basques were silenced as a political unit of the state and as a unique ethnic group (as punishment for their opposition during the Spanish Civil War).17 Franco’s regime destroyed the Basque system of self- governance and ‘any visible elements of the unique, centuries- old Basque culture’.18 The regime was a reflection of an exclusivist and intol-erant version of Spanish nationalism.19 It was perhaps unsurprising that such a policy provoked some groups to resort to violence in order to protect their ethnic interests. The problems created by the use of violence as a tool to

The banning of political parties in Spain 127

protect national minorities’ interests persisted long after the end of Franco’s regime, with his death in 1975. During the transitional years, Spain experi-enced violent acts committed by various extreme terrorist organisations.20 Franco’s death in 1975 was universally accepted and interpreted as ‘the close of [one] chapter, and the beginning of a new one’.21 This was indeed the case, with Spain embarking on a gradual transition to democracy, with no previous experience of stable democratic government, yet with great hopes to establish democracy and peace in the nation. The relatively recent Spanish transition from an authoritarian regime to democracy is often characterised as unique and phenomenal for political, historical, and cultural reasons.22 Until the establishment of the constitu-tional monarchy in 1978, Spain had never experienced a stable democratic regime, as all previous attempts to establish and preserve democracy had simply failed.23 A lack of democratic traditions, however, did not prevent Spain from opening the third wave of democratisation in Europe.24 More-over, Spain’s transition to democracy has often been featured as ‘a model example of how to move from an authoritarian to a liberal, pluralist polity’.25 After Franco’s death, Spain turned its attention to the task of establishing democracy. It did so ‘through a remarkably quiescent process of reform’ and a ‘strategy of consensus’.26 In June 1977, the first democratic elections took place and in 1978 the new Spanish Constitution was adopted with a clear intention to cure as many of the mistakes and shortcomings of the previous political and legal regime as possible. All major and minor political parties and groups that competed for parliamentary seats in the 1977 elections built their programmes and activities around symbols of democracy, even the Communist Party, which adopted the slogan ‘to vote Communists is to vote democracy’.27 The entire transition process was built around an authoritarian-ism v democracy dichotomy. All ideologies and groups accepted that it would only be possible to avoid another civil war and successfully complete the transition to a democratic regime through dialogue and compromise. Demo-cracy in Spain was achieved very quickly and at relatively low cost to society (that is, without internal armed conflicts).28

Another distinguishing feature of Spain’s transition to democracy was its surprising reluctance ‘to let go of its authoritarian past’.29 This unwilling-ness to declare legal, formal, or at least symbolic discontinuation with the political and ideological roots of the previous regime is in contrast to other post- fascist30 and post- communism European states. In the early years of transition, Spanish society engaged in a form of ‘collective amnesia’ with regard to the past.31 The experiences, fears, and frustration of the Civil War of 1936–1939 and Franco’s dictatorship were ‘forgotten or at least silenced’.32 In light of the tragic events Spain experienced both before and during the Franco regime, it is somewhat surprising that it did not incorp-orate any elements of militant democracy into its constitution to prevent a repeat of history. Taking into account its ‘dark’ and tragic past and the con-stitutional experiences of its European neighbours, Spain could easily have


opted to rely not only on the emotionally charged endeavours of forgetting and forgiveness, but also on legal means to prevent the previous regime from harming the fragile nascent democracy. The most probable explanation for this phenomenon was the widespread desire to complete the transition towards democracy using dialogue, com-promise, and consensus. Democracy in Spain was perceived as too fragile to introduce measures imposing limitations on political opinions and, in addi-tion, none of the existing ideologies were considered to be worse than Fran-quism. Moreover, in contrast to Germany, Franco was not elected by the people through democratic elections.33 Spain’s dictatorship was imposed without any involvement of democratic processes or Spanish citizens, unlike in Germany where democratic privileges were abused to impose a totalitar-ian regime. The German Basic Law was a reaction to the failure of the Weimar Republic and was drafted with the purpose of remedying those mis-takes. As Spain’s experience differed from this, the possibility of imposing content- based restrictions on political participation and ideologies was not considered necessary by the post- Franco state. Spain exemplifies how a desire to achieve democracy resulted in the widest possible political tolerance during its transition. The absence of any ideological limits on political parti-cipation became an important constitutional principle and was practised in Spain for many years. It was a direct reaction to nearly 40 years of dictator-ship, and it is why the 2002 Law on Political Parties, which introduced the procedure for dissolving political parties, can be considered an important modification of the Spanish constitutional landscape.

7.2 Political extremism and counter- terrorism policies in pre- 2002 Spain

Unfortunately, the transition to democracy in Spain was not entirely peace-ful. Problems regarding regional autonomy and independence re- emerged at the beginning of the transition. The inability of the new government to achieve a satisfactory agreement over issues with the Basque, Catalonian, and Galician regions contributed significantly to the presence of political viol-ence and terrorism. The Basque Country’s continuing fight for its independ-ence was an unfortunate exception to the process of transition based on dialogue and consensus. Nationalist parties in the Basque region exhorted voters to boycott the constitutional referendum of 1978, leading to 54.5 per cent of the Basque electorate abstaining from voting.34 One of the Basque nationalist organisations – ETA – posed a serious challenge to the Spanish political system and constituted one of the most troubling political and legal issues for transitional Spain.35 From its inception, ETA had extreme and radical views on the issue of Basque independence and widely employed viol-ence and criminal activities to advance its goals. ETA’s major objective was, and remains, independence for, and reunification of, the Basque state.36 From its establishment, ETA believed that violence would be ‘the only way to be


heard by Franco’,37 whose regime was indifferent to regional and ethnic iden-tity issues. A result of this was that autonomous governments existed in exile.38 Originally, ETA’s violent attacks mainly targeted the symbols and personnel of the Franco regime (for example, it was ETA that assassinated Franco’s Prime Minister in 1973),39 as well as high officials of key state insti-tutions, such as the police, military, and civil service. Shortly after Franco’s death, ETA garnered the sympathies of many anti- Franquists: young ETA militants began to be seen as heroic fighters against oppression and injustice, especially in light of the famous Burgos trial.40 However, not many ‘would have predicted ETA’s dramatic escalation of terrorism against the nascent democracy’.41

ETA has presented an ‘unresolved challenge for the system’42 for many years.43 The Basque nationalist movement is alleged to have had ties with the political party Herri Batasuna. In the absence of any specific constitu-tional or legislative provisions to dissolve political parties by non- criminal means, the Spanish government appeared hesitant to employ criminal pro-secutions against the party as such a move could seriously impair the estab-lished system of political pluralism.44 The Batasuna Party was supported by a minority of the Basque population (in the 2002 elections it gained 10–12 per cent of popular support and had 7 out of 75 seats in the regional parlia-ment). In its speeches, it often defended and sought to explain the terrorist practices of ETA. Moreover, there is some evidence that Batasuna and ETA have shared structures and information.45

The establishment of a democratic regime in Spain in 1978 marked a new stage in the Basque regional conflict. The rift between Basque nationalists and the rest of Spain became evident in December 1978, when the Constitu-tion was subjected to a popular referendum: only 31 per cent of the Basque electorate supported the constitution (in contrast to 59 per cent of the total Spanish electorate), with a 55 per cent rate of abstention.46 Basque parties refused to support the Constitution mainly due to the fact that it failed to recognise historic rights of Euskadi – the home region of the Basques.47 The post- Franco government granted a considerable degree of autonomy and self- government to the region in 197948 and since 1980 it has been even gov-erned by the Partido Nacionalista Vasco (Basque Nationalist Party or PNV).49 However, ETA rejected autonomy within the Spanish state and insisted on total independence for Euskadi as the ultimate goal.50 It was not willing to take part in local coalition governments and continued to resort to violence, causing an increasing number of casualties during the early years of democracy.51 ETA targeted prominent military figures, and often carried out assassinations on symbolic Basque dates.52 Since ETA launched its armed struggle for Basque independence in 1968, it is claimed to have committed 3,391 acts of terrorism, killed 836 people, and injured 2,367 (1,294 of whom were rendered physically incapacitated).53

The activities of ETA and other extremist groups provoked an inevitable reaction from the newly established democratic government, a reaction


readily discernible in its early legislation. The 1978 Constitution of Spain allows for the suspension of some constitutional rights of individuals in the context of the investigation of terrorism (Article 55.2),54 a provision described by some commentators as an unusual, if not unique, solution.55 In the absence of legislation devoted solely to anti- terrorism matters (like in the US, UK, Australia, and many other jurisdictions), Spain’s criminal law remains the centrepiece of its anti- terrorism regime.56 The Criminal Code defines crimes of terrorism,57 and in 2006 Spain was reported to be one of only six countries in Europe that specifically defined terrorism as an offence.58 Further, the Code of Criminal Procedure grants specific powers to law enforcement agencies and the judiciary with respect to investigations into terrorism offences, such as the use of extended periods of detention in police custody before bringing the suspect before a judge and the use of incommu-nicado detention.59 In addition, Spain has also participated in international cooperative efforts against terrorism, both prior to and since the September 11 terrorist attacks. In the mid- 1980s Spain started to cooperate actively with neighbouring France, where ETA members had previously sought political asylum (as an anti- Franco and, therefore, anti- government political group). In 1984 Spain and France signed an agreement on anti- terrorism police cooperation.60 Spain actively supported the post- September 11 UN Security Council resolutions (1373 and 1456) and has tightened some of its domestic terrorism- related criminal law and criminal procedure rules. For example, it has adopted tougher sentencing for terrorism- related crimes and a stricter distinction between ordinary criminal justice cases and terrorist cases, has altered conditions of detention, and has passed a law making the Batasuna Party illegal, which is the development of most interest to this chapter. Any review of Spain’s response to terrorism would be incomplete without mention of the Anti- Terrorist Liberation Groups (Grupos Antiterroriastas de Liberacion [‘GAL’]), a paramilitary organisation used by the government to fight ETA. Alongside its overtly constitutional measures, Spain has also resorted to extra- constitutional and extra- legal measures to combat ter-rorism.61 The existence of a ‘dirty war’ was the most alarming aspect of Spain’s counter- terrorism strategy, but also a very embarrassing one for a state that considered itself a democracy. GAL was financed by the state and protected by the Ministry of Interior.62 The group was active until 1987. It carried out its activities in the Basque Country, which consisted mainly of kidnapping, torture, and financial crimes. It is said to be responsible for 23 murders, with many more people threatened and intimidated. While Spain was trying to build a new democratic regime and to restore the values and liberties that were denied during Franco’s years, it therefore compromised itself by applying some rather controversial anti- terrorism measures. Terrorism in Spain has mainly been used to advance political causes and has been primarily directed against the existing constitutional order and system of government. Therefore, it is somewhat surprising that Spain chose


not to adopt measures to prevent the emergence of political organisations supported by or having links with terrorists, outside the measures available in the criminal law. On the contrary, transitional democracy in Spain was built so as not to impose any limitations on political expression, and the issue of the potential development and activities of antidemocratic political groups was overlooked or most probably intentionally neglected in trans-itional Spain. This procedure was not applied at any time between 1978 and 2002.63

7.3 The introduction of militant democracy: reasons, challenges, and concerns

As mentioned above, the Spanish Constitution of 1978 granted a consider-able degree of freedom of political expression. No political ideology was excluded from the democracy- building process following the defeat of Fran-co’s regime. Nevertheless, the Constitution of Spain and the subsequent legislation contained several provisions devoted to the activities of political parties. Thus Article 22 guarantees freedom of association, including an implied freedom to form political parties, and Article 6 requires political parties to act in observance of the constitution and to maintain a democratic internal structure.64 Similar provisions were contained in the 1978 Law on Political Parties.65 Therefore, the rights and privileges of political parties were never absolute; however, no limits were imposed on these political actors in terms of their ideologies or the political programmes they wished to promote. Further, the 1978 Law on Political Parties provided a general power to dissolve parties, but only where its activities satisfy the definition of a ‘criminal association’ under the Criminal Code,66 and when the organisa-tion and activities of the party disregard democratic principles. However, the procedure to outlaw a political party under the 1978 Law was never once applied.67

Despite the fact that the privileges of political parties were subject to some limitations, this was not enough to address the challenge posed to democracy by Batasuna and its connections with the terrorist organisation ETA.68 The existing constitutional model was ineffective because the crimi-The existing constitutional model was ineffective because the crimi-nal law provisions alone could not address the threat of political parties that had dangerous political agendas, unless its members committed a crime. In this respect, there were no preventive means to cease the activities of undem-ocratic parties. The model of proscribing organisations (including political parties) through the criminal law relies upon the individual guilt of its members. It can, therefore, only be applied retroactively – after the criminal character of party members’ activities are established in a court procedure involving the highest standards of proof. This appeared to present too high a bar for the Spanish government to comply with, and so the enactment of the new law aimed to overcome this problem. It introduced the possibility of banning allegedly dangerous and undemocratic political parties without the


need to wait for criminal law provisions to be applied. Spain’s 2002 Law on Political Parties represents an example of militant democracy as applied to fight political terrorism. The new Law on Political Parties was passed in June 2002. While the law was not defined as an anti- terrorism measure, its content leaves little doubt that it constitutes part of the Spanish anti- terrorism arsenal. The enactment of this law was the result of a political agreement between the governing party and the main opposition party69 to introduce legal changes to address all possible forms of activities providing any type of support for terrorism. The most important innovations in the regime regulating political parties’ activities are found in Articles 6–9 of the Law.70 However, Article 9 is of the most significance as it introduced the procedure to declare a party illegal irrespective of whether it had been declared a criminal organisation. Article 9(2) allows for the dissolution of a political party in the following terms:

A political party shall be outlawed when its activity violates the demo-cratic principles, in particular, when through its activity it seeks to deteriorate or destroy the system of liberties, or make impossible the democratic system, or eliminate it, through any of the following conduct, if they are realized in a reiterated and grave manner. Prohibited activities of political parties: a) violating fundamental rights by promoting, justifying, or excusing attacks on the life or dignity of the person or the exclusion or persecution of an individual by reason of ideology, religion, beliefs, nationality, race, sex, or sexual orientation; (b) encouraging or enabling violence to be used as a means to achieve political ends or as a means to undermine the conditions that make political pluralism possible; and c) assisting and giving political support to terrorist organizations with the aim of subverting the constitutional order.71

Further, Article 9(3) defines the types of behaviour capable of enlivening the procedure to dissolve a political party.72 While at first sight it might appear that a law which targets political parties that seek to destroy or harm the system of democratic government is a legitimate legislative measure, this becomes less convincing in light of the activities described by the law as illegal. Some of the conduct prohibited by law is relatively uncontroversial;73 however, some other prohibitions can be subjected to extensive criticism. For example, a political party can be banned if it promotes, justifies, or excuses attacks on the life or dignity of citizens, or if its activities result in the exclusion or persecution of an individual by reason of ideology, religion, beliefs, nationality, race, sex, or sexual orientation. This provision has led some commentators to conclude that a political party that advocates for laws that criminalise homosexual behaviour (which might be the case for a polit-ical movement supported and/or inspired by conservative religious views) could be outlawed under the new law.74


One of the most controversial provisions in the new law is the prohibition of ‘tacit support to terrorism’75 and ‘legitimising violence as a method to achieve political ends’76 without any specification of either the geographical limits to the law or the ends that are to be achieved through violence. For example, a political party that expresses its support for a foreign political movement that is engaged in fighting against a dictatorial regime could provoke the application of the law in question. It appears from the language of the provisions that the legislature intended to mask the anti- terrorism nature of the law by attempting to demonstrate that it would be equally applicable to all allegedly dangerous political parties, as well as to Batasuna. However, the broad language of the law might allow it to capture much more than the prohibition of Batasuna and similar parties. The law might pose a significant threat for the activities of all political parties in the future if the statute is applied strictly. The Spanish government found it hard to outlaw Batasuna through exist-ing criminal law procedures as Batasuna did not commit terrorist acts itself, but only was alleged to have links with the terrorist group ETA and share with it structures and information.77 Article 515 of the Penal Code defines a criminal association, and it allows for it be dissolved by the court under Article 520.78 To initiate this procedure, it would be necessary to prove that Batasuna had a close connection with ETA and that it was engaged in crimi-nal cooperation amounting to the use of criminal means to achieve its polit-ical programme. Instead, the Spanish authorities sought an alternative option. Legislators came up with the idea of creating an intermediate regime between criminal illegality and legality.79 Under the new law, if a political party is declared illegal, this does not affect individuals, but rather only the party itself. The party is dissolved and its assets are appropriated by the state. This was perceived to be a preferable approach to the procedure of declaring a party a criminal organisation, which would impose severe crimi-nal penalties on individual party members, yet leave the political party intact. Within a few weeks of the enactment of the 2002 Law on Political Parties, the lower house of the Spanish parliament approved the motion to require the government to bring action against Batasuna for its violation of the new law. The motion was prompted by Batasuna’s refusal to condemn ETA’s attack in Santa Pola on 4 August 2002, in which a car bomb exploded, killing two bystanders. In September of the same year, a case was brought to the Special Chamber (Sala Especial) of the Supreme Court, which was assigned the power to dissolve political parties under the recently enacted statute. While the case was pending before the Sala Especial, the Basque regional government availed itself of the procedure to bring a com-plaint to the Constitutional Court challenging the constitutionality of the law. The Basque Autonomous Government claimed that the law introduced a new model of democracy not anticipated by the Constitution. It also claimed that the new regime for political parties contradicted the model


promoted by the 1978 Constitution, as political parties were now limited not only in their activities, but also in their political platform and ideolo-gies.80 Furthermore, it was claimed that the new law violated the freedom of political participation and the principle of political pluralism, and that the measure allowing for the dissolution of a political party was disproportionate to the aim pursued. In March 2003, the Constitutional Court unanimously upheld the validity of the statute. It rejected the idea that the Spanish con-stitutional system had transformed into a self- protective democracy and declared that the law did not impose limits on parties’ programmes, but rather only their activities.81 In addition, it declared that the new law did not impose any sanctions on political parties and that its relaxed procedural standards (as compared to those contained in the criminal procedures) were acceptable.82

The case to dissolve Batasuna before the Supreme Court was based on 23 charges, most of them related to the party’s reaction to ETA’s terrorist act of August 2002 in Santa Pola. Batasuna was mainly accused of tacit support of terrorism (evidenced by its refusal to condemn the terrorist attacks).83 Charges related to the events of August 2002 occurred after the enactment of the law, but it was obvious, nonetheless, that it was intended for Batasuna to be banned for its past activities.84 The Supreme Court unanimously declared Batasuna illegal.85 The Court held that the party indeed had close links with ETA, shared substantially the same ideology, and was closely con-trolled by that terrorist organisation. The Supreme Court made reference to past criminal convictions of some of the party’s members for terrorism- related crimes as well as the speeches of its leaders and members, but mainly focused on the party leaders’ refusal to condemn the attack in Santa Pola in 2002. The Court reinforced its decision to ban Batasuna by declaring that it was acceptable to take into account the past activities of the party to better assist an assessment of its current and future activities. The Supreme Court concluded that Batasuna’s activities amounted to assisting and giving polit-ical support to a terrorist organisation with the aim of subverting the con-stitutional order, which is illegal by virtue of Article 9.2(c) of the Law on Political Parties. The decision of the Supreme Court was challenged by the Batasuna Party before the Constitutional Court on the grounds that it amounted to a viola-tion of its right to a fair trial and to freedom of expression, thoughts, and association as well as to the presumption of innocence. In addition, the impartiality of one of the judges of the Supreme Court was challenged, on the grounds that he had been involved in the report on the preliminary approval of the 2002 Law on Political Parties.86 The Constitutional Court dismissed the appeal by unanimous judgment on 16 January 2004.87 There-fore, the 2002 Law on Political Parties and its immediate application to ban Batasuna survived three separate court hearings at the national level. In addi-tion, Batasuna challenged the law and its application in the European Court of Human Rights. The November 2009 judgment of the Court declared that


there was no violation of Articles 10 and 11 of the Convention guaranteeing freedom of speech and association, respectively.88 The European Court noted in its judgment that the Spanish Supreme Court had not confined itself only to the lack of condemnation of terrorist attacks by ETA, but had also pre-sented an extensive list of behaviours sufficient to conclude that Batasuna was a political instrument of the terrorist strategy of ETA. The ECHR accepted the domestic court’s conclusion that the acts and speeches of the party leaders and members might cause hostilities within Spanish society and could possibly lead to violent movements. The European Court con-cluded that the actions of Batasuna ‘must be analysed in their entirety as part of the strategy to carry out its political project which is in its essence contrary to the democratic principles enshrined in the Spanish Constitu-tion’.89 The Strasbourg Court also concluded that, although the prohibition of Batasuna was not based exclusively on its silence about the terrorist acts, it would not have been contrary to the Convention if the prohibition had been on that basis alone. The reason for this statement was the Court’s belief that the behaviour of politicians includes not only their actions and speeches, but also their omissions or silence, which might amount to a political posi-tion and opinion on a particular matter and could be equivalent to explicit support of a particular activity. Elsewhere in its judgment the Strasbourg Court revisited its earlier findings from similar cases90 and reaffirmed that states do not need to wait until a political party begins to implement its dangerous agenda. Despite the established principle that political parties are important elements of the democratic system and they can campaign for changes of legislation and constitutional structures, their actions neverthe-less ought to be scrutinised well before they secure a democratic majority.

7.4 Militant democracy and terrorism in Spain: lessons learnt

The Spanish example clearly demonstrates how militant democracy has a place in the counter- terrorism policies of contemporary democracies. Such policies these days extend far beyond the well- known issues of detention of terrorist suspects, increasing sentences for terrorism- related crimes, and listing terrorist organisations. Depending on local circumstances, some gov-ernments might go further and decide to impose limits on rights of political participation, including the right to form a political party, and to participate in and support it via electoral activities. This is exactly where militant democracy and its preventive techniques could be useful to assist in keeping a nation’s response to terrorism within the boundaries of constitutional nor-malcy. However, despite the wide consensus on the necessity to eliminate political terrorism, Spain’s legislative initiative provoked active debate and criticism among scholars and politicians.91

Some degree of criticism is rather common for militant democracy measures in general, while others have been unique to Spain and its move to


dissolve Batasuna. As was discussed in Chapter 3, proscription of political parties is by no means a novelty invented by the Spanish legislature. Never-theless, the procedure to outlaw political parties is always a highly contested legal measure. Any law which gives a power to a majority party to initiate or seek the dissolution of another political party inevitably makes that pro-cedure an undesirable practice, as it disturbs the natural flow of political competition and interferes with the marketplace of ideas. Further, in the event that a particular political party is banned, the government must deal with the issue of a newly disenfranchised segment of the electorate. For example, in the case of Batasuna, the percentage of votes in the regional elec-tions of 1999 was 27.49 per cent in the province of Guipuzcoa, 16.24 per cent in Vizcaya, and 13.91 per cent in Alava.92 Moreover, it is often argued that banning radical groups ‘has never been an efficient method of reducing or ending terrorist violence’.93 Banning the expression of ideas could cause those ideas to grow in the shadows, outside public and governmental control. In those circumstances, it may become even more difficult to nego-tiate with terrorists. On the contrary, the example of Ireland demonstrates that negotiating with terrorist groups can be beneficial for the peace restora-tion process.94 Thus there were serious fears and predictions anticipating the ban being counterproductive and sparking more violence and aggression.95

Furthermore, the Spanish government attempted to portray the law as filling a gap in the existing legislative regime: to set up democratic stand-ards for political parties and protect citizens from political groups promot-ing racism and violence and praising terrorism.96 However, there is little doubt that the provisions of the law were specifically drafted with the spe-cific intention of subduing Batasuna.97 As a result, the law bears the unfor-tunate image of a legislative Act specifically targeting a particular party. It is difficult to contest that a law directed against a particular political party is an undesirable practice for democracy. The fact that the law was adopted 25 years after the country started its transition to democracy legitimately raises expectations about the quality of the law and the carefulness of its judicial interpretation. Batasuna’s legal advisors argued that the law in question was ‘a single case law’ specifically designed against one party.98 For this reason, the overall impression given by the 2002 law and its immediate application to Batasuna was that the Spanish government was seeking the easiest way to remove a particular political player and, in so doing, forgot the meaning and importance of political freedoms for the modern Spanish democracy. This criticism, however, should not be interpreted as suggesting that Spain should have carried on providing a public forum for all political parties irrespective of their alleged links with terrorism or support for ter-rorist activities. However, measures such as those as introduced in 2002 could have been brought in a less controversial manner. In addition to appearing to single out a particular political party, the law was drafted using very ambiguous language; some of its definitions are unclear in meaning and in their possible implications. The broad language is an unfortunate


attribute of many contemporary counter- terrorism laws worldwide, but in the case of Spain it differs from the previous experience of anti- terrorism legislation reviewed by the courts. For example, in 1999 the Spanish Con-stitutional Court repealed the convictions of Batasuna Party members for collaboration with a terrorist organisation.99 The reason given for revoking the conviction was that ‘the punishment established for such transgressions by the Criminal Law of the time was disproportionate and not adjustable to the particular degree of involvement of each of the convicted’.100 It appears that Spain has committed itself to a considered application of counter- terrorism legislation; this much emerges from the constitutional jurispru-dence.101 In addition, the mere existence of a constitutional provision allowing for the limitation of certain rights for terrorist trials reinforces the impression of the Spanish constitutional system as being cautious about the potential abuse of anti- terrorism measures. The final argument for bringing some scepticism to the 2002 law relates to the role of the judiciary in the business of upholding the law’s constitu-tionality and interpretation. Every judicial decision on this law has sup-ported the government’s intention of conceding part of the privileges accorded to political parties as well as decreasing the standard of constitu-tional review of counter- terrorism measures. First of all, both Constitutional and Supreme Courts did not accept the argument (raised mainly by Batasuna Party representatives) that the Law on Political Parties 2002 brought any substantial changes to the constitutional order of Spain. Notably, the judi-ciary refuted the idea that the rule of political participation had changed and persistently denied that it was a step towards militant democracy. The idea of self- protective democracy is interpreted in Spain as incompatible with the established constitutional order. All state authorities involved in the judicial battle over this law utilised all possible means to distance the procedure to outlaw political parties from any associations with militant democracy. Moreover, in the decisions challenging the constitutionality of the law and the prohibition of Batasuna, the judiciary fully supported the government’s position and provided all possible assistance in explaining the true intention of the law, which was to outlaw Batasuna. Judicial authorities did not seem to be concerned about the serious and obvious flaws of the law, or the pos-sible undesirable consequences for the future in terms of its imprecise defini-tions. This behaviour seems strange to say the least, especially in light of its previously open- minded and liberal attitudes towards the state’s policies to subvert political terrorism. For example, when Batasuna was active and the frequency of ETA terrorist attacks was high, very few legal actions were taken against the party. Any actions that were taken were strictly supervised by the Constitutional Court. It is not easy to the answer the question of whether the Spanish govern-ment achieved its goals by banning ETA in 2003. For example, the period since the 2002 law came into force has been ‘one of the least violent on record’.102 The most recent parliamentary elections in Spain resulted in seven


seats being taken by Amaiur – a political party organised by former ETA supporters, the same organisation the Batasuna Party was accused of having connections with. Until recently, the 2002 law seemed capable of being a workable solution, but now Spain faces quite an awkward situation. A move-ment with the same political nationalistic agenda and supported by the same group as Batasuna occupies seats in the national parliament. However, the Prime Minister openly refuses to negotiate with them, despite their stated position of eschewing violence and terrorism. The government was once sure it had found an easy way to ban Batasuna from the 2003 elections, but a few years later it faces the same dilemma. However, this time it will be much harder to ban another party in the same manner as Batasuna. The case of Spain and its 2002 Law on Political Parties as it was applied to dissolve the political party Batasuna provides a valuable contribution to various aspects of the militant democracy debate. First of all, it clarifies the question of whether militant democracy is a symptom of young and trans-itional democracies only. Second, it demonstrates that the application of militant democracy, especially its traditional measures in relation to political parties, is always a highly politicised event and has to be applied with great caution. Further, it clearly indicates that the issue of disfranchisement is not a mere theoretical possibility but can happen where governments decide to proceed with the party dissolution. In addition, the 2002 Law on Political Parties is an example of how juridical quality and language of the law can heap further criticism on a piece of legislation even where there is a general consensus in society over the necessity and timeliness of such a law. It can also be argued that there were alternative means available to deal with a political party like Batasuna through criminal law provisions, which, despite not being easy, was a feasible solution. For various reasons, the government was unable (or unwilling) to work towards the initiation of a criminal pro-cedure. The avoidance of criminal law was justified by the prospect of serious consequences for individual members of a party declared to be a criminal organisation. However, it is not clear why the state should care about con-sequences for people committing crimes of terror or connected to it. I believe the government cannot claim legitimacy in attempting to enact a statute that merely makes it easier, faster, and more convenient to ban a political party. But the major lesson for the theory and practice of militant democracy from the Spanish story is that the 2002 Law on Political Parties and its immediate application to dissolve the Batasuna Party represents a clear example of extending militant democracy to a new type of threat – ter-rorism. Despite the resistance of the Spanish judiciary to accept the militant character of Spanish democracy, this particular case demonstrates the application of an ordinary militant democracy measure to a political party with an extreme political agenda that comprises a threat of terrorism.


Notes

1 The acronym ETA stands for Euskadi Ta Askatasuna, or Basque Fatherland and Liberty.

2 Omar G Encarnacion, Spanish Politics. Democracy After Dictatorship (1st edn, Polity 2008), 20.

3 Francisco J Romero Salvado, Twentieth- Century Spain. Politics And Society in Spain, 1898–1998 (Palgrave Macmillan 1999), 126.

4 Ibid. 5 ‘Caudillo’ usually refers to a political- military leader of an authoritarian state. 6 Jennifer S Holmes, Terrorism And Democracy: Stability Revisited (2nd edn, Man-

chester University Press 2008), 65. 7 Donald Share, ‘The Franquist Regime and the Dilemma of Succession’ (1986)

48 The Review of Politics 549, 555. 8 Ibid. 9 Arango Ergasto Ramon, Spain. Democracy Regained (1st edn, Westview Press

1995), 64. 10 European Commission for Democracy Through Law (the Venice Commission),

The Regulation of Political Parties in Spain (2009). 11 In 1938, strikes were forbidden by the Labour Charter; every publication in

Spain was subject to censorship; public meetings (except Catholic and state ceremonies) could not take place without official permission. In 1940, Franco outlawed all Masonic, Communist, and anarchist organisations and in 1941 extended this prohibition to all groups and associations not approved by the government (with the only exception being the Catholic Church). For more details, see Ramon above n 9, 65.

12 Ibid. 13 It was well defined by resolutions of the UN General Assembly, and Spain was

denied admission into the UN. Consider, for example, Resolution 39(I) adopted by the General Assembly on 12 December 1946 which provided that the ‘Franco Fascist Government of Spain, which was imposed by force upon the Spanish people with the aid of the Axis powers . . . does not represent the Spanish people. . . .’ UN General Assembly, Resolution 39(1)G.A.

14 Richard Gunther, Jose R Montero, and Juan Botella, Democracy in Modern Spain (Yale University Press 2004), 67.

15 Ibid. 16 Felipe Aguero, Soldiers, Civilians and Democracy. Post- Franco Spain in Comparative

Perspective (The Johns Hopkins University Press 1995), 137. 17 For a more detailed history of the Basque Country, see Laura Desfor Edles,

Symbol and Ritual in The New Spain: The Transition to Democracy After Franco (Cambridge University Press 1998), 122–38.

18 Gorka Espiau Idoiaga, Special Report ‘The Basque Conflict. New Ideas and Pro-spects for Peace (United States Institute of Peace 2006), 661.

19 Ibid. 20 The most troubling were the activities of the group ETA. However, there were

also some violent groups from the extreme right- wing camp: the Anti- Communist Apostolic Alliance (Alianza Apostolica Anticommunista; AAA or ‘Triple A’), Antiterrorismo ETA (ATE), the Armed Spanish Groups (Grupos Armados Espanoles; GAE), the Warriors of Christ the


King (Guerriller os de Cristo Rey), the Spanish Basque Battalion (Batallon Vasco Espanol; BVE), and some other smaller groups. For further details, see Alison Brysk and Gershon Shafir, National Insecurity and Human Rights. Democracies Debate Counterterrorism (University of California Press 2007), 123–4. The left- wing extremist groups were three communist parties, two Marxist–Leninist parties, and one Maoist group. The Communist Party (Partido Comunista) was linked to a terrorist group Revolutionary Anti- Fascist Front (Frente Revolucionaria Antifascista y Patriotica; FRAP), which has been responsible for a series of murders and violent attacks. Another ultra- left group practising violence to advance its political goals was the Anti- Fascist Resist-ance Groups of the First of October (Grupos de Resistencia Antifacsista Primero de Octubre; GRAPO). For further details, see Constantine Christo-pher Menges, ‘Spain: The Struggle For Democracy Today’ (1978) 58(6) The Washington Papers, 44–5.

21 Edles above n 17. 22 See, for example, ibid. 4. 23 For details, see Gunther, Montero, and Botella above n 14 and Edles above

n 17. 24 Edles above n 17, 6. 25 Geoffrey Pridham and Paul Lewis, Stabilising Fragile Democracies. Comparing New

Party System in Southern and Eastern Europe (Routledge 1996), 145. 26 Edles above n 17, 6. 27 Ibid. 51. 28 Javier Tussel, Spain: From Dictatorship To Democracy. 1939 to the Present (Wiley

2007), 270. 29 Encarnacion above n 2, 1. 30 For example, there was no equivalent to the ‘de- Nazification’ policies, i.e. the

practice of opening police files of the Nazi regime and prosecuting crimes com-mitted by adherents and supporters of the previous ideology in Germany.

31 Pridham and Lewis above n 25, 146. 32 Ibid. 33 Share above n 7, 555. 34 Idoiaga above n 18, 3. 35 Originally ETA started as a small group of students who created a journal

called Ekin (Action) in 1953–1954. In 1959, some young Basque activists, frus-trated with the lack of action, formed ETA (see Holmes above n 6, 9). In the 1970s, ETA split into two groups: ETA- militar (military) and ETA- politicomilitar (political- military). The latter was more willing to negotiate and compromise, while the former was predominantly committed to revolu-tion, violence, and bloodshed (see Ramon above n 9, 225). Both organisations developed political groups to represent their interests and policies in the polit-ical arena. ETA- politicomilitar was transformed into the Euskado Eskerra in 1981 and ETA- militar was represented by Herri Batasuna (Popular Unity), a political party that existed until 2003.

36 The Basque state is claimed to include four provinces in the north- west of Spain (Bizkaia, Gipuzkova, Araba, and Nafarroa) and three provinces in the south of France.

37 Ramon above n 9, 225. 38 Tussel above n 28, 300.


39 Admiral Carrero Blanco was assassinated in December 1973 when 82 kilos of explosives were detonated under his car (for details, see Holmes above n 6, 92).

40 Following the killing of Meliton Manzanas, the police chief of Guipuscoa, a state of emergency was declared in the region and the police were given the power to arrest and torture hundreds of innocent people. Later, 16 members of ETA were tried in Burgos by a military court and four of them were sentenced to death (see Salvado above n 3, 153).

41 Aguero above n 16,141. 42 William A Douglass and Joseba Zulaika, ‘On the Interpretation of Terrorist

Violence: ETA and the Basque Political Process’ (1990) 32(2) Comparative Studies in Society and History 238, 246.

43 For a detailed account of ETA’s campaign for a sovereign state, see BBC News, ‘Timeline: ETA Campaign’, 8 September 2010, available at www.bbc.co.uk/news/world- europe-11181982?print=true, accessed 15 February 2012.

44 For major concerns about applying the criminal law to outlaw Batasuna, see, for example, Victor Ferreres Comella, ‘The New Regulation of Political Parties in Spain’, in András Sajó (ed.), Militant Democracy (Eleven International Pub-lishing 2004), 138.

45 Ibid. 134. 46 Paddy Woodworth, Dirty War, Clean Hands. ETA, The GAL and Spanish Demo-

cracy (Cork University Press 2001), 50. 47 Aguero above n 16, 137. 48 The Decentralisation Law LO 3/1979. 49 Partido Nacionalista Vasco (the Basque Nationalist party) – a nationalistic

political party with a moderate agenda. 50 The reason for such resistance is that Basque nationalists consider the Basque

Country to be comprised of seven provinces, four of which are part of Spain: Bizkaia, Gipuzkova, Araba, and Nafarroa; and three of which belong to France: Labourd, Lower Navarre, Soule. For details, see Carlos Pestana Barros, ‘The Timing of ETA Terrorist Attack’ (2006) 28(3) Journal of Policy Modelling 335, 336.

51 For detailed data on the number of casualties and affiliation of victims of ter-rorism during the early years of transition, see Aguero above n 16, 142.

52 For example, on the day of approval of the constitution by the Cortes, ETA killed an army general; Madrid’s military governor was assassinated shortly after the constitutional referendum in January 1979. For a detailed account, see Holmes above n 6, 92.

53 Statistics as of 2008. See Encarnacion above n 2, 7. 54 Article 55.2 reads as follows:

An organic law may determine the manner and the circumstances in which, on an individual basis and with the necessary participation of the Courts and proper Parliamentary control, the rights recognised in Articles 17(2) and 18 (2) and (3) may be suspended as regards specific persons in connection with investigations of the activities of armed bands or terrorist groups. Unjustified or abusive use of the powers recognised in the forego-ing organic law shall give rise to criminal liability where it is a violation of the rights and liberties recognised by the law.

55 See, for example, Mary L Volcansek and John F Stack Jr., Courts And Ter-rorism. Nine Nations Balance Rights and Security (Cambridge University Press


2010), 183; and James Beckman, Comparative Legal Approaches To Homeland Security And Anti- Terrorism (Ashgate Pub Co 2007), 113.

56 Lucana M Estevez Mendoza, Dalibor Pavolka, and Jaroslav Niznansky, European Response to Terrorism: the Cases of Spain and Slovakia (Ministry of Defence of the Slovak Republic 2006), 29; Human Rights Watch, Report Setting an Example? Counter- Terrorism Measures in Spain (2005) 1 (D), 18.

57 Articles 571–80, 1995 Criminal Code (Ley Orgánica 10/1995, 23 November, del Código Penal) (Spain).

58 The others are France, Germany, United Kingdom, Portugal, and Italy (Mendoza, Pavolka, and Niznansky above n 56, 30).

59 Ibid. 60 Marianne Van Leeuwen, Confronting Terrorism. European Experiences, Threat Per-

ceptions and Policies (Kluwer Law International 2003), 69. 61 It is difficult to explain why Spain decided to cast a shadow over its newly

established democratic constitutional regime to fight the war on terror, espe-cially in the light of the gentle approach that can be found in Article 55 (2) of the Constitution.

62 Brysk and Shafir above n 20, 129. 63 Miguel Revenga Sanchez, ‘The Move Towards (And the Struggle For) Militant


64 Article 6: Political parties express democratic pluralism, assist in the formula-tion and manifestation of the popular will, and are a basic instrument for polit-ical participation. Their creation and the exercise of their activity are free within the observance of the Constitution and the laws. Their internal structure and operation must be democratic.

65 Ley 54/1978 de Partidos Politicos/Law 54/1978 on Political Parties. 66 Article 515 of the Criminal Code provides the definition of a criminal associ-

ation and Article 520 establishes a procedure for dissolution of such associations by the judiciary.

67 See Sanchez above n 63, 8. 68 Leslie Turano, ‘Spain: Banning Political Parties as a Response to Basque Ter-

rorism’ (2003) 1 International Journal of Constitutional Law 730, 732. 69 Comella above n 44, 133. 70 For a detailed description of the new law, see Turano above n 68, 730–40. 71 Ibid. 733. 72 For a list of proscribed behaviour, see ibid. 733–4. 73 For example, the prohibition of the following activities is unlikely to be con-

tested: including regularly in its directing bodies and on its electoral lists persons who have been convicted of terrorist crimes and who have not publicly renounced terrorist methods and aims, or maintaining among its membership a significant number of those who belong to groups with links to terrorist organ-isations; conceding to terrorist organisations the rights and prerogatives given by law to political parties; giving institutional support to any group that acts systematically in accordance with terrorist or violent organisations or that pro-tects and supports terrorism and terrorists (Article 9.3).

74 Comella above n 44, 142. 75 See Turano above n 68, 733. 76 Ibid.


77 Comella above n 44, 134. 78 1995 Criminal Code above n 57. 79 Comella above n 44, 138. 80 For a detailed summary of the constitutional complaint in English, see Decision

of the European Court of Human Rights Herri Batasuna and Batasuna v. Spain (2009) (Application nos 25803/04 and 25817/04).

81 Decision of the Constitutional Court of Spain STC 48/2003. 82 Comella above n 44, 145. 83 Six of the charges related to refusals to condemn the atrocity and one referred to

a refusal to sign an institutional declaration of respect for human rights adopted by all regional governments in Spain. These actions qualified as tacit support of terrorism prohibited by Article 9(3)(a). Other charges related to explicit support of ETA, threatening representatives of other political parties, the pres-ence of militants in Batasuna, and creating an atmosphere of terror and intim-idation. For more details, see Turano above n 68, 738.

84 Comella above n 44, 135. 85 Decision of the Special Chamber (Sala Especial) of the Supreme Court of Spain STS

27/2003. 86 For details, see Comella above n 44, 151. 87 Decision of the Spanish Constitutional Court of Spain STC 5/2004. 88 Herri Batasuna and Batasuna v. Spain above n 80. 89 Ibid. para. 87. 90 ECHR mentions in its judgment at least United Communist Party of Turkey and

Others v. Turkey (1998) (Application no. 19392/921998); Socialist Party and Others v. Turkey (1998) (Application no. 26482/95); Party of Freedom and Democracy v. Turkey (1999) (Application no. 23885/94); Refah Partisi (the Welfare Party) and Others v. Turkey (2001) (Application nos 41340/98, 41342/98, 41343/98 and 41344/98).

91 Turano above n 68, 735. 92 See Sanchez above n 63, 10. 93 Ibid. 94 Involvement of Loyalist paramilitary political representatives along with other

radical groups makes Ireland the best example of how negotiations can be con-ducted successfully. For more details, see Peter R. Neumann, ‘Negotiating with Terrorists’ (2007) 86(1) Foreign Affairs 128, 137.

95 Tim Bale, ‘Are Bans on Political Parties Bound to Turn out Badly? A Com-parative Investigation of Three “Intolerant” Democracies: Turkey, Spain and Belgium’ (2007) 5 Comparative European Politics, 151.

96 Turano above n 68,732. 97 Ibid. 735. 98 Sanchez above n 63, 14. 99 The members of Batasuna had been sentenced by the Supreme Court to seven

years’ imprisonment (Decision of the Criminal Chamber of the Supreme Court of Spain STS 29/1997).

100 Decision of the Constitutional Court of Spain 136/1999. For details, see Sanchez above n 63, 11.

101 For jurisprudence on Article 55.2 of the constitution, see Svetlana Tyulkina, ‘Terrorism and Constitutional Change: Lessons from Spain’ (2013) 7(2) Vienna Journal of International Constitutional Law, 182–4.

102 Bale above n 95, 150.

8 Militant democracyA guide to Australia’s counter- terrorism policies?

Over the past few decades, militant democracy has emerged as an important way of understanding constitutional systems around the world and in recent years it has expanded to include policies aimed at addressing, for example, the threats of religious fundamentalism and terrorism. Militant democracy is widely used to better understand constitutional systems and evaluate their practical operation, in particular in relation to state actions directed at self- defence from internal threats. It is especially useful where it might provide a rationale for constitutional concepts and approaches that might otherwise have been considered to have fallen outside of the liberal conception of democracy. This chapter examines the case of Australia and how militant democracy can provide guidance to its counter- terrorism policies. At first glance, the Australian Constitution does not contain any explicit provisions on democratic militancy, which is why Australia has not traditionally been regarded as an example of a militant democracy state. However, Australian constitutional law is indeed familiar with this concept and this chapter establishes a case to treat Australia as a state with some form of democratic militancy. Further, it investigates how militant democracy became the unof-ficial guide to Australia’s counter- terrorism policies in the aftermath of the Thomas v. Mowbray case, where the High Court of Australia interpreted the scope of the defence power to accommodate legislative measures against both external and internal ‘enemies’, including the activities of terrorists and their groups operating within Australia. Many elements of Australia’s counter- terrorism policies have attracted wide criticism and are seen as exceptional and controversial for a liberal democracy. In this respect, this chapter argues that if militant democracy is to guide Australia in its national security pol-icies, it will render the entire regime more compatible with major demo-cratic principles. The case of Australia supports and enhances this book’s argument that all democracies are militant to some extent and that militant democracy remains the primary concept to guide states’ policies in neutralis-ing various internal threats, including the activities of terrorist groups within its territory.

Australia’s counter-terrorism policies 145

8.1 Australia: a militant democracy?

As mentioned above, at first glance, the Australian Constitution does not contain any of the traditional features of a militant democratic state men-tioned in Chapter 3, such as procedures to outlaw political parties or non- amendable constitutional provisions. On this basis, one might conclude that Australia lacks any elements of constitutional militancy: such an impression, however, is not correct. In fact, signs of militant democracy may be found in the text of the Australian Constitution, federal legislation, and the decisions of the High Court of Australia. The very first draft of the Commonwealth of Australia Bill adopted in April 1891 indicates that even then the drafters of the constitution wanted to design a document capable of maintaining the legal order that it would establish. The phrase ‘to execute and maintain the laws’ survived all sub-sequent Convention debates on the draft of the constitution and is present in section 51(vi) of the constitution as enacted. The wording of s 51(vi) was slightly modified during the debates,1 but there was never a question of removing the idea that the defence power included maintaining the legal order. Examples of the application of the defence power2 demonstrate that, in times of war, this legislative power ‘may extend into virtually every aspect of Australian life’.3 In times of peace, the scope of the defence power is much more limited, yet it still has the potential to regulate activities only indi-rectly related to defence.4 Thus, the defence power of the Federal Parliament was relied upon to ban the Communist Party of Australia in 19505 (dis-cussed in Chapter 4) and to introduce the mechanism of control orders as part of an anti- terrorism legislative package in 2005. The defence power as invoked in times of peace to protect and maintain the legal order speaks in favour of a militant democracy rationale behind the doctrine of the defence power, both in terms of the text of the constitution and its subsequent application in practice. Further reference to militant democracy can be found in section 61 of the Australian Constitution, which deals with the executive power and states that ‘the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor- General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’. This task of the executive is in full conformity with the spirit of militant democracy, as well as the provision of section 51 of the constitution which enables parliament to legislate with respect to defence in order to maintain the existing legal order. The argument that militant democracy is relevant to Australia is further bolstered by reference to federal legislation, most notably the mechanism for proscribing unlawful associations.6,7 In 1916, the Commonwealth Parlia-ment passed the Unlawful Association Act 1916 (Cth), which was introduced as ‘an act of nation’s self- defence’ against the organisation known as Indus-trial Workers of the World.8 Later, Part IIA of the Crimes Act 1926 (Cth)


replicated to a large extent the proscription mechanism, with its provisions aimed at defeating ‘the nefarious designs of the extremists in our midst’.9 While no organisation has ever been declared unlawful under the legislation, it is hard to contest that Australian democracy was concerned with the problem of self- defence and its continued existence as a democracy from the very early years of the Commonwealth. In the first half of the twentieth century, Australia was far from unique. This can be demonstrated by the apparent willingness to employ proscription as a mechanism to fight danger-ous and subversive political movements. This approach was common to other states at that time. The fact that proscription mechanisms were aimed at fighting subversive groups and individuals located within Australia con-firms that, in the first half of the twentieth century, Australia was not that unique with regard to the use of the mechanism of militant democracy as a technique to fight dangerous and subversive political movements. Another example of militant democracy in the constitutional history of Australia is the attempt to ban the Communist Party of Australia in 1950.10 The ban imposed on the Communist Party was promoted as being ‘necessary for the security and defence of Australia and for the execution and mainte-nance of the Constitution and of the laws of the Commonwealth’.11 The execution and maintenance of the Constitution cited in the Preamble as one of the aims of the legislation refers to the very essence of executive powers stipulated in s 61 of the Constitution. As discussed above, ss 51(vi) and 61 of the Australian Constitution belong to a set of militant democracy meas-ures aimed at protecting Australia’s continued existence as democracy. Further, the fact that the legislature relied upon the concept of ‘maintenance of the Constitution and of the laws’ to justify the ban of the Communist Party is a clear indication that militant democracy is reflected not only in Australia’s Constitution, but also in the legislative practice of the Common-wealth Parliament. In addition to the text of the Australian Constitution and the Common-wealth legislation, militant democracy is present also in the jurisprudence of the High Court, most significantly in regard to the defence power. In the aftermath of the 9/11 attacks and the London and Bali bombings, the Federal Parliament referred multiple times to its defence power to deal with the situation. One such instance was in introducing the mechanism of the control orders.12 This particular legislative measure was applied in an indi-vidual case and later challenged at the High Court of Australia. The scope of the defence power became one of the central questions in the Thomas v. Mowbray case.13 The High Court’s interpretation of the scope of the defence power illustrates how the militant democracy theme can be seen at work between the lines of this important judicial ruling, and explains how this concept is of relevance in the context of counter- terrorism legislation. Shortly after the attacks of 11 September 2001, Australia started its move to develop a comprehensive and complex counter- terrorism regime. It is not hard to draw parallels between the moral panic surrounding the fear of


communism in the 1950s and the panic then about the threat of terrorism.14 For example, more than 50 years ago communists were labelled as ‘the most unscrupulous opponents of religion, of civilised government, of law and order, of national security’, and communism was depicted as ‘an alien and destructive pest’.15 In March 2002, the then Federal Attorney- General, Daryl Williams declared that ‘terrorism has the potential to destroy lives, devas-tate communities and threaten the national and global economy’ and described terrorist forces as ‘actively working to undermine democracy and the rights of people throughout the world’.16 In the light of these similarities, it was expected that the government would rely on the same constitutional provisions as it had done in the 1950s while trying to protect Australia from a newly emerged type of threat which was coming both from foreign and domestic ‘enemies’. In 2007, the High Court of Australia handed down its decision in Thomas v. Mowbray. Joseph Thomas17 was subjected to an interim control order under Subdivision B of Division 104 of the Criminal Code18 and subsequently challenged the constitutional-ity of that entire Division in the High Court of Australia.19 The majority of the Court (5:2) ruled that Subdivision B of Division 104 of the Criminal Code Act was valid. The case for finding invalidity of Division 104 was based on three grounds,20 the most relevant for the militant democracy debate being whether the Commonwealth had legislative power to enact the law that introduced the control order regime. To reword this for present purposes, the most valuable part of this judgment concerned whether the defence power can be used in a militant democracy fashion to address not only external but internal threats too. The High Court of Australia answered in the affirmative. The Commonwealth legislature lacks a specific power to deal with ter-rorism (as well as a general power to legislate with respect to criminal law), and so such matters come within state legislative power.21 It is also not stated in any clear form that anti- terrorism legislation can be enacted under the defence power. However, in 2003 states referred legislative power over terrorism to the Commonwealth Parliament (under section 51, xxxvii, of the constitution). It was expected then that enacting counter- terrorism laws would become relatively easy for the Commonwealth despite the absence of expressed or implied legislative power.22 However, this was not proved to be the case, which is why one of the central questions in Thomas v. Mowbray was whether the regime of control orders fell within the Commonwealth’s defence power under s 51(vi) of the Constitution. The Court decided by 6:1 (Kirby J dissenting) that the interim control order mechanism was valid under the defence power. The High Court interpreted the scope of the defence power under section 51(vi) as authorising laws that go beyond the prevention of a merely external threat, stating that ‘there need not always be an external threat to enliven the [defence] power’.23 This was the first time that such an enlarged conception of the defence power was endorsed in a High Court judgment. After the Thomas v. Mowbray decision, parliament’s


competence to legislate under the defence power no longer depended on Australia being at war or threatened by another state, and nor did an enemy need necessarily be a collective or group. Dissenting judge Kirby J did not agree with this conclusion and argued that it might lead to an ‘effectively unlimited’ defence power. Thomas stands as the most important defence power case since the Aus-tralian Communist Party case.24 The interpretation of the scope of the Com-monwealth defence power given in Thomas v. Mowbray can be easily reconciled with the concept of militant democracy: it declares that the Com-monwealth can legislate under the defence power even on matters that have nothing to do with issues of ‘defence’ in the traditional sense of the word. It was declared by the Court that the current threat of terrorism is sufficient to broaden and modify the traditional interpretation of the defence power even though Australia is far from being involved in an actual war. In other words, the defence power was ‘stretched’ to adjust this constitutional provision to a new reality, such that the concept of ‘defence’ now includes responding to threats that fall short of war in the traditional sense. Thomas v. Mowbray opened the door for militant democracy to occupy a greater space in Australia’s public law, including anti- terrorism policies. The defence power was interpreted such that the federal government may take preventive measures to protect the statehood and body politic not only from external but also from internal enemies. This is exactly what the concept of militant democracy allows liberal democracies to do – to act pre- emptively to suppress attempts to harm the system from within. Interpreting the defence power in a manner compatible with the concept of militant demo-cracy may be justified in the light of the nature and extent of terrorist threats, which do not necessarily always come from outside Australia. In this respect, it is legitimate to ask whether the concept of militant democracy can assist in making anti- terrorism policies in Australia more justified and less controversial. To answer this question, it is important to look more closely at Australia’s anti- terrorism legislation, and to identify the major concerns and challenges it poses for Australian democracy.

8.2 Australia’s anti- terrorism regime: overview and major concerns

Australia has only a short history of legislating for the prevention of ter-rorism,25 and prior to September 11, Australia dealt with politically motiv-ated violence through ordinary criminal law provisions.26 But in the past decade Australia has been highly active in enacting new laws to address the threat of terrorism, with the Australian parliament having since 2001 enacted 61 pieces of anti- terror legislation.27 These laws are unprecedented in reach and scope, and some powers and sanctions introduced by these laws are of a kind traditionally considered appropriate and justified during wartime only. The Australian anti- terror regime includes


laws providing restrictions on freedom of speech through new sedition offences and broader censorship rules; detention and questioning for up to a week by the Australian Security Intelligence Organisation (‘ASIO’) of Australian citizens not suspected of any crime; the banning of organi-sations by executive decision; control orders that can enable house arrest for up to a year; detention without charge or trial for up to 14 days; and warrantless searches of private property by police officers.28

Many of these measures sound rather exceptional or controversial for liberal democracy but it has become common to treat the situation with counter- terrorism legislation as something usual and normal. It is not feasible to provide a detailed account and critical assessment of every single anti- terrorism measure introduced in Australia since 2001. In any case, there is no shortage of academic publications on this topic. However, an overview of the most controversial developments is needed to demonstrate how Australia introduced its ‘extra- constitutional’ regime to combat the threat of terrorism and to set up the background for a discussion on how militant democracy can assist in justifying Australia’s anti- terrorism policies while upholding the rules of liberal democracy.

Australian security intelligence organisation and its new powers

The Australian Security Intelligence Organisation (ASIO) was established in 1949. Its major role is ‘to identify and investigate threats to security, wher-ever they arise, and to provide advice to protect Australia, its people and its interests’.29 In the early stages of its operation, the agency was concerned mainly with the possible threat of Soviet espionage and communism in general. However, after September 11 the organisation’s staff and budget were both substantially increased,30 together with the scope of its powers. An amendment in 200331 which expanded the authority of ASIO was labelled ‘the most controversial piece of legislation ever reviewed by the Committee32 on ASIO, ASIS and DSD’.33 Strong opposition to the Bill led to long debates and deliberations, and it ultimately took 15 months for the Bill to be passed.34 The original draft of the Bill was substantially amended through parliamentary processes – for example, to eliminate its controversial provisions allowing the detention of children (persons under 18 years) and abolishing legal representation during preventive detention and question-ing.35 Even though the final version of the Bill eliminated most of the con-troversial provisions, and had substantially changed from the original version into a version intended to reach a compromise on all points, it still remains highly contested. After the 2003 Bill was adopted, ASIO gained a new power to seek two kinds of special warrants: one authorising questioning alone, the other authorising detention combined with questioning.36 A warrant must be obtained from the ‘issuing authority’ (a federal magistrate or judge appointed by the Attorney- General). However, before applying for


the warrant, the Director General of ASIO must seek the consent of the Attorney- General. There is no need to suspect someone of being involved in committing or planning to commit an act of terrorism to issue the warrant in question. If a person is believed to be able to ‘substantially assist in the collection of intelligence information that is important in relation to a ter-rorism offence’,37 it is enough to initiate the procedure. In the instance of applying for the warrant to detain and question, the Attorney- General must be satisfied that, if the person is not taken into custody immediately, they may divulge details of the investigation to other persons involved in com-mitting a terrorist act, or that they may not appear before the authorities for questioning, or that they may destroy or damage a thing that may later be requested to be presented to the authorities. A questioning warrant might be issued for up to 28 days and the ques-tioning itself can last for up to 24 hours (in blocks of no more than eight hours each), or 48 hours with an interpreter. Under the questioning and detention warrant, a person can be kept in custody for up to seven days and questioned for no more than 24 hours in maximum eight- hour blocks (without being suspected of committing a crime of terror). In addition, the legislation imposes obligations after the warrant expired: interviewees are prohibited from disclosing that they have been subject to a warrant (with no exceptions for reporting to journalists, even if the report is about possible abuse or misuse of the warrant system).38 These measures were considered to be somewhat extraordinary even by the government and parliament, as evid-enced by the inclusion of a three- year sunset clause in the Bill. However, in 2006, parliament extended the sunset clause on the ASIO legislation for another ten years (to July 2016).

Pre- emptive policy: preventive detention and control orders

Australia’s pre- emptive policy can claim the mantle of the most controversial item in the nation’s anti- terrorism policy. It is the generally accepted view that the main purpose of the anti- terrorism legislation is the prevention of future terrorist attacks (and not only criminal prosecution of those who com-mitted or attempted to commit them). Therefore, many anti- terrorism meas-ures are of a preventive character so that the state may take action well in advance. However, policies granting extended powers to governmental intel-ligence agencies where the application of those powers could lead to the denial of the most fundamental individual rights and freedoms (especially those directly related to fair trial guarantees) can pose some serious concerns as to the legitimacy and even necessity of such measures. In the aftermath of the 2005 London bombings, a new anti- terrorism legislation package was introduced in Australia39 and Divisions 104 (Control Orders) and 105 (Pre-ventive Detention) were added to the Criminal Code (Part 5.3).40

A control order is a measure of a preventive character.41 The content and nature of the measure itself is not entirely unprecedented; similar measures


could already be imposed on persons recently released from prison or on pro-bation, but who have in any case been confirmed by a court to have commit-ted a crime or other offence. In other words, such measures were traditionally imposed on someone already found guilty of serious wrongdoing and, there-fore, authorities have had legitimate grounds to maintain some control over their actions and behaviour. However, Australia now uses this institution in quite a specific context: the person does not need to be charged or prosecuted for any kind of offence. At the same time, limitations imposed by the control order might affect many aspects of a person’s liberty and technically amount to house arrest: it may require a person to stay in a certain place at certain times; prevent a person from going to certain places or talking to certain people, from accessing or using certain types of telecommunications, or from carrying out specific activities (including those relating to a person’s work); or require them to wear a tracking device.42

The power to seek an interim control order was granted to senior members of the Australia Federal Police (AFP) only. To seek such a measure, the AFP member must have reasonable grounds to believe that making the order would ‘substantially assist in preventing a terrorist act’43 or suspect that the person over whom the control order is sought has provided training for a proscribed terrorist organisation, or received training from it.44 The next step is to get written consent from the Attorney- General to request an interim order from the court (the Federal Court, Family Court, or Federal Magistrates Court can issue such an order). Once the consent of the Attorney- General is granted, the AFP member can request the interim control order from the court. The request to the court must be made in the same form as it was presented to the Attorney- General. The court will assess the reasonableness of issuing the control order only on the grounds presented by the AFP member’s request. In order

to issue the interim control order the court must believe, on the balance of probabilities, that it would substantially assist in preventing a terrorist act or that the person has received training from or provided training to a listed terrorist organisation.45

In addition, the court must ensure the order ‘is reasonably necessary, and reasonably appropriate and adapted’ and in, deciding whether to issue the order, ‘the court must take into account the impact of the obligation, prohibition or restriction on the person’s circumstances [including the person’s financial and personal circumstances]’.46 The most controversial provision of the control orders mechanism would probably be the power of the issuing court to decide upon the necessity to issue an order ‘on the balance of probabilities’. The test itself is not novel, but is traditionally a standard of proof reserved for civil cases that do not affect individual liberties. Taking into account the character of the limitations imposed on individuals under the control order, such a relaxed test for the court’s


assessment seems to be highly undesirable. It is indeed a serious departure from the generally recognised principles of criminal justice, and one of the major principles of democracy – rule of law – in general. Another striking feature of the procedure is that the interim control orders are issued ex parte. Once an interim control order is issued by the court, the AFP member has to decide if the order should be confirmed or not. If the control order is to be confirmed, the AFP member has to go to court again and seek a confirmed order.47 This time, the person over whom the control order is sought will be given 48 hours’ notice of the hearing, a summary of the grounds to seek an order, and copies of the documents given to the Attorney- General to get their consent. However, some information still might be hidden from the individual if revealing it is considered to undermine national security or jeopardise operations of the police. In other words, even though the notice on the hearing and summary of the grounds are to be sent to the person affected, there is still no guarantee that the person will be aware of all the evidence against him. While the presence of the person in the courtroom when the control order is to be confirmed is a significant improvement of the original draft of the Bill, it does not address all the concerns and serious incompatibility with the internationally accepted principle of a fair trial. The court hearing can end in three different ways.48 First, the court might declare the order to be void if it finds that at the time it was made there were no grounds for it. In practice, this would represent an embarrassment for the AFP where the court itself finds that there were no grounds to issue an interim control order. Another possible outcome of the court’s hearing might be the softening of some measures imposed on the individual if the court is satisfied that there were grounds to impose a control order but that the measures sought are not reasonably necessary, reasonably appropriate, and adapted. Finally, the court could confirm the interim control order in full, and it may then remain in force for up to 12 months (or three months for persons between 16 and 18 years of age). After an order has expired, the AFP can make new requests under the same procedure. While the order is still in force, the AFP may apply to the court to modify the original order to add more obligations, limitations, or restrictions, this time with no need for the Attorney- General’s consent. The individual has a right to apply to revoke and modify the order (although this is of shallow comfort when keeping in mind that the procedure to confirm the order did not allow for the grounds of the order to be revealed to the individual over whom it is sought), or alternatively the confirmation itself of the original order can be appealed to a higher court. The Australian model of control orders was based on a similar mechanism in the United Kingdom.49 The major difference is, however, that the UK drafted its mechanism of control orders with the provisions of the Human Rights Act in mind,50 while the Australian parliament was not required to consider individual rights and freedoms as probable constraints on the contents of the laws it enacted. The Australian judiciary had a chance to


comment on the control orders regime and in 2007 the High Court upheld the constitutionality of this regime in the Thomas v. Mowbray case (as discussed above). Division 105 of the Criminal Code introduced a ‘preventive detention order’51 (‘PDO’) which can be used to ‘detain a person for a short period of time in order to prevent an imminent terrorist act to occur or preserve evid-ence of, or relating to, a recent terrorist act’.52 Initially a person can be taken into custody for up to 24 hours (with the possibility of this being extended to up to 48 hours). An extended period of detention in addition to this is made possible under state laws, up to a maximum of 14 days.53 In order to obtain a PDO, a member of the AFP must apply to an issuing authority. The consent of the Attorney- General is not required. For the initial PDO, the issuing authority must be a senior member of the AFP itself, but for the continued PDO it would be a serving or retired judge who gave consent to act in such a capacity.54 While making, extending, or revoking the PDO, judicial officers do not act as members of their courts, but are acting in per-sonal capacities (mainly because the Australian Constitution sets out in very strict terms the types of powers that can be exercised by the judiciary).55 This appears somewhat curious, as on the one hand it is important that the issuing authority must be a member of the judiciary, while on the other hand, the attempt by the legislature to disconnect the making of a PDO from the duties within the judicial office raises concerns. The first ground to initiate a PDO procedure is the existence of the threat of a terrorist act which is expected to take place in the next 14 days.56 In addition

the issuing authority must be satisfied that there are reasonable grounds to suspect that the subject [of the PDO] will engage in a terrorist act; or possesses a thing that is connected with the preparation for, or the engagement of a person in, a terrorist act; or has done an act in prepara-tion for, or planning, a terrorist act.57

The issuing authority must also be satisfied that ‘making the order would substantially assist in preventing a terrorist act occurring’58 and ‘detaining the subject for the period for which the person is to be detained under the order is reasonably necessary’59 for the purpose of preventing a terrorist act. The second ground for making a PDO is to ‘preserve evidence relating to a recent terrorist act [which occurred in the last 28 days] . . . if the period of detention is necessary for this purpose’.60 Once a PDO is issued, the person is taken into custody; the officer taking the person into custody has the same range of powers as if he or she were arresting someone for committing a criminal offence. The person taken into custody must be supplied with the copy of the order and there are also general guarantees relating to the con-ditions of detention and the prohibition of torture. However, a person cannot be questioned under a PDO, as this can only be done if a separate question-ing warrant is obtained.


One of the problematic features of the PDO regime is the list of people the person taken into custody is allowed to contact – that is, one family member, co- resident, employer, or business partner – while not being able to reveal any information about being detained.61 The person can only say that he or she is safe but cannot be contacted for the time being. The detained person can make a complaint to the Ombudsman and consult a lawyer about the conditions of their detention.62 However, the right to contact a family member or a lawyer can be limited in the interest of preserving evidence and preventing interference with the process of gather-ing information and other tasks carried out by the intelligence agencies in relation to an act of terrorism. Another worrying feature of the PDO regime is that it strictly prohibits disclosing to anyone the existence of the PDO (punishable by up to five years’ imprisonment) and that this applies to the person subject to the order, as well as their lawyer, the police officers, and interpreters. The effectiveness of such a measure is legitimately contested by commentators. Thus, assuming that the subject of the PDO is indeed a member of a terrorist organisation planning to commit or having recently committed an act of terrorism, then their sudden disappear-ance and suspicious call about being safe but not able to be contacted would be a clear signal to the entire cell.63 To date, there have been no preventive detention orders issued in Australia and this fact speaks for itself: PDOs are a measure probably not worth the time and effort the parliament spent on enacting it.

Proscription regime

Prior to September 11, the only way to ban an organisation in Australia (including a terrorist one) was the regime of ‘unlawful association’ estab-lished in the 1920s.64 However, in the wake of September 11, two additional regimes were introduced and became important elements of Australia’s anti- terrorism regime. The first regime was adopted in response to the United Nations Security Council Resolution 1373, which required member states to take measures in relation to terrorist organisations’ financial flows. The second regime – a scheme to proscribe terrorist organisations – was intro-duced by the Security Legislation Amendment (Terrorism) Bill 2002. Divi-sion 102 of the Criminal Code grants the Attorney- General the power to declare an organisation a ‘terrorist’ organisation,65 and provides a list of offences for individuals involved in their activities. According to section 102.1, a regulation specifying an organisation as ter-rorist is made if it

is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act [whether or not a terrorist act has occurred or will occur]66 or advocates the doing of a terrorist act [whether or not a terrorist act has occurred or will occur].67


Legislative amendments conferring powers upon the Attorney- General to proscribe a terrorist organisation gained significant community opposition and was even reported by the Senate Legal and Constitutional Legislation Committee as raising concerns.68 This measure of the anti- terrorism package legislation is quite different from others described above as it was used quite extensively to proscribe various organisation,69 most of which have Muslim affiliations.70 The situation around this scheme became even more controver-sial when parliament passed a law in 2004 removing the limitation of banning only those organisations that had been identified by the UN Security Council. The Attorney- General may now seek to ban any organisa-tion that is reasonably believed to be involved in terrorist activities, without any need for the prior consent of parliament. With these amendments, the government gained nearly unlimited and uncontrolled powers to list, de- list, and re- list an organisation as terrorist. The Criminal Code provides some protection mechanisms (such as reviews by the Parliamentary Joint Commit-tee on ASIO, ASIS, and DSD),71 but such mechanisms did not prove to be an effective remedy as, to date, no Attorney- General decision to list an organ-isation as terrorist has been overruled. One response to the characterisation of the new Attorney- General powers as unlimited is to argue that the organ-isation still can be de- listed in due course; however, this argument is not sustainable when keeping in mind that the law vests this procedure in the hands of the same official. Further concerns can be raised given the vague language of the Criminal Code provisions defining the grounds for which an organisation may be listed under this procedure, such as advocacy of ter-rorism, for example. The procedure provided in section 102 lacks clear cri-teria to guide the use of the Attorney- General’s powers and does not provide any opportunities to oppose the intended proscription and seek an inde-pendent review of the decision to proscribe an organisation. The most crit-ical concern about this scheme is that the listing of an organisation causes drastic consequences for its members: Subdivision B of Division 102 pro-vides an extensive list of crimes for individuals affiliated with terrorist organisations. The legislative developments outlined above do not represent an exhaus-tive list of the features of Australia’s anti- terrorism regime and do not include, for example, crimes of terrorism, financing offences, restrictions on freedom of speech through new sedition laws, various surveillance measures, amended evidence procedures, and border and transport security measures.72 But even the few measures listed above reveal that Australia’s anti- terrorism policies are deeply problematic. These problems include a predominantly reactive response to terrorist attacks, poor quality of laws as a result of legis-lating with urgency,73 a shift in the separation of powers towards a more powerful and less accountable executive, general interference with the estab-lished system of governance, and the negative impact such measures can have on individual rights and freedoms. The legitimate question might arise of whether such measures are legitimate and effective at all if they damage and


corrupt the rules of liberal democracy.74 The human rights concern is aggra-vated by the fact that Australia does not have a consolidated bill of rights in any form. Affected persons will find it challenging to secure protection from excessive rights infringements through the procedure of judicial review, and there is no legal basis to challenge the constitutionality of anti- terrorism laws on human rights grounds. Also, the situation is not remediated by the justification of ‘constitutional borrowing’ where anti- terrorism measures similar to other jurisdictions are adopted: some anti- terror measures were enacted in Australia based on overseas models (such as in case of the mech-anism of control orders); however, given the absence of a legal requirement to uphold human rights, Australia cannot offer the same level of protection as the United Kingdom.75 In the absence of a written bill of rights, the decision- maker is not bound to take compatibility with human rights into consideration, and this matter has received ‘inadequate attention’76 in Aus-tralia. The adoption of a bill of rights is not a panacea for all the concerns and problems with Australia’s anti- terrorism regime. That said, subjecting anti- terrorism measures to the possibility of being assessed against human rights protection clauses would necessitate some much- needed limits to gov-ernment initiatives introducing new draconian measures, forcing the admin-istration of the day to re- think the existing measures and empowering individuals to stand against excessive intrusion into their rights and freedoms.

8.3 Militant democracy: a guide to Australia’s anti- terrorism polices?

Anti- terror measures are routinely criticised internationally, but Australian measures are particularly problematic. Many aspects of Australia’s anti- terrorism policy have been the subject of serious criticism and calls to be abolished or amended.77 Amongst Western democracies, Australia has adopted the most unprecedented anti- terrorism measures of the group, despite never having experienced any act of terrorism in its territory and despite not having the protection of a statutory bill of rights. Australia introduced an unknown into its constitutional theory regime between nor-malcy and a state of emergency. It is arguable that the departure from the regime of constitutional normalcy should not be justified by anything short of a state of war. Unless that has occurred, a democratic state must be guided by the rule of law, human rights must be preserved, and the principle of sep-aration of powers must ensure the accountability of the government and the ability for individuals to seek protection in the courts. Given that the Aus-tralian government made a choice to ‘put aside’ many of these principles, it is suggested that Australia is or was seriously misguided by its fear of terrorism. Australia’s anti- terror laws were adopted as a response to the September 11 attacks, but are still in place more than a decade after the tragic events of


2001. This indicates that such measures can no longer be considered as a short- term legal response. It reflects the assessment of the Australian govern-ment that terrorism is a persistent threat and that anti- terrorism laws should therefore be treated as a permanent and necessary feature of the legal regime. But even if we accept that the threat of terrorism is real and present, it does not follow that the government has a carte blanche to protect national security at all costs. So- called ‘times of stress’ provide a perfect occasion to test national governments’ true adherence and commitment to the rule of law and democracy. Unfortunately, the Australian government – as well as many other democratic states – failed to demonstrate this in regard to its anti- terrorism policies. Therefore, there is a need for Australia to reconsider its approach and to formulate a constitutionally permitted framework in which to locate its anti- terrorism policies in order to bring them closer to a regime of constitutional normalcy. As the sunset clause on several anti- terror laws approaches, in 2016, such a suggestion seems to be timely and relevant; and hopefully the Australian legislature will heed this and other calls to make anti- terrorism policies more compatible with basic rules of democracy. I argue that the militant democracy logic might be a helpful tool to guide the country in its so- called ‘war on terror’ and could assist to address at least some of the con-cerns posed by Australia’s anti- terrorism policies. This is a real possibility given the fact that militant democracy as a concept is familiar to Australia’s constitutional theory and practice, including in the national security context (Thomas v. Mowbray decision). Militant democracy does not amount to a departure from the regime of constitutional normalcy, which is one of the major problems for Australia’s anti- terrorism policies. The level of allowed rights limitations combined with extraordinary powers granted to the executive to decide exclusively on such limitations are very similar to what is allowed during a state of emer-gency. It is clear that no government at the moment can legitimately pro-claim a state of emergency because of a terrorism threat, not only because of the timeframe but mainly because a state of emergency presupposes the real existence of an exceptional situation (such as a natural disaster or external military attack). In Australia, the threat of terrorist attacks is happily only a distant possibility at the moment. Therefore, it is not possible to use a state of emergency to justify a departure from the ordinary constitutional regime to combat terrorism. This creates a serious inconsistency between the legal rationale for the regime and the content of its provisions. Militant demo-cracy might ‘cure’ this problem as it represents a theoretical paradigm and practical approach to preventive politics that a state might adopt without moving towards an emergency regime. Adopting militant democracy as one of the guiding principles of Australia’s anti- terrorism policies would remind decision- makers and executive agencies that it is possible to protect the con-stitutional order and democracy at large using preventive mechanisms that are compatible with the fundamental principles of democracy.


Further, as militant democracy is not considered an exceptional regime it will be harder to justify the radical shift in the balance of powers to imple-ment preventive policies. The state apparatus would continue to function as usual and every branch of power would still exercise only its constitutionally established powers. Therefore, preventive policies in the name of national security would remain in the hands of the executive predominantly, but at the same time militant democracy rationale will subject it to the external scrutiny of the judiciary. Judicial interference in each and every case is not necessary to ensure proper exercise of the executive tasks; however, mere awareness of the existence of a review mechanism could put some pressure on law enforcement agencies to act in accordance with established guarantees. Militant democracy logic, applied properly, would allow for the exercise of preventive policies while preserving the balance of power, including an active role of the judiciary. Moreover, militant democracy has only limited legitimacy and not every action taken by governments can be morally justified merely by dint of the rationale behind such measures – that is, the protection of democratic struc-tures. Militant democracy measures are acceptable only insofar as there are strong procedural and institutional guarantees to ensure that limitations on individual rights and freedoms are not misused in the name of protecting democratic structures. The negative impact of various national security measures (including those applied in a militant democracy fashion) on indi-viduals can be quite dramatic in some cases. Thus, it is generally noted that constitutional and legislative norms on human rights have the potential to counteract such policies78 and that individual rights ‘should be protected as a central and constant feature of the modern democratic state’.79 This, however, seems to be uneasy to secure in Australia, where protection of human rights is not institutionalised80 and where, unlike in other Western democracies, there is no federal bill of rights.81

To date, Australia has not enacted a bill of rights and it, therefore, fails to provide protection even for some of the most fundamental freedoms, such as prohibition of torture or a general freedom of speech. Australia’s human rights framework is patchy and incomplete but nevertheless there are some express rights in the constitution and some implied rights as found by the High Court. The Australian Constitution contains few express individual rights. Eight constitutional provisions refer to ‘rights’ but only three have been interpreted as protecting an individual right.82 There is no mention in the Australian Constitution of the idea that all persons or citizens should benefit from a specified list of fundamental rights and freedoms.83 The Aus-tralian approach is unusual. The inclusion of individual rights is considered a norm in most other liberal democracies, including most common law juris-dictions. Furthermore, unlike many constitutions in the world, the Austral-ian Constitution does not offer remedies where constitutional rights are infringed or violated. There is no mechanism which would enable indi-viduals to apply to the court or any other instance to obtain an appropriate


and just remedy.84 In cases where constitutional powers have been exceeded, a plaintiff will be left with the declaration to that effect but with no further actions taken, unless there is a common law cause of action raised.85

In the absence of a bill of rights, the main check on the abrogation of human rights in Australia, including in the name of national security, ‘derives from political debate and goodwill of political leaders’86 and the newly introduced mechanism of parliamentary scrutiny under the Human Rights (Parliamentary Scrutiny) Act 2011.87 Therefore, Australia’s constitu-tional framework is missing some important safeguards of militant demo-cracy which can be found in other jurisdictions. In light of an acknowledgment of militant democracy as a potential useful tool to guide Australia in its national security policies, this can be yet another reminder that Australia is missing a crucial element in its constitutional system. In dealing with the threat of terrorism, a militant democracy rationale behind national security measures would subject such limitations to stricter tests than ‘reasonable belief ’ and other similarly relaxed standards of proof. There-fore, militant democracy would bring more legitimacy to Australia’s preven-tive measures, more confidence in governmental policies, and potentially stronger protections for individual rights and freedoms. Finally, militant democracy in its traditional interpretation is considered as an exceptional measure; for example, the dissolution of a political party is allowed only as a last resort measure. In the case of the threat of terrorism, however, this is not exactly realistic to observe. However, if states follow this logic it will make them more carefully consider the measures against the yardstick of necessity. Keeping in mind the extent of preventive measures in Australia, it would be worrying if these provisions were ever to become the everyday business of state agencies to detect and detain suspected terrorists, question them, waive fair trial guarantees, and convince the public that the nation is in a near- emergency situation. Moreover, militant democracy adopted by the state as a guiding theme in the so- called ‘war on terror’ will force the state to offer stronger justifications for its anti- terror laws, includ-ing when adopting new laws or extending the operation of current ones. It is not feasible to require states to prove the imminence of the threat itself before implementing anti- terrorism policies; however, a more balanced solution for national security versus commitment to democratic rules should be sought. Militant democracy appears to be a relevant framework for Australia’s anti- terrorism policies. Adopting it as a guiding principle would relocate the existing policy within the regime of constitutional normalcy where the shift in balance of powers is minimal, rights limitations are accompanied by all possible procedural guarantees, and the government is obliged to provide justifications for its actions and policy with stronger arguments than mere reference to secret information and acts of terrorism committed abroad. If militant democracy is to guide Australia in its national security policies, it will need to make the entire regime more compatible with major


democratic principles. As a result, Australia will be able to more strongly demonstrate its true commitment to the rule of law, human rights values and justice, even during times of stress, such as when there exists a threat of terrorism.

Notes

1 See Index to National Australian Convention Debates, 22 March–5 May 1897, avail-able at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes; db=CONSTITUTION;id=constitution%2Fconventions%2F1897-1069; orderBy=customrank;page=0;query=first%20session%20Dataset%3Aconventions; rec=0;resCount=Default, accessed 30 June 2014; 2–24 September 1897, available at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv= yes;db=CONSTITUTION;id=constitution%2Fconventions%2F1897-1090;orderBy=customrank;page=0;query=second%20session%20Dataset%3 Aconventions;rec=0;resCount=Default, accessed 30 June 2014; 20 January–17 March 1898, available at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;adv=yes;db=CONSTITUTION;id=constitution%2Fconventions%2 F1898-1133;orderBy=customrank;page=0;query=third%20session%20Dataset%3Aconventions;rec=0;resCount=Default, accessed 30 June 2014.

2 On the scope of defence power, see David P Derham, ‘The Defence Power’, in Rae Else- Mitchell (ed.), Essays on the Australian Constitution, 2nd edn (Law Book Com 1961), 157; Geoffrey Sawer, ‘Defence Power of the Commonwealth in Time of Peace’ (1952–1954) 6 Res Judicata, 214; Geoffrey Sawer, ‘The Defence Power of the Commonwealth in Time of War’ (1946) 20 Australian Law Journal, 295.

3 Anthony Blackshield and George Williams, Australian Constitutional Law and Theory. Commentary and Materials (The Federation Press 2014), 845.

4 Ibid. 5 For example, the Preamble of the Communist Party Dissolution Act 1950 (Cth)

explicitly refers to the powers of the ‘Parliament to make laws for the peace, order and good government of the Commonwealth with respect to the naval and military defence of the Commonwealth and of the several States’.

6 For a detailed account, see Andrew Lynch, Nicola McGarrity, and George Wil-liams, ‘Lessons from the History of the Proscription of Terrorist and Other Organisations by the Australian Parliament’ (2009) 13 Legal History, 25.

7 Andrew Lynch, Nicola McGarrity, and George Williams, ‘The Proscriptions of Terrorist Organisations in Australia’ (2009) 37 Federal Law Review, 1.

8 Lynch, McGarrity, and Williams above n 6, 28. 9 Ibid. 31.10 For detailed analysis of the Australian response to communism see, for example,

Frank Cain and Frank Farrell, ‘Menzies’ War on the Communist Party, 1949–1951’, in Ann Curthoys and John Merritt (eds), Australia’s First Cold War, 1945–1953 (Allen & Unwin 1984), vol. 1, 109; Roger Douglas, ‘Cold War Justice? Judicial Responses to Communists and Communism, 1945–1955’ (2007) 29 Sydney Law Review, 43.

11 s 9, Preamble, The Communist Party Dissolution Act 1950 (Cth).12 See, for example, Andrew Lynch and George Williams, What Price Security?

Taking Stock of Australia’s Anti- Terror Laws (UNSW Press Book 2006), 41–58;


Clive Walker, ‘The Reshaping of Control Orders in the United Kingdom: Time For a Fairer Go, Australia!’ (2013) 37 Melbourne Law Review, 143; Andrew Lynch, ‘Thomas v. Mowbray. Australia’s “War on Terror” Reaches the High Court. Case Note’ (2008) 32 Melbourne University Law Review 2008; Geoffrey Lindell, ‘The Scope of the Defence and Other Powers in the Light of Thomas v. Mowbray’ (2008) 10(3) Constitutional Law and Policy Law Review (Newsletter) 1.

13 Thomas v. Mowbray [2007] 233 CLR 307.14 Nicole Rogers and Aidan Ricketts, ‘Fear of Freedom: Anti- Terrorism Laws and

the Challenge to Australian Democracy’ (2002) 7 Singapore Journal of Legal Studies, 167.

15 Ibid. 167.16 Ibid. 167–8.17 Ben Saul, ‘Terrorism as Crime or War: Militarising Crime and Disrupting the

Constitutional Settlement?’ (2008) 19 Public Law Review, 21.18 Jabbour v. Thomas [2006] FMCA 1286 (2006).19 It was a special case, an adjunct to proceedings involving the original jurisdiction

by the court, but not an appeal (for details, see Hector Pintos- Lopez and George Williams, ‘Enemies Foreign and Domestic: Thomas v. Mowbray and the New Scope of the Defence Power’ (2008) 27 University of Tasmania Law Review, 95.

20 (1) That there was a violation of Chapter III of the Constitution in terms of con-ferral on a federal court of non- judicial powers to decide on the imposition of the control order; (2) that the exercise by federal courts of judicial power while issuing control orders would be in a manner contrary to Chapter III; (3) That there was an absence of legislative powers (either expressed or implied) to enact laws establishing the control order regime. For details, see Lynch, above n 12.

21 Lindell above n 12, 1.22 Ibid.23 Oscar Roos, ‘Alarmed, but not Alert in the “War on Terror”? The High Court,

Thomas v. Mowbray and the Defence Power’ (2008) 15 James Cook University Law Review, 176.

24 Ibid. 109.25 George Williams, ‘A Decade of Australian Anti- Terror Laws’ (2011) 35 Mel-

bourne University Law Review, 1139.26 Ibid. For a detailed account of the history of terrorism laws in Australia, see

Jenny Hocking, Terror Laws: ASIO, Counter- Terrorism and the Threat to Democracy (UNSW Press 2004).

27 Williams above n 25, 1144 and George Williams, ‘The Legal Legacy of the “War On Terror” ’ (2013) 12 Macquarie Law Journal, 3.

28 Williams above n 25, 1137.29 Australian Security Intelligent Organisation, ‘About ASIO: Overview’, http://

asio.gov.au/About- ASIO/Overview.html, accessed 30 June 2014.30 For example, the Howard government allocated A$232 million to intelligence

agencies in general and A$131 million to ASIO in particular following the ASIO (Terrorism) Amendment Act 2003 (Cth); see Sarah Sorial, ‘The Use and Abuse of Power and Why We Need a Bill of Rights: the ASIO (Terrorism) Amendment Act 2003 (Cth) and the Case of R v. Ul- Haque’ (2008) 34 Monash University Law Review, 403.

31 Prior to 11 September 2001, ASIO powers and methods of work were regulated by the Australian Security Intelligence Organisation Act 1979. Shortly after September 11,


the Howard government initiated and introduced to the parliament on 21 March 2002 a Bill amending the 1979 Act.

32 For more details on the activities of the 41st Parliament (November 2004–December 2005) Parliamentary Joint Committee on ASIO, ASIS and DSD, see www.aph.gov.au/parliamentary_business/committees/house_of_repre-sentatives_committees?url=pjcaad/reports.htm, accessed 30 June 2014.

33 Australian Human Rights Commission, A Human Rights Guide to Australia’s Counter- Terrorism Laws (2008), available at www.humanrights.gov.au/humanrights-guide- australias-counter- terrorism-laws#1, accessed 30 June 2014.

34 Australian Security Intelligence Organisation Amendment (Terrorism) Act (2003) (Cth).

35 Enacted provision does not permit detention of children under the age of 16 and provides special rules for those aged 17–18. Also, enacted provision allows having lawyer of choice. For a detailed account of the changes to ASIO’s powers during the parliamentary deliberation, see Keith D Ewing and Joo- Cheong Tham, ‘Limitations of a Charter of Rights in the Age of Counter- Terrorism’ (2007) 31 Melbourne University Law Review, 480.

36 Australian Security Intelligence Organisation Legislation Amendment (Ter-rorism) Act 2003 (Cth), Division 3, Part III.

37 Australian Security Intelligence Organisation Act (1979) (Cth) as amended, Section 34D paragraph 4(a).

38 Australian Security Intelligence Organisation Act (1979) (Cth) as amended, Section 34ZS.

39 Announced by the Prime Minister after an internal review of terrorism legisla-tion. For further details, see www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Browse_by_Topic/TerrorismLaw/legislativedev#2005.

40 The Anti- Terrorism Act (No. 2) (2005) (Cth).41 For general information on control orders see, for example, Tamara Tulich, ‘A

View Inside the Preventive State: Reflections on a Decade of Anti- Terror Law’ (2012) 21(1) Griffith Law Review, 209.

42 Lynch and Williams above n 12, 42.43 Criminal Code Act (1995) (Cth), Sections 104.2 paragraph 2 (a).44 Ibid. Sections 104.2 paragraph 2 (b).45 Ibid. Sections 104.4 paragraph (1)(d).46 Ibid. Section 104.2 paragraph 2 (a).47 Ibid. Subdivision D.48 Ibid. Sections 104.14.49 The mechanism of control orders was introduced in the UK with the enactment

of the Prevention of Terrorism Act (2005) (UK). For more details, see Walker above n 12; Bronwen Jaggers, ‘Anti- Terrorism Control Orders in Australia and the United Kingdom: a Comparison’ (2008) 29 Australian Parliamentary Library Research Paper. Also see reports on the control orders of the UK Independent Reviewer of Terrorism Legislation, available at https://terrorismlegislationre-viewer.independent.gov.uk/category/reports/tpims- control-orders/, accessed 30 June 2014.

50 See further Jaggers above n 49.51 The Anti- Terrorism Act (No. 2) (2005) (Cth).52 Criminal Code Act (1995) (Cth), Sections 105.1 (a) and (b).


53 For example, Terrorism (Police Powers) Act 2002 (NSW) s 26K(2).54 For details, see Criminal Code Act (1995) (Cth), 105.2.55 To order detention or punishment after someone has been found guilty of a

crime would be a classical example of judicial power exercise, while the nature of the preventive detention order and procedure to impose it does not fit into the traditional domain of the Australian judiciary. This is why the construction of a judge acting in his or her personal capacity was introduced to the PDO regime (otherwise it would require granting additional powers to the judiciary).

56 Some commentators mention that these two conditions do not seem to be neces-sary and the law could easily reach its goals with the latter only; see Lynch and Williams above n 12, 49.

57 Criminal Code Act (1995) (Cth), Sections 105.4 paragraph (4) (a).58 Ibid. Sections 105.4 paragraph (4) (b).59 Ibid. Sections 105.4 paragraph (4) (c).60 Ibid. Sections 105.4 paragraph (6).61 Ibid. Section 105.35 paragraph 1.62 Ibid. Section 105.36.63 Lynch and Williams above n 12, 53.64 Crimes Act 1914 (Cth) Part IIA.65 For details, see Lynch, McGarrity, and Williams above n 6 and Lynch, McGar-

rity, and Williams, above n 7; Nicola McGarrity, ‘Review of the Proscription of Terrorist Organisations: What Role for Procedural Fairness?’ (2008) 16 Austral-ian Journal of Administrative Law 45; Oscar Roos, Benjamin Hayward, and John Morss, ‘Beyond the Separation of Powers: Judicial Review and the Regulatory Proscription of Terrorist Organisations’ (2010) 35 University of Western Australia Law Review, 81; Russell Hogg, ‘Executive Proscription of Terrorist Organisa-tions in Australia: Exploring the Shifting Border between Crime and Politics’, in Miriam Gani and Penelope Mathew (eds), Fresh Perspectives on the ‘War on Terror’ (ANU Press 2008), 297.

66 Advocacy is defined as

directly or indirectly counselling, urging or providing instructions on doing terrorism act and directly praising terrorism in circumstances where there is a risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment that the person might suffer) to engage in a terrorist act.

67 Criminal Code Act (1995) (Cth), Section 102.1 paragraph 2 (a)(b).68 Joo- Cheong Tham, ‘Causalities of the Domestic War on Terror’ (2004) 28 Mel-

bourne University Law Review, 518.69 Banned organisations are: Abu Sayyaf Group – listed 14 November 2002, re-

listed 5 November 2004, 3 November 2006, and 3 November 2008; Al- Qa’ida (AQ) – listed 21 October 2002, re- listed 1 September 2004, 26 August 2006, 8 August 2008, and 22 July 2010; Al- Qa’ida in the Arabian Peninsula (AQAP) – listing to commence after disallowance period; Al- Qa’ida in Iraq (AQI) (formerly listed as Al- Zarqawi and TQJBR) – listed 2 March 2005, re- listed 17 February 2007 and 3 November 2008; Al- Qa’ida in the Islamic Maghreb (AQIM) – listed 14 November 2002, re- listed 5 November 2004, 3 November 2006, 8 August 2008, and 22 July 2010; Al- Shabaab – listed 21 August 2009; Ansar al- Islam (formerly known as Ansar al- Sunna) – listed 27 March 2003, re- listed 27 March


2005, 27 March 2007, and 17 March 2009; Asbat al- Ansar (AAA) – listed 11 April 2003, re- listed 11 April 2005, 31 March 2007, and 17 March 2009; Hamas’s Izz al- Din al- Qassam Brigades – listed 9 November 2003, re- listed 5 June 2005, 7 October 2005, 10 September 2007, and 8 September 2009; Hiz-ballah External Security Organisation – listed 5 June 2003, re- listed 5 June 2005, 25 May 2007, and 15 May 2009; Islamic Army of Aden (IAA) – listed 11 April 2003, re- listed 11 April 2005, 31 March 2007, and 17 March 2009; Islamic Movement of Uzbekistan – listed 11 April 2003, re- listed 11 April 2005, 31 March 2007, and 17 March 2009; Jaish- e-Mohammed (JeM) – listed 11 April 2003, re- listed 11 April 2005, 31 March 2007, and 17 March 2009; Jamiat ul- Ansar (formerly known as Harakat Ul- Mujahideen) – listed 14 November 2002, re- listed 5 November 2004, 3 November 2006, and 3 Novem-ber 2008; Jemaah Islamiyah (JI) – listed 27 October 2002, re- listed 1 September 2004, 26 August 2006, 8 August 2008, and 22 July 2010; Kurdistan Workers Party (PKK) – listed 17 December 2005, re- listed 27 September 2007 and 8 September 2009; Lashkar- e Jhangvi (LeJ) – listed 11 April 2003, re- listed 11 April 2005, 31 March 2007, and 17 March 2009; Lashkar- e-Tayyiba – listed 9 November 2003, re- listed 5 June 2005, 7 October 2005, 10 September 2007, and 8 September 2009; Palestinian Islamic Jihad – listed 3 May 2004, re- listed 5 June 2005, 7 October 2005, 10 September 2007, and 8 September 2009. Available online at www.nationalsecurity.gov.au/Listedterroristorganisations/Pages/default.aspx, accessed 26 October 2014.

70 A Human Rights Guide to Australia’s Counter- Terrorism Laws above n 33.71 Criminal Code Act (1995)(Cth), Section 102.1 (a).72 For a full list of Australia’s anti- terrorism measures, see Williams above n 25.73 For example, the ASIO Legislation Amendment Bill (2003) was introduced to par-

liament on 27 November 2003 and passed only eight days later. For detailed information on the passage of the Bill, see Parlinfo Search, Parliament of Aus-tralia web page at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;orderBy=alphaAss;query=%28Dataset%3AbillsPrevParl%20SearchCategory_P h r a s e % 3 A % 2 2 b i l l s % 2 0 a n d % 2 0 l e g i s l a t i o n % 2 2 % 2 0 D a t a s e t _P h r a s e % 3 A % 2 2 b i l l h o m e % 2 2 % 2 9 % 2 0 T i t l e % 3 A % 2 2 A S I O % 2 0Legislation%20Amendment%20Bill%202003%22;rec=0, accessed 30 June 2014; Criminal Code Amendment (Hamas and Lashkar- e-Tayyiba) Bill (2003) was passed even quicker – only two days after it was introduced (and Senate was recalled for the purpose of passing the Bill). For detailed information on the passage of the Bill, see Parlinfo Search, Parliament of Australia web page at http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;orderBy=alphaAss;query=%28Dataset%3AbillsPrevParl%20SearchCategory_Phrase%3A%22bills %20and%20legislation%22%20Dataset_Phrase%3A%22billhome%22%29% 20Title%3A%22Criminal%20Code%20Amendment%20%28Hamas%20and% 20Lashkar-e- Tayyiba%29%20Bill%202003%22;rec=0, accessed 30 June 2014.

74 Commentators and scholars conclude that it ‘created fear and anxiety in Austral-ia’s Muslim communities’; see, for example, Andrew Lynch and Nicola McGar-rity, ‘Counter- Terrorism Laws. How Neutral Laws Create Fear and Anxiety in Australia’s Muslim Communities’ (2008) 33 Alternative Law Journal, 225. And anti- Muslim bias in Australian media is growing, together with the number of people reported to experience an increase in racism; see, for example, Barbara Perry and Scott Poynting, ‘Inspiring Islamophobia: Media and State targeting of


Muslims in Canada since 9/11’ 2006 TASA Conference Paper (University of Western Australia & Murdoch University), 156. Moreover, the Australian Arabic Council’s racial hatred telephone hotline registered 20 times more complaints in a month following September 11 (see John von Doussa, ‘Reconciling Human Rights and Counter- Terrorism-a Crucial Challenge’ (2006) 13 James Cook Uni-versity Law Review, 122.

75 For details, see Jaggers above n 49.76 For details, see Doussa above n 74, 122.77 For a review of Australia’s counter- terrorism legislation to date, see the Attorney-

General’s web page at www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/ReviewofAustraliascounter- terrorismlaws.aspx, accessed 30 June 2014.

78 Ewing and Tham above n 35, 668; Walker above n 12; Aileen Kavanagh, ‘Con-stitutionalism, Counterterrorism, and the Courts: Changes in the British Con-stitutional Landscape’ (2011) 9 International Journal of Constitutional Law, 172.

79 Fiona De Londras and Fegral F Davis, ‘Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms’ (2010) 30 Oxford Journal of Legal Studies, 45.

80 See, for example, Nicola McGarrity and George Williams, ‘Counter- Terrorism Laws in a Nation without a Bill of Rights: the Australian Experience’ (2010) 2 City University of Hong Kong Law Review, 45–66, and Williams above n 25, 1169.

81 This, however, should not be interpreted in such a way as to suggest that demo-cracies with a constitutional or statutory bill of rights do not have any issues protecting their statehood.

82 George Williams and David Hume, Human Rights under the Australian Constitu-tion, 2nd edn (Oxford University Press 2013), 111–12. Provisions that can be conceptualised as capable of protecting rights are ss 41, 44, 51 (xxxi), 74, 78, 84, 100, 117.

83 Ibid. 113.84 Such remedies are available, for example, under the Canadian Charter of Rights

and Freedoms (1982); Human Rights Act 1998 (UK); South African Constitu-tion (s.38); and the New Zealand Bill of Rights Act (1990). However, section 75 (v) of the Australian Constitution allows individuals to apply for certain rem-edies that are normally available in cases of jurisdictional error, which can some-times be enlivened by a breach of human rights – for example, where the principle of legality is invoked.

85 Williams and Hume above n 82, 156.86 McGarrity and Williams above n 80, 66.87 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The Act established a

Parliamentary Joint Committee on Human Rights to perform the following functions (s 7): (a) to examine Bills for Acts, and legislative instruments, that come before either House of the Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue; (b) to examine Acts for compatibility with human rights, and to report to both Houses of the Parlia-ment on that issue; (c) to inquire into any matter relating to human rights which is referred to it by the Attorney- General, and to report to both Houses of the Parliament on that matter.

Part IV

Militant democracy and the principle of secularism

9 ‘Militant secularism’1 in Turkey

As has been mentioned previously, both the constitution of 1961 and the current constitution of 1982 contain militant democracy provisions and, accordingly, Turkey has considerable experience with the prohibition of political parties: the Turkish Constitutional Court decided to shut down six parties under the 1961 constitution and 18 under the current constitution of 1982.2 The Constitution of Turkey is, to a large extent, ‘a product of a military coup’ and it still reflects some features of authoritarian, statist, and tutelary character.3 An analysis of the jurisprudence of the Constitutional Court in party prohibition cases demonstrates that ‘one of the most important areas of remaining democratic deficit concerns the low level of protection granted to political parties’.4 Many rulings on political parties’ dissolution have been based on alleged violations of the principle of secular-ity established in the constitution. Such rulings represent an excellent oppor-tunity to test the claim that, in certain instances, militant democracy extends beyond its traditional area of application. In addition, Turkey represents a challenge to the generalised statement that militant democracy predominantly targets minor or unpopular political groups in order to de- intensify or silence the political debate. The Turkish example clearly demon-strates that even parties with substantial popular support, such as the Refah Partisi (‘Refah’),5 can become targets of the party dissolution procedure. Notably, militant democracy in Turkey has been extended to the debate on the wearing of headscarves in public spaces, which is another aspect of Turkish militant democracy to be explored in this chapter.

9.1 Militant democracy in Turkey: ‘the big dream’, constitutional provisions, and political parties

On 29 October 1923, the Republic of Turkey was founded as a state based on the principle of secularism (laiklik or laicism),6 as opposed to the previous Ottoman state, which existed for over six centuries and was based on Islamic religious law.7 The founders of the new republic proclaimed complete discontinuation from the legacy of the Ottomans and were determined to build a new state and society through the use of radical reforms and

170 Militant democracy and secularism

transformation.8 Turkey’s ‘big dream’ to attain ‘the modernity and civilisa-tion of the West’9 was introduced by Mustafa Kemel Pasha (known as Ataturk) in the 1920s. Ataturk’s reforms in the social, political, and legal spheres were launched a long time ago but contemporary Turkish politics is still focused on leading the country towards the ‘highest level of civilisation and prosperity’10 as was advocated by the 1920s national hero. To achieve the modernity and civilisation of the West, Turkey committed to serious and substantive changes in its legal, political, and social regimes. First, the Republic of Turkey was established in 1923 as a secular state under the leadership of Ataturk.11 The Sultanate and Caliphate were abolished, Sharia Law was replaced with laws based on European legal traditions, and the Arabic script was even replaced by the Latin alphabet.12 Religious schools and sects were closed down and it was expected that the population would gradually absorb and accept the changes being implemented by govern-mental orders. Such orders and political measures were strongly supported in Turkey by the military, which has remained a powerful and influential actor in all political developments and events in the country.13 However, different social and political movements expressed disagreement with the changes and sought to challenge the ideals of the society that Ataturk and his followers were promoting and imposing on the population of Turkey. Unsurprisingly, such movements were perceived as threats to Turkish democracy. For example, Kurdish political movements have been always seen as posing a threat to the territorial integrity and political unity of the state.14 At the same time, Islamic political groups have for a long time been perceived as threatening the laicism principle in trying to impose Sharia order. As a result, since the early 1990s, political parties with Kurdish or Islamic polit-ical agendas have operated and functioned under the normalised threat of being banned.15

Ataturk’s ‘big dreams’ found clear expression in the country’s current constitution of 1982. The official state policy of laicism is reflected in Article 1 and 2, according to which Turkey shall be a republic, and a democratic, secular16 and social state governed by the rule of law. Article 2 also mentions that the Republic of Turkey is loyal to the nationalism of Ataturk, based on the fundamental tenets set forth in the Preamble. Further, Article 3 states that the Turkish state, with its territory and nation, is an indivisible entity. In short, provisions on the secular character of the state and its territorial integrity appear in the very first Articles of the constitution; this structure has strong symbolism, and reinforces the ideas of Ataturk as the leading goals and objectives of the modern Turkish state. This factor plays a very important role in understanding how the militant democracy debate has been shaped in Turkey. The Constitution of Turkey endorses some of the traditional features of militant democracy states outlined in Chapter 3. First of all, Article 4 pro-tects certain characteristics of the state from amendment.17 Turkey is a republican, democratic, secular, and social state governed by the rule of law,

‘Militant secularism’ in Turkey 171

it is an indivisible entity based on the principle of secularism; and these qualities cannot be changed under the current constitution.18 To enhance the importance of the principle of secularism further, the Preamble to the consti-tution states that ‘sacred religious feelings shall absolutely not be involved in state affairs and politics’.19 The non- amendable status of the constitutional norms on the unity of the nation and the secular character of the state has contributed to the establishment of quite an aggressive regime jealously pro-tecting these features. For example, in most of the party dissolution cases, the Turkish government has justified its actions by the need to protect exactly these two qualities of the Turkish Republic. The practical implementation of these provisions is such that it does not allow much political dialogue on matters related to religion and minority protection (except in respect of minorities mentioned in the Lausanne Treaty of 1923).20 Political parties almost automatically become targets of the party prohibition provisions if they advocate for better protection of minority rights or a wider presence of Islam in the public sphere. Up to 2004, nine out of 18 party bans related to the state’s concern that accommodating the concerns of the Kurdish people would pose a threat to the unity of the state.21 Notably and regrettably, political parties with the abovementioned agendas have adjusted to these circumstances and developed a so- called ‘spare party’ system,22 a process where a new party is created as a placeholder so that the main party it represents can resume political activities in case it is banned. This is by no means a desirable situation for the political environ-ment and the stability of democracy in general. In addition, it means that the Constitutional Court, vested with the power to shut down political parties, will be dealing with party prohibition cases on a regular basis, while it patently has other important work to do. A proliferation of cases on party prohibition may also have the effect of making the Constitutional Court gradually less interested in the justification and grounds for dissolution advanced by the government. As a result, it might lead to a more relaxed and generalised approach to party prohibition cases without taking into account the individual features and peculiarities of each individual case. Dealing with party prohibition cases in a manner that renders it the usual business of the Constitutional Court does not add anything to the protection and support of political pluralism and the freedoms of speech and associ-ation. From these perspectives, Turkey provides a valuable contribution to the general debate on the effectiveness of the procedure to ban political parties outlined in Chapter 2. A further manifestation of militant democracy in Turkey is expressed in Chapter 4, Section III of the constitution,23 regulating the activities of polit-ical parties. Some provisions represent traditional norms and guarantees for political parties, such as the declaration of freedom to form political parties without prior permission, the importance of political parties to democracy generally, and the duty of the state to provide political parties with financial support.24 Further, Article 68 of the constitution requires that


the statutes and programs, as well as the activities of political parties, should not be in conflict with the independence of the state, its indivis-ible integrity with its territory and nation, human rights, the principles of equality and rule of law, sovereignty of the nation, the principles of the democratic and secular republic; they should not aim to protect or establish class or group dictatorship or dictatorship of any kind, nor shall they incite citizens to crime.25

In addition, the same article imposes a ban on

persons occupying a certain position from being members of political parties (judges and prosecutors, members of higher judicial organs including those of the Court of Accounts, civil servants in public insti-tutions and organizations, other public servants who are not considered to be labourers by virtue of the services they perform, members of the armed forces and students who are not yet in higher education institutions).26

Highly general guarantees of freedom of political parties and their import-ance for democracy are well- known staples of constitutional theory and prac-tice. However, the Constitution of Turkey contains very detailed provisions on political parties, while similarly detailed norms are usually considered to belong to ordinary legislation. In addition to the rules listed above, the Constitution of Turkey contains a separate article on principles and rules to be observed by all political parties27 and states that the decision to dissolve a political party permanently may be made only if ‘it is established that the party in question has become a centre for the execution of prohibited activ-ities’. Furthermore, Article 69 prescribes extensive consequences for the banned party and its members.28 The drastic consequences of party dissolu-tion – with a concomitant five- year ban from politics for its members – is probably one of the reasons that most of the dissolved parties decided to seek protection in the ECHR. The political environment in Turkey is considered by many to be unhealthy due to its frequent party prohibition practices. The democratic character of the Turkish state has long been questioned and debated both inside and outside the country; the Turkish government is being blamed often for imposing ‘narrow limits’ within which political activities can take place. This in turn appears to result from the broad scope of the constitu-tion’s regime for its own protection, and has negative consequences for the freedom to create and participate in the activities of political parties. However, the constitution itself and its written norms are not enough to conclude that a strict regime substantially limiting freedoms of political parties necessarily had to be established. To a large extent, it depends on the interpretation given to those norms in practice. Unfortunately, Turkey has initiated a move towards the narrowest possible regime, and provisions


regulating political parties’ activities have received an excessively rigid inter-pretation.29 Not only have cases to dissolve political parties been initiated too often, but such initiatives have been upheld by the Constitutional Court in a majority of cases. For this reason, the Constitutional Court of Turkey is often criticised for its selective activism in protecting civil liberties through its judgments.30 The current governing party and its leader, Prime Minister Erdogan, attempted a constitutional change to make it harder to ban polit-ical parties. But the proposal to amend Article 69 of the constitution was rejected by parliament and was indeed the only amendment dropped off the 2010 amendments package.31

9.2 Protecting secularism in Turkey: the dissolution of political parties and the headscarf ban – reasons and concerns

Protecting secularism in Turkey: the dissolution of political parties

Militant democracy in Turkey should be analysed with reference to the wider range of cases involving claims of protecting the secular character of the state, rather than merely cases on political party dissolution alone. The deci-sions of the Constitutional Court of Turkey on the shutting down of polit-ical parties can be divided into two categories: dissolution of parties advocating for solutions to minority protection issues (mainly Kurdish) and dissolution of parties banned for alleged violations of the principle of secu-larism. This latter group represents a particular interest for the debate on militant democracy as applied to the protection of the principle of secular-ism. The first group of cases is of no less importance or interest for com-parative constitutional law analysis; however, it is best situated within the traditional paradigm of militant democracy application already discussed in Chapters 4 and 5 of this book. The Refah Party32 case supports one of the book’s claims on the extension of militant democracy, but also reveals a number of theoretical and practical pitfalls of militant democracy as they appear in practice. The Refah Party was not a new player in Turkish politics, but rather had existed under dif-ferent names since the late 1960s (it is one of the examples of the ‘spare party’ system mentioned above).33 The latest version of the Refah Party, with its primarily Islamic agenda, appeared in 1983. Its first participation in the general election of 1987 was not successful and the party achieved only 7.1 per cent of the popular vote, therefore failing to be represented in parliament (Turkey then had a 10 per cent threshold requirement for parties seeking representation in the National Assembly). In the 1991 elections, the party did better and gained 62 out of 450 seats in parliament, and after the 1995 general elections became the largest single block in parliament, with 21.5 per cent of the popular vote (resulting in 158 seats out of 450).34 In June


1996, Refah formed a coalition government with the (centre- right oriented) True Path Party, and thus came to power. In May 1997, proceedings to dis-solve the party were initiated, and the party was accused of becoming a ‘centre of activities’ contrary to the principles of secularism (which is pro-hibited by Article 68 of the constitution). On January 1998, the party was dissolved and its assets were transferred to the Treasury.35 The case to outlaw the Refah Party resulted from the party’s attempts to introduce plurality into the legal system which, it was argued, would lead to discrimination on the grounds of religion; to introduce Islamic law (Sharia) as the ordinary law and as the law applicable to the Muslim community; and to promote the concept of jihad, a holy war to fight for the complete domination of Islam in society. The Constitutional Court judgment sparked extensive public debate and was widely commented on by domestic and international politicians and scholars. For example, it was argued that the charges against the Refah Party were based mainly on the activities and speeches of the party leaders. The Court analysed these at length and decided they were contrary to the prin-ciple of secularism. At the same time, the Court never looked at the party programme, which would ordinarily be an expected piece of evidence to scrutinise in the attempt to establish a party’s true intentions and goals. Both the political party programme and the statements and activities of its leaders can be considered as equally important to decide on a party’s fate, and a detailed analysis of the party constitution would add even more legiti-macy to the dissolution, especially where the government can prove that the party’s intentions were contradictory to the constitution. In the full spirit of the Turkish Constitution, its preamble and Ataturk’s idea of a ‘dream society’, the Constitutional Court observed that secularism is ‘one of the indispensable conditions of democracy’36 and it is safeguarded in Turkey mainly because of the ‘country’s historical experience and the specific fea-tures of Islam’.37

The application of militant democracy to prevent events and tragedies of the past from re- occurring is not unusual practice and often it is one of the main reasons for the introduction of the doctrine into a national constitu-tional order. However, the case of Turkey is quite distinct and instructive for various aspects of the debate on militant democracy. First of all, as was already mentioned, Refah was one of many political parties (more precisely, the fifteenth party) to be dissolved in Turkey since the inception of its republic. Therefore, neither the Turkish government nor the judiciary were able to justify the widely accepted practice of compulsory dissolution of political parties as a measure of last resort only.38 The number of banned political parties in Turkey gives the impression that such prohibition had become normal practice in Turkey. Moreover, while most of the previous parties were banned before they managed to pursue any activities and gain any popular support, Refah was the ruling party when it was dissolved. It was the largest political party in Turkey at the time, claiming more than


four million members, 158 seats in the National Assembly, and 35 per cent of the total votes in the local elections of November 1996.39 Furthermore, the charges against the party were based only on individual statements of the party leaders (and not the party’s activities at large), with not a single word mentioned in the judgment about the party’s programme. The Refah Party case is relevant for this particular chapter because the Constitutional Court in its judgment concentrated on the principle of laicism (proclaimed in the preamble of the constitution as one of the founda-tions of the state) and the necessity to protect it through banning this par-ticular political player. According to the Constitutional Court of Turkey, laicism is the ‘basis of the vision of democracy that develops with the enlightenment of science, nation, independence, national sovereignty and the ideal of humanity’.40 The Court pointed out the necessity to keep reli-gion away from politics for the sake of saving religion from being used as a tool in the hands of the administration, and to ensure its proper place in the conscience of the people.41 The Court’s distinction between everyday life and politics was in line with arguments made in its earlier decisions, such as the People’s Labor Party (HEP) case.42 However, while in the HEP case the issue of language and ethnic diversity was detached from politics and placed in the domain of culture, this time the Court relocated that distinction to the field of religion. The Court approved the idea that it is necessary to elim-inate culture and religion from public debate. In this respect, it is fully legitimate to question whether the judiciary is able to draw a clear line between culture and politics, and whether this ought to be a judicial task in general. Based on this distinction and interpretation of the laicism principle, the Constitutional Court concluded that the Refah Party had to be excluded from the domain of politics. Moreover, the judgment concluded that Refah threatens not only the principles of laicism but also the unity of the nation. According to the Court, unity can only be achieved if social phenomena emerging from the cultural domain are preserved there, and are not allowed to enter the domain of politics. Refah’s intention to bring religion into pol-itics was perceived as a threat to the unity of the state and therefore necessi-tated the party’s dissolution. The Constitutional Court made it clear that religion should be completely banned from the public debate, and from the language of the judgment it follows that any political party mentioning reli-gion in its programme or in the speeches of its leaders is a potential threat to the principle of secularism and unity of the state and, therefore, for Turkish democracy in general. It is generally accepted that Turkey has experienced the presence of reli-gious fundamentalism throughout its history.43 Therefore, someone might argue that the nation has reasonable grounds to introduce strong protections in the national constitutional order to prevent history from repeating itself and to accord strong safeguards to the unity of the state. However, it is hard to imagine that a true democracy can achieve complete and permanent unity


within its population by simply denying any religious and ethnic identity claims, as now occurs in Turkey. Another important fact to keep in mind is that Turkey is a predominantly Muslim state, which makes it even harder for the majority of the population to accept the policy of complete detach-ment of religion from politics. The task imposed on national governments to accommodate religious beliefs and views of the different religious groups is never an easy one. However, it does not mean that the state can simply dis-regard them entirely and, moreover, ban them from even being discussed in the political domain, all in the name of the protection of democracy. An intent to protect the constitutional order is not tantamount to an unwilling-ness to engage in dialogue and compromise and to find a fair balance between religious demands and the survival of democracy. To protect reli-gion from the influence of the state and to not allow religion to overtake the state’s business are both intentionally accepted constitutional practices. Nevertheless, religious and ethnic diversity are not factors that should be excluded from the domain of politics entirely. The politics of disregarding them does not help the state’s mission of establishing a stable democratic order. The Refah Party case and its outcome was put to the test again in 2008 when the governing AK Party (the Justice and Development Party) faced the prospect of being shut down. The AK Party case was called a ‘victory for Turkish Democracy’ by commentators, AK party leaders, and foreign politi-cians.44 Like Refah Party in 1998, the AK Party was accused of violating the principle of secularism. The party became a target of the compulsory disso-lution procedure due to its move to lift the existing ban on wearing the headscarf. In February 2008, the Turkish National Assembly (Parliament) adopted a law to introduce amendments to some articles of the constitu-tion.45 The major goal of those amendments was to lift the headscarf ban imposed on university students. In October 2008, the Constitutional Court of Turkey annulled proposed amendments to the constitution as they con-flicted with the constitutional provisions on the secular character of the Turkish state.46 Proceedings to outlaw the AK Party, which has been the governing political party in Turkey since 2002, were initiated in March of 2008, shortly after the law on constitutional amendments was enacted. In July 2008, the Constitutional Court of Turkey handed down a judgment against AK Party dissolution.47 While some consider the AK Party case a victory for Turkish democracy, the episode nonetheless has some troubling moments. The party was not dissolved (the Court was one vote short of the required qualified majority of seven judges) but 10 out of the 11 judges did hold that the AK Party had become a focal point of anti- secularism activ-ities. As a result, the party was denied half of its public funding. In its judg-ment, the Constitutional Court ‘persisted in its rigid and authoritarian interpretation’48 of the notion of secularism as a constitutional principle of the Turkish Republic. This fact, combined with an absolute majority of the judges having been in favour of the AK Party’s dissolution, indicates that


‘the prohibitionist tendency’ in Turkey is still quite strong and political parties do not have the same level of protection as in the majority of modern democracies.49

The decision to ban the AK Party would have been an unprecedented event in the application of militant democracy, as the target was the govern-ing party of the state and held a significant parliamentary majority.50 It is, however, not easy to say with confidence why the Court did not vote for the dissolution: possible reasons include the need to support the progress of democracy, pressure from the international community (especially the EU), or the conclusion that lifting the headscarf ban does not mean that Islamic fundamentalism will be established overnight. However, the case gave some hope that the situation concerning political pluralism may improve with time, and that the Court will pay more attention to the justifications used by the government to convince it that parties with Islamic (and Kurdish) senti-ments automatically pose a threat to Turkish democracy, and that the inter-pretation of the irreducible core of the constitution requiring protection through militant democracy measures (which are probably over- broad at the moment) will not be extended even further. These goals should be striven towards in the future, and the dissolution of the party should be considered a measure of last resort.

Protecting secularism in Turkey: the headscarf ban

The approach adopted in Turkey to guard the principle of secularism can be considered as an example of militant democracy. The main reason to con-clude so is the justification given by the government to close down many political parties, which was accepted by the Constitutional Court: that is, the need to protect a particular quality of the state enshrined in the constitu-tion (secularism), which is a precondition for the stable democratic regime in Turkey. However, there is another dimension of militant democracy prac-tice in Turkey aimed to protect the secular character of the state: the head-scarf ban debate. This issue can and should be conceptualised in Turkey through the militant democracy lens. Such an approach provides a certain degree of support for government actions in its attempt to protect the basis of the constitutional order; but it also flags some serious problems and con-cerns as to how Turkey has handled this matter. Turkey represents one of the most fascinating case studies of the headscarf (hijab) debate.51 While it is not feasible to provide a full history of the head-scarf debate in Turkey in this book, some background information is neces-sary to understand the nature and source of the constant political tensions in Turkey since the 1980s.52 Turkey has a population of around 70 million people and is overwhelmingly Muslim (more than 90 per cent).53 In 1923 the Caliphate was abolished and Turkey (under the leadership of Ataturk) was declared a secular republic.54 The banning of the traditional Turkish head cover for men (fez) in 1925 and of the Islamic veil in 1930 was one of


the measures55 adopted in pursuit of the achievement of modernisation through the creation of a religion- free zone where all citizens would be treated equally and without any distinction on the grounds of religion (the ultimate goal of the Ataturk reforms).56 Later in 1934 a ban was imposed ‘on wearing religious attire other than in places of worship and religious cere-monies’.57 It seems that the issue of headdress was of crucial importance for the vision of the state and social order that Ataturk had in mind. For example, in the justification for the law introducing the ban of the head covers it was noted that

the issue of headgear, which is completely unimportant in and of itself, is of special value for Turkey who wants to become a member of the family of modern nations. We propose to abolish the hat worn currently, which has become a mark of difference between Turkey and other modern nations, and replace it with the hat that is the common head-gear of all modern, civilised nations.58

While the laws mentioned above did not formally target women’s attire in particular, it follows from the leader’s statement and the spirit of the laws enacted that the breakthrough should be accompanied with the promotion of the visibility of women in the public sphere. The liberation of women was supposed to be used to showcase the new image of Turkey as a whole: a state ensuring modern and civilised life for its citizens.59 The background and spirit of the modernisation led to the estab-lishment of an environment where the secular state was perceived ‘as the political agent that unveiled the female body, dressing it in accordance with secular ideals and principles so as to display Turkey’s new national identity for a Western global gaze’.60 However, in the 1980s an unexpected phenom-enon began to rise within Turkish society: young educated women began wearing the Islamic headscarf when appearing in public places, such as schools and universities. The principle of secularism has long been inter-preted in Turkey as requiring that the public sphere be protected from any religious presence. In relation to the university campus, the policy was that Islam cannot possibly exist in a place of education.61 Within a few years, the headscarf ‘went from being a controversial item of religious attire to a matter of Turkish national security’.62 The official position of the Turkish state remained the same for many years and wearing a headscarf in public univer-sities was banned through different governmental regulations and circulars.63 Moreover, in order to ‘calm down’ the rising popularity of wearing head-scarves, the National Security Council declared the headscarf

as one of the main indicators of what they called the ‘Islamic threat’ – the single most important threat to the well- being and security of the country – and called for the enforcement of a ban on the headscarf in all public places, including classrooms, universities and public offices.64


The argument of the government in support of the headscarf ban was summarised and clearly articulated in the Leyla Sahin case. This well- known and controversial case on the headscarf debate in Turkey is far from unique.65 The events leading to the long- lasting battle between a woman of Turkish nationality and her own state began in 1997 when Leyla Sahin was denied access to the lectures, tutorials, and courses in the fifth year of her university studies for wearing a headscarf.66 Later she was denied entrance to the written examination and was subjected to disciplinary proceedings by the university administration.67 In the end, Leyla Sahin had to leave her home country and finish her medical education abroad. To justify the ban on wearing headscarves imposed on Sahin and other students in Turkish univer-sities, the government claimed that it was required, amongst other things, for the purpose of upholding the principle of secularism.68 In this sense, it is easy to locate the militant democracy argument behind the headscarf ban, with the government claiming to enact such measures to preserve the established structure and particular qualities of the state. Any presence of religion in the public domain was presented to the public and inter-national community as a danger and threat to the established order (even advocating wearing a headscarf was perceived as a danger and was the main reason to outlaw The Fazilet Partisi (the Virtue Party) in 2001).69 The gov-erning party and country’s Prime Minister attempted to ‘correct’ the situ-ation with the headscarf ban on university campuses and introduced constitutional amendments on the principle of equality and the right to education. The idea was defeated when the Constitutional Court of Turkey annulled the amendments as infringing the constitutionally enshrined prin-ciple of secularism.70

It is evident that militant democracy both has the potential and is in fact being extended beyond traditional measure of political parties’ prohibition. The example of Turkey demonstrates that militant democracy logic is used by governments to address alleged threats posed by religious extremism, be it political players with a religion- related agenda or public displays of reli-gious symbols.

9.3 Militant secularism in Turkey: business as usual?

Chapter 5 indicated that the majority of the jurisprudence coming from the militant democracies of European states concerns political ideologies relata-ble to communism and fascism (especially in the early years of its practice) or supportive of separatist and nationalist movements. The case study of Turkey demonstrates that militant democracy may be utilised against a wider spectrum of political activities – and even apparently apolitical acts – such as wearing religious attire in public places. However, militant demo-cracy as practised in Turkey has some serious flaws. For this reason, it should not be considered as an ‘example to follow’ by other states in the business of protecting their democratic structures.


First, the large number of political parties closed down in Turkey within only a couple of decades appears to be unprecedented in terms of the wider European experience. Turkish activism in the business of banning political parties is in contrast with the prevailing approach elsewhere where the pro-hibition of political parties must be a measure of last resort for governments, with all procedural guarantees being upheld in order to minimise abuses by political branches seeking to suppress political dissent and eliminate polit-ical competitors. The number of banned political parties in Turkey sends a strong signal that militant democracy has been applied defectively. This conclusion can be supported by the numerous ECHR cases on party prohibi-tion decided against Turkey.71 The situation concerning party prohibition in this jurisdiction has gained the attention not only of those closely involved in monitoring and researching this subject matter, but of a wide range of international organisations, including the Council of Europe. For example, in September 2008, the Monitoring Committee of the Parliamentary Assem-bly of the Council of Europe sent a request to the Venice Commission ‘to review the constitutional and legal provisions which are relevant to the pro-hibition of political parties in Turkey’.72 The request was motivated by the move to ban the governing AK Party. It is apparent that in Turkey what should be an exceptional measure to protect democracy and its internal structures has become a standard tool, and the Constitutional Court has had to deal with party prohibition cases on a regular basis. This is partially a result of the regulatory regime outlined above, but this is not the only reason. The Turkish Constitutional Court is also partially responsible for the current situation. This institution has had multiple chances to articulate a stricter test and to interpret the regulation of party activities in such a way as to provide them broader protection. In addition, the government’s interpretation of the principle of secularism was fully endorsed by the Court, and this interpretation justifies the exclusion of any political parties with an Islamic agenda and those aiming to protect the interests of national minorities, as well as the presence of religion in public space. The case law of the Constitutional Court of Turkey on party dissolution suggests that the foundational principles of the Turkish republic cannot be debated or questioned even through peaceful democratic process. In general, the protection of the basis of the constitutional order falls within the bound-aries of militant democracy logic. However, it does not follow that the prin-ciple forming the basis of the constitutional order cannot be a subject of the political debate. It also does not follow that states can interpret constitu-tional principles in a way to ban any discussion around them. The principle of secularism and the indivisibility of the state have been artificially removed from the public conversation. This process was facilitated by the relevant constitutional provisions and jurisprudence developed by the Turkish Con-stitutional Court. The situation in Turkey is such that the constitutionally proclaimed principles of secularism and unity of the state are used for far


more than simply the protection of democracy. They are also invoked to entertain and promote Ataturk’s dreams about the ideal society. The co- opting of militant democracy measures by this hidden agenda is a misuse of the militant democracy concept. Militant democracy is a useful, practical tool to guard constitutionally recognised principles, including even the prin-ciple of secularism; however, it cannot be used as a justification to stifle debate on the role of religion and the relations between state and religious groups indefinitely. Apart from the frequent practice of banning political parties, there is another problematic aspect of militant democracy practice in Turkey, which is more apposite to the headscarf ban. As outlined in Chapter 2, a justified application of militant democracy measures assumes that the state has con-vincing arguments that the acts to be prevented are indeed posing a real threat to democracy. I believe this element is missing from the cases of party prohibition and headscarf bans in Turkey. The Constitutional Court insists on the position that religion must be kept separate from politics and that any attempts to challenge it automatically qualify as dangerous to demo-cracy. The idea of secularism, which is being shielded from any public debate, was introduced into Turkish society in the 1920s. It was dictated by the political situation and the alleged need for sudden changes in order to conform and cooperate more closely with Europe.73 Turkey wanted to con-vince its European neighbours that it was now a civilised and modern state, and the elimination of religion from the public domain was considered as one of the ways to achieve this major goal. However, it is apparent that the political situation has changed considerably since then and that the Ataturk reforms and ideas should now be interpreted in a way that better suits the current time. I do not argue that Turkey should abandon the principle of secularism altogether and thereby allow religion to flow immediately into the public sphere. Rather I would argue that it is time to reconsider the ideas introduced some 100 years ago to see if they are still compatible with major democratic principles accepted by society. It is apparent from the number of supporters of the Refah and AK parties that Turkish society strongly disagrees with how the principle of secularism has been promoted and overprotected in Turkey. I believe that no state can succeed in building a true democracy if it imposes principles and views that people do not share and is wilfully deaf to what is happening in society (such as the problems of Kurdish minorities and the headscarf ban in universities). It is peculiar that a state in which 90 per cent of the population affiliates with one religious group insists on keeping all religious matters (including those related to Islam) out of the public domain, relegating its proper discussion to the family home. This peculiarity is evident in both aspects of Turkey’s mission to protect secularism: that is, the dissolution of political parties with an Islamic agenda and the headscarf ban. I therefore argue that Turkey has not succeeded in using militant demo-cracy properly, and that the government has not made convincing arguments


in support of its actions. First, it has failed to convince politicians and com-mentators that a political party with any religion- related agenda is, per se, dangerous for democracy; such a party is not necessarily undemocratic.74 In the Turkish example, the problem is that Islamic parties and women wearing headscarves are argued to be dangerous for democracy as such, and the gov-ernment and judiciary have not deemed it necessary to establish the link between these activities and a threat to democracy. There is a difference between a Muslim party advocating for better accommodation of religious beliefs and a party advocating to introduce Sharia and replace the existing legal system. The former may certainly evolve into a version of the latter, but this needs to be proved and established before imposing a blind a priori ban on such political groups. Any references to religion in a party pro-gramme and the speeches of its leaders are currently assumed to be a threat to democracy. This assumption causes political parties advocating for the abolition of the headscarf ban to be automatically perceived as enemies of the democracy. This is not, however, a claim in support of the argument that democracy should allow unfettered activity by religious parties; neither is it a claim that a headscarf or any other religious clothing in public institutions should never be an issue (for example, headscarves worn by teachers in elementary school is a different issue from that of a mature female university student covering her head on campus).75 Rather, I claim that the state cannot ignore political parties representing the interests of the majority of the population and ban it for advocating changes that are eagerly desired by society. The Constitutional Court, in deciding on the prohibition of religious parties, assumes a great responsibility, as it effectively substitutes its will for the will of the people who vote for the party. In order to justify such interference, the judiciary is expected to give indisputable and compelling reasons in support of the ban; the Constitutional Court of Turkey has not been successful in doing this. The state cannot lump each and every action it wishes to under-take under the umbrella of militant democracy and maintain that it has been acting for the sake of democracy; moreover, the state cannot bear the sole responsibility for protecting democracy. Where the government is reluctant to demonstrate that the activities of a particular political party are dangerous and that women wearing headscarves in university are likely to destroy Turkish democracy, a resulting dissolution will never qualify as proper militant democracy practice. The most recent development in the headscarf debate in Turkey makes an intriguing contribution to the topic. Following the protests in Istanbul in September 2013, the Prime Minister announced on 30 September a new ‘Democratisation Package’,76 which included important changes for women wearing headscarves. Females who choose to cover their heads are no longer denied entrance to public places where the state is present (state offices, public schools, universities) and can even be employed in state offices while wearing headscarves (apart from the military and judiciary).77 There were


multiple concerns and criticisms in relation to this decision and a constitu-tional challenge would not come as a surprise, but as of September 2014 there have been no legal actions brought to declare the lift of the headscarf ban unconstitutional.78 This move by the AK Party and the Prime Minister of Turkey demonstrates that it is not possible for democracy to indefinitely sustain policies of suppression and ignorance of the demands brought by a large proportion of the population. Rather, there is a need to accommodate them through dialogue, negotiation, and compromise. An outright rejection of such claims without justification cannot be a long- term solution for the problem. Turkey could rely on the militant democracy rationale to reject those claims and insist on protecting the principle of secularism by any means available, but this will ultimately amount to an unjustified and illegitimate use of the concept, as well as catalysing increased frustration within society. To sum up, this case study demonstrates that militant democracy can be utilised to address the threat coming from religious extremism. This state-ment applies to religiously affiliated parties and to other alleged indicia of religious extremism (such as wearing religious clothes). These phenomena can indeed pose a threat to democracy in some circumstances and therefore be banned to sustain democracy. The principle of secularism is widely present in modern democratic constitutions and essentially means that state and religion exist and function separately. Militant democracy can be uti-lised perfectly to guard these principles and prevent religion from overtak-ing state and becoming a political ideology. Further, the idea of preventing the formation and activities of political parties that directly invoke a par-ticular religion, race, or ethnic group is known to many democratic constitu-tions and can be accommodated by legitimate and justified militant democracy practice. However, militant democracy should not be interpreted so as to say that any reference to religion in the public space should be pro-hibited and automatically considered dangerous for democracy. Political leaders in various countries visit church services and even take an oath on the Bible, but this is hardly a reason to consider them enemies of the democracy. The same is applicable to the traditions of Christian Democratic parties in Western democracies and conservative parties referring to church support on many occasions, including controversial social issues such as, for example, same- sex marriages or abortion. It is not clear why the Turkish government should be allowed to deny any interaction with religion by vague reference to the need to protect democracy. Secularism cannot be interpreted such that religion is not a matter for public debate and any reference to it within polit-ical space is undemocratic. Where it is so interpreted, militant democracy cannot be legitimately invoked to protect the corrupted interpretation of this constitutional principle. The principle of militant democracy in Turkey should not be used by paranoid politicians entertaining a certain vision of society dreamed up a long time ago by Ataturk. Religious beliefs result in particular values shared by members of a common group, and when these values are shared by some


90 per cent of the population a state cannot relegate them to being discussed only in homes. People will talk about these issues, and politicians will need to accommodate them one way or another. Turkey has the potential to protect its constitutional structure from the possible threat of religious extremism and the re- establishment of the Caliphate by using militant democracy measures. However, at the moment Turkey invokes militant democracy too frequently, and uses it to protect a corrupted version of secularism and without observing the pre- conditions of legitimate militant democracy. That is why I conclude that Turkey has mis-interpreted and misused the militant democracy mechanism. However, the major problem with the Turkish example is that its actions have later been found legitimate and justified by the European Court of Human Rights, which has indeed endorsed some elements of the Turkish version of militant secularism. This is the subject matter of Chapter 10.

Notes

1 Adopted from Patrick Macklem, ‘Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe’ (2012) 19(4) Constellations, 576.

2 Ergun Ozbudun, ‘Party Prohibition Cases: Different Approach by the Turkish Constitutional Court and the European Court of Human Rights’ (2010) 17 Democratisation, 126.

3 Ibid. 125. 4 Ibid. 126. 5 Refah Partisi (the Welfare Party) and Others v. Turkey (2003) (Application nos

41340/98, 41342/98, 41343/98, and 41344/98). 6 See, for example, Serdar Demirel, ‘The Roots of Headscarf Ban in Turkey’ (2008)

5 Journal of Islam in Asia 164–5. For an examination of Turkey’s transformation towards a secular state, see Niyazi Berkes, The Development of Secularism In Turkey (Routledge 1998).

7 For more details on this period of the Turkish state and on the war for independ-ence, see Stanford Jay Shaw and Ezel Kural Shaw, History Of The Ottoman Empire And Modern Turkey: Volume 1, Empire of the Gazis: The Rise and Decline of the Ottoman Empire 1280–1808 (Cambridge University Press 1991–1992), 340.

8 See, for example, Yaniv Roznai and Serkan Yolcu, ‘An Unconstitutional Con-stitutional Amendment – the Turkish Perspective: a Comment on The Turkish Constitutional Court’s Headscarf Decision’ (2012) 10(1) International Journal of Constitutional Law, 177.

9 Dicle Kogacioglu, ‘Progress, Unity, and Democracy: Dissolving Political Parties in Turkey’ (2004) 38 Law and Society Review, 434.

10 See, for example, www.ataturk.com for Ataturk’s biography and a detailed account of his reforms.

11 Dominic McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Hart Publishing 2006), 133.

12 Ibid.13 George S Harris, ‘The Role of the Military in Turkish Politics’ (1965) 19(1)

Middle East Journal 54; George S Harris, ‘Military Coups and Turkish Demo-cracy, 1960–1980’ (2011) 12(2) Turkish Studies, 203; Yaprak Gursoy, ‘The


Changing Role of the Military in Turkish Politics: Democratization Through Coup Plots?’ (2012) 19(4) Democratisation, 735; Elise Massicard and Nicole F Watts, Negotiating Political Power in Turkey (Routledge 2013).

14 Jonathan Rugman and Roger Hutchings, Ataturk’s Children: Turkey and the Kurds (Cassel 1998); the problem is not yet resolved: Nil A Satana, ‘The Kurdish Issue in 2011 Elections: Continuity or Change in Turkey’s Democratization?’ (2012) 13(2) Turkish Studies, 169.

15 Kogacioglu above n 9, 434.16 Emphasis added.17 Article 4: The provision of Article 1 of the Constitution establishing the form of

the state as a Republic, the provisions in Article 2 on the characteristics of the Republic, and the provision of Article 3 shall not be amended, nor shall their amendment be proposed.

18 For a detailed account of the eternity clause in the Turkish Constitution, see Bertil Emrah Oder, ‘Turkey’, in Markus Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Ashgate 2009), 263–310.

19 The official translation of the Constitution of Turkey is available at http://global.tbmm.gov.tr/docs/constitution_en.pdf, accessed 30 June 2014.

20 The Lausanne Treaty had settled the question of minorities in Turkey. Accord-ing to this document, only non- Muslim groups were recognised as minorities (i.e. Armenians, Greeks). Therefore, Kurds cannot make any claims for recogni-tion as a national minority.

21 Kogacioglu above n 9, 439.22 Ibid. 435.23 For a detailed account of the constitutional framework of the freedom of political

parties in Turkey, see Yusuf Sevki Hakyemez and Birol Akgun, ‘Limitations on the Freedom of Political Parties in Turkey and the Jurisprudence of the Euro-pean Court of Human Rights’ (2002) 7(2) Mediterranean Politics, 55–61.

24 Ibid.25 Article 68 (as amended on 23 July 1995).26 The provision is not unique for Turkey, though taking into account the role of

the army in Turkish society and politics, this norm receives different interpreta-tions and consequences elsewhere.

27 Article 69, in addition to the standard requirement of observance of major demo-cratic principles, also requires political parties not to engage in activities outside the lines of their statutes and programmes; not to contravene the restrictions set forth in Article 14 of the constitution; not to have political ties and engage in political cooperation with associations, unions, foundations, cooperatives, and public professional organisations and their higher bodies in order to implement and strengthen their party policies; and not to receive any material assistance from these bodies.

28 Article 69 establishes that, first, the party which has been dissolved permanently cannot be founded under another name. Second,

members, including the founders of a political party whose acts or state-ments have caused the party to be dissolved permanently cannot be found-ers, members, directors or supervisors in any other party for a period of five years from the date of the Constitutional Court’s final decision and its justi-fication for permanently dissolving the party.


Further, Law no. 2820 on the Regulation of Political Parties also states that all the assets of the political parties dissolved by the order of the Constitutional Court shall be transferred to the state (Section 107 (1)).

29 Ozbudun above n 2, 136.30 See, for example, Ceren Belge, ‘Friends of the Court: The Republican Alliance

and Selective Activism of the Constitutional Court of Turkey’ (2006) 40 Law and Society Review, 3.

31 See, for example, Arsu Sebmen, ‘Turkey: Parliament Rejects Plan to Protect Political Parties’, New York Times, 4 May 2010; BBC News Europe, Q&A: Tur-key’s Constitutional Referendum, 12 September 2010.

32 Refah Party was not the only one banned for their alleged anti- secular activities. Earlier, the Constitutional Court of Turkey ordered the dissolution of the National Order Party (in 1971), the Turkey Peace Party (in 1983), and the Freedom and Democracy Party (in 1993), despite the fact that the party dis-solved itself while the case was pending.

33 For more details on the Refah Party history, see Mehran Kamrava, ‘Pseudo- Democratic Politics and Populist Possibilities: The Rise and Demise of Turkey’s Refah Party’ (1998) 25(2) British Journal of Middle Eastern Studies, 286.

34 The December 1995 elections result: Refah Party, 21.5 per cent; Motherland Party, 19.5 per cent; True Path Party, 19 per cent; Democratic Left Party, 14.5 per cent; Republican People’s Party, 11 per cent; smaller parties, 14.5 per cent of the votes together.

35 For a detailed account of the Constitutional Court’s judgment on Refah Party, see Refah Partisi (the Welfare Party) and Others v. Turkey (2001) (Application nos 41340/98, 41342/98, 41343/98, and 41344/98), section 4.

36 Ibid. para. 24.37 Ibid.38 European Commission for Democracy through Law (Venice Commission), Guide-

lines on Prohibition of Political Parties and Analogous Measures. Adopted by the Venice Commission at the 41st Plenary Session (Venice, 10–11 December 1999).

39 Therefore, one third of the votes were given to the non- existing party and people were left without representation of their choice. Taking into account that demo-cracy is about election of the rulers, denial of the substantial number of voters to be represented by the party of their choice poses serious questions about the reality of the right to vote and choose.

40 Kogacioglu above n 9, 441.41 Ibid.42 For details of the case, see Yazar, Karatas, Aksoy and the People’s Labour Party

(HEP) v. Turkey (2002) (Application nos 22723/93, 22724/93, 22725/93).43 See, for example, Ergun Özsunay, ‘Religious Fundamentalism: Turkish Experi-

ence’, in Nacionalismo En Europa, Nacionalismo En Galicia, Simposio Internacional Celebrado En: Pazo De Marinan (A Coruna 1997), 101–16; Sultan Tepe, Beyond Sacred and Secular: Politics od Religion in Israel and Turkey (Stanford University Press 2008); Yildiz Ahmet, ‘Politico- Religious Discourse of Political Islam in Turkey: The Parties of National Outlook’ (2003) 93(2) Muslim World, 187. Also, the European Court of Human Rights refers to this aspect of the history of Turkey to justify its decisions to support the headscarf ban and dissolution of the political parties affiliated with certain regions (discussed in detail in Chapter 10).


44 See, for example, BBC News, Turkey’s Ruling Party Escapes Ban, 30 July 2008.45 Law No. 5735 on Amendments to Some Articles of the Constitution. For details on the

initiative to amend the constitution, procedures to adopt the law, and further constitutional challenges, see Roznai and Yolcu above n 8.

46 Decision of the Constitutional Court of Turkey E. 2008/16; K. 2008/116, Resmi Gazete (Official Gazette), 22 October 2008, No. 27032, pp. 109–52.

47 Decision of the Constitutional Court of Turkey E.2008/1 (SPK), K.2008/2. The main argument to initiate the procedure to ban a party was the initiative of a constitu-tional amendment aimed at the abolition of the headscarf ban at the universities. See, for example, Sinan Ikinci, Turkey’s Chief Prosecutor Seeks to Ban the Ruling AK, available at www.wsws.org/articles/2008/apr2008/turk- a02.shtml.

48 Ozbudun above n 2, 137.49 Ibid.50 Ikinci above n 47.51 See, for example, Ozlem Denli, ‘Between Laicist State Ideology and the Modern

Public Religion: The Head- Cover Controversy in Contemporary Turkey’, in Tore Lindholm, Cole W Durham, and Bahoa G Tahzib- Lie (eds), Facilitating Freedom of Religion or Belief: A Deskbook (Martinus Nijhoff 2005), 497–511.

52 See Roznai and Yolcu above n 8, 175; Anna Korteweg and Gokce Yurdakul, The Headscarf Debates: Conflicts of National Belonging (Stanford University Press 2014).

53 Ozbudun above n 2, 132.54 Ibid. 133.55 Among other measures could be listed the repeal of the constitutional provision

declaring Islam a state religion (in 1928), the introduction of the Swiss Civil Code, the constitutional amendment granting equal political rights to women (in 1934), and the replacement of the Arabic alphabet with Latin.

56 McGoldrick above n 11, 133.57 The Dress (Regulation) Act of 3 December 1943 (Law No 2596). Q.58 Alev Cinar, ‘Subversion and Subjugation in the Public Sphere: Secularism and

the Islamic Headscarf ’ (2008) 33 Comparative Perspectives Symposium: Gendered Migrations, 899.

59 Ibid. 900.60 Ibid. 902.61 Ibid.62 Ibid. 891.63 For a detailed account of the regulations on wearing headscarves in educational

institutions and judicial practice before the Leyla Sahin case, see McGoldrick above n 11, 135–7.

64 Cinar above n 58.65 The other case in a similar vein is Karaduman and Others v. Turkey (2008)

(Application no. 8810/03) – a case concerning the refusal to provide degree cer-tificates to women who provided identity photographs wearing the headscarf (hijab). See also Human Rights Watch, ‘Memorandum to the Turkish Govern-ment on Human Rights Watch’s Concerns with regard to Academic Freedom in Higher Education, and Access to Higher Education for Women who Wear the Headscarf ’ (2004) Human Rights Watch Briefing Paper.

66 For a detailed set of measures taken in relation to Sahin and her refusal to remove the headscarf, see section C, Part 1 of the decision in the case of Leyla Sahin v. Turkey (2004) (Application no. 44774/98).


67 Ibid.68 Other reasons listed by the government are maintaining public order in univer-

sities, upholding the principle of secularism, and protecting the rights and freedoms of others. See Sahin v. Turkey above n 66, para. 82.

69 Fazilet Partisi and Kutan v. Turkey (2006) (Application no. 1444/02). The case was struck from the Court’s list as the applicant withdrew their application.

70 Decision of the Constitutional Court of Turkey, 5 June 2008, above n 46, 109–52.71 For details, see European Commission for Democracy through Law (Venice Com-

mission), Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey. Adopted by the Venice Commission at its 78th Plenary Session (2009).

72 Ibid.73 McGoldrick above n 11, 133.74 The same conclusion was reached by the Venice Commission in the Opinion on the

Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey above n 71:

a political party animated by the moral values imposed by a religion cannot be regarded as intrinsically inimical to the fundamental principles of demo-cracy, as set forth in the Convention, provided that means used to that end are legal and democratic and that the change proposed is itself compatible with fundamental democratic principles.

75 For a more detailed account on the different approaches to the Islamic headscarf, see: Winfried Brugger and Michael Karayanni, Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law (Springer 2007); McGoldrick above n 11; Christian Joppke, ‘State Neutrality and Islamic Headscarf Laws in France and Germany’ (2007) 36(4) Theory and Society, 313.

76 See, for example, Korteweg and Yurdakul above n 52, 63; also Ergun Ozbudun, ‘The Turkish “Democratization Package” ’, Middle East Institute news blog, 15 October 2013, available at www.mei.edu/content/turkish-%E2%80%9C democratization-package%E2%80%9D, accessed 30 June 2014.

77 Ibid.78 Korteweg and Yurdakul above n 52, 75.

10 Militant democracy and the principle of secularism1 in the practice of the European Court of Human Rights

The jurisprudence of the European Court of Human Rights on party prohi-bition was discussed in Chapter 5. From the analysis above, it follows that this jurisprudence can be split into a few categories depending upon the grounds for party dissolution or the types of parties targeted,2 and the char-acter of limitations imposed on political parties using the militant demo-cracy justification.3 From the very beginning of the Court’s ‘life’, it has had to deal with cases concerning political parties supporting or promoting fascist and/or communist ideologies. In regard to these actors, the Court has developed a consistent and simple line of argument, with most such applica-tions held to be either manifestly ill- founded or struck down under Article 17 of the European Convention on Human Rights (the so- called abuse clause).4 The democratisation of Central and Eastern Europe made the ECHR reconsider its established interpretation and application of militant demo-cracy, causing it to go beyond merely invoking the abuse clause to strike out cases concerning the prohibition of political parties supportive of allegedly dangerous ideologies and ideas. However, the democratisation in post- communist European states was not the only driver of the Court’s push to interpret and apply notions of militant democracy in its jurisprudence. Since 2001, the European Court of Human Rights has faced an array of legal argu-ments on the relationship between religion and public order, in relation to both political parties with religious sentiments and the presence of certain religions in the public domain. Thus, the Court was called upon to decide whether to prohibit a large, allegedly anti- secular political party from Turkey, and to decide if the public display of certain religious symbols in public is a threat to democracy that should be banned under the militant democracy rationale. In what follows, I will demonstrate how the concept of militant democracy was reshaped by the Court to address the alleged threat coming from growing religious extremist movements, and evaluate whether this solution has proved successful and efficient in protecting democracy from its potential enemies.


10.1 ‘Mohamed comes to Strasbourg’5: militant democracy protecting the principle of secularism in the practice of the ECHR

Refah Partisi and Others v. Turkey6 was the first occasion where the ECHR supported Turkey in its decision to dissolve a political party.7 The original decision of the ECHR of 20018 was reconfirmed later by the Grand Chamber in 2003.9 The facts of the case were detailed in Chapter 9, and it is worth recalling that, when it was banned by Turkish authorities, the Refah Party had over four million members, such that this judgment of the European Court of Human Rights represents the single largest interference with the freedom of association, based on number of people affected, in the Court’s history. It was noted by the Court that ‘protecting secularism is necessary for protection of the democratic system in Turkey’.10 The Court held that, in its decision to ban the Refah Party, Turkey did not violate the ‘legitimate aims listed in the Convention, namely – protection of national security and public safety, prevention of disorder or crime and protection of the rights and freedoms of others’.11

The ECHR adopted a different position to that which it had taken in all previous cases. However, it reconfirmed its position on the procedure for dis-solving political parties – which had been established in the previous case law. In particular, it reaffirmed that ‘democracy requires that the people should be given a role’;12 ‘only institutions created by and for the people may be vested with the powers and authority of the State’13 and ‘statute law must be interpreted and applied by an independent judicial power’.14 The Court proved highly consistent in its legal technique for deciding party dissolution cases and reiterated that Article 11 must also be considered in the light of Article 10. The Court relied on its earlier established principles on the importance of freedom of speech in a democratic society, noting that there can be ‘no democracy without pluralism’ and that ‘freedom of speech pro-tects also ideas that offend, shock or disturb’.15 In addition to revisiting the major findings of its previous judgments, the Court made a new and very important contribution to the debate on prohibition of political parties in democratic states: for the first time ever, the Court systemised its views about how a political party may campaign for a change in the legal and con-stitutional basis of the state. The very first condition to be met is that ‘the means used to that end must in every respect be legal and democratic’.16 Where a political party advances and promotes its political agenda through means which are not legal and democratic in their nature, it cannot claim protection of its rights and freedoms (of speech, association, participation in public affairs) as guaranteed by the Convention. The second condition imposed by the Court on political parties is that ‘the change proposed must itself be compatible with fundamental democratic principles’.17 Both criteria are subject to further interpretation and application by national authorities (with the supervision of the judiciary, including the ECHR). The way these

The principle of secularism in the ECHR 191

two foundational principles were construed and applied in the case of the Refah Party led both the Constitutional Court of Turkey and the ECHR to conclude that the party had been banned in full conformity with the Euro-pean Convention on Human Rights. The principles summarised by the ECHR and presented in the Refah case are by no means inconsistent with the previous jurisprudence of the Court on party dissolution; however, the way these principles were applied in the Refah Party case is problematic and demonstrates the Court’s struggle in extending militant democracy beyond its original rationale (with minor political parties being ‘bullied’ by dominating parties). Some commentators even claim this decision ‘stands in contradiction to other judgments passed regarding religious and cultural issues, where for example, Kurdish or Alevite issues were at stake’.18 The Refah Party was accused of violating con-stitutional principles of secularism19 and the ECHR attempted to demon-strate its engagement in deep analysis of the party’s activities and agenda in order to assess the alleged violation of the principle of secularism. According to the facts of the case, the Refah Party allegedly violated the principle of secularism by intending to set up a plurality of legal systems (and therefore introducing discrimination on the grounds of belief ) to apply Sharia in some instances in the Muslim community and by endorsing jihad (holy war) as a valid political mechanism.20 The ECHR found all listed purposes of the Refah Party to be incompatible with the Convention. The Court also sup-ported the penalties imposed on the founding members of the dissolved political party (six members of the party were banned from political activ-ities for five years)21 as meeting the requirement of a ‘pressing social need’. Also, in full conformity with the preventive nature of militant democracy, the Court stated that

even though the margin of appreciation left to States must be a narrow one where the dissolution of political parties is concerned, since the pluralism of ideas and parties is itself an inherent part of democracy, a State may reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime.22

The decision of the Court triggered a very tense debate. Three of seven judges dissented and considered the measures adopted by the Turkish national authorities as disproportionate and in violation of Article 11 of the Convention.23 In their opinion, ‘the fact that a political programme is con-sidered incompatible with the current principles and structures of a State does not make it incompatible with the rules of democracy’.24 Indeed, the minority stressed many times that democracy provides a forum for express-ing and considering all sorts of ideas, thoughts, and suggestions, including those that shock and offend25 or involve advocacy to abolish or change the


constitution.26 As the dissenting judges continued, ‘it is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way the State is currently organized, provided that they do not harm democracy itself ’.27 The dissent-ing judgment also pointed out the lack of

any compelling or convincing evidence to suggest that the party, whether before or after entering Government, took any steps to realise political aims which were incompatible with Convention norms, to destroy or undermine the secular society, to engage in or to encourage acts of violence or religious hatred, or otherwise to pose a threat to the legal and democratic order in Turkey.28

While such a claim fails to grapple with the preventive nature of militant democracy, it is certainly possible to discern a degree of bias in relation to a political party with Islamic sentiments. The latter claim of the dissenting opinion was addressed in the Grand Chamber judgment, but even a unanimous decision did not convince those criticising the Court’s ‘new’ approach to the issue of political party dissolution. The Grand Chamber decision29 paid more attention to whether the lim-itation was prescribed by law, a concern raised by the Refah Party’s legal representatives. The Court explained that the requirement ‘prescribed by law’ means first of all that the measure should have a basis in domestic law, and that it also refers to the quality of the law in question; requiring that it be ‘accessible to the persons concerned and formulated with sufficient preci-sion to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’.30 The Court indicated its willingness, if ‘the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the indi-vidual adequate protection against arbitrary interference’.31 The Court found that the applicants to the case were definitely in a position to foresee the pos-sibility of their party being dissolved (as they were experienced politicians and members of parliament). In addition, the Court elaborated on the issue of the imputability to a political party of the acts and speeches of its members.32 It held that the constitution and programme of a political party are not the only arguments to be taken into account. Rather it must be com-pared with the actions of the party’s leadership. As the Court pointed out, a political party may have hidden objectives and intentions which are not evident from its programme. However, the main contribution of the Grand Chamber’s decision to the debate on dissolution of political parties was the approval of the state’s right of preventive intervention (or militant democracy in its clearest form). The Court declared, in response to the dissenting opinion to the Chamber judg-ment, that a


state cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and demo-cracy, even though the danger of that policy for democracy is sufficiently established and imminent.33

The Court then formulated a three- prong test to assess whether a political party indeed poses a threat to democracy: (1) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent;34 (2) whether the acts and speeches of the leaders and members of the political party concerned were imputable to the party as a whole;35 and (3) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society con-ceived and advocated by the party which was incompatible with the concept of a ‘democratic society’.36 Furthermore, the Court stated that historical context also has to be taken into account.37 The test as formulated by the Court seems sophisticated and justified; however, it was applied in a fashion that attracted tense criticism. The ECHR ruled against Refah by four to three votes, but later the judg-ment was confirmed by the unanimous decision of the Grand Chamber. It was concluded that the Refah Party was advocating Islamic law and violence to pursue this goal. The Court extensively cited party leaders’ statements and speeches. It also referred to the history of antidemocratic parties in Europe that had managed to seize power through democratic means, and considered that it is still feasible that totalitarian political movements organ-ised in the forms of political parties might abuse and destroy democracy through the democratic means available to them. It was found that Turkish Islamists are popular enough that at some stage they could form government without entering into any coalition. However, none of these arguments could justify the Court’s provocative statement that Sharia and democracy are per se not compatible,38 and that the presence of the former in politics excludes any possibility of coexistence with the latter. It is even possible to read the judgment as stating that there is no place for political Islam in the European project. From previous case law, it clearly follows that freedom of association and political pluralism are not a dead letter. Turkey was found to be in violation of the Convention a number of times in banning parties with a Kurdish agenda (such as the Communist Party, the Socialist Party, OZDEP, HEP, and DEP). In the Refah case, however, the Court seemed to depart from the established case law and its broad interpretation of associa-tional freedom, which includes the right to advocate for changes that are not compatible with the national constitution. Where such changes are pro-moted by a political party with Islamic sentiments, and the changes aim to expand inclusion and accommodation of the religious preferences of a predominantly Muslim population, the ECHR views such proposals as a threat to democracy. Some commentators expressed the opinion that such


statements are apt to provoke anger, and have even made accusations of Islamophobia.39

Although the Grand Chamber decision was unanimous, there have been concurring opinions from commentators reflecting concern about the judg-ment. Thus, Judge Kovler criticised the Court’s use of ambiguous terms such as ‘Islamic fundamentalism’, ‘totalitarian movements’, and ‘threat to democratic regimes’, which are more appropriate for politico- ideological dis-course rather than legal reasoning in a judicial decision. Judge Kovler’s observation is worth attention given the fact that the Court in this case had to deal not only with the dissolution of a political party but also with ‘extremely sensitive issues raised by religion and its values’.40 Another grip-ping critical remark coming from the same judge concerns the concept of the plurality of legal systems, which the Court rejected as being incompati-ble with democracy and its major principles.41 Judge Kovler points out that the concept is not a novel proposal that democratic theory and practices are unaware of. The plurality of legal systems ‘is linked to that of legal plur-alism and is well- established in ancient and modern legal theory and prac-tice’.42 Even modern constitutionalism accepts that, under certain conditions, members of minority groups may have more than one type of personal status, mainly in the areas affecting individuals’ private and family lives. In this respect, it is not clear why the ECHR rejected the very possibility of such an arrangement, especially with the prospect of imposing safeguards dictated by the requirements of general interests.43

The Strasbourg Court did not accept these critiques of its Refah judg-ment. Instead, it continued to decide cases involving various claims by Euro-pean Muslims with the assumption that Sharia is inherently undemocratic and Islamic laws are immutable and irreconcilable with democracy. The jur-isprudence of the ECHR on the headscarf ban imposed in a few European states reinforces the Court’s position on Islam in the ‘common’ European democratic project. According to the Court’s view, religious attire, especially Islamic religious attire, represents a serious challenge to democracies, hence leading many of them to seek to ban it either in part or in full. The position adopted by the ECHR in relation to domestic legislation banning religious attire in public areas goes to the heart of the militant democracy debate because of the justification given for such measures. The next section looks at the ECHR jurisprudence on the headscarf ban to demonstrate that militant democracy has migrated to a new domain, and to assess how effective it is in addressing the alleged threat of religious fundamentalism.

10.2 Headscarves, religious extremism, and militant democracy

The previous section demonstrated how the recent ECHR judgment in the Refah Party case suggests that militant democracy allows states to take pre- emptive measures to protect core features of the constitutional order, which


now also includes constitutional commitments to a principle of secularism. It is clear from the Refah judgment that the idea of militant democracy was at the heart of the Court’s opinion, and the extension of the doctrine was to its most traditional weapon – party prohibition. However, the party in ques-tion had a ‘pluralist agenda of [a] religious nature’ and this therefore inevit-ably involved an assessment by the Court of the interrelations between secularism and democracy, as well as of the compatibility of particular expressions of religious belief with the very concept of democracy. In the headscarf ban cases, the ECHR continued its line of authority on how demo-cracy may use militant democracy justifications to guard the principle of sec-ularism and protect itself from the alleged threat of fundamentalist religious movements. All headscarf ban cases decided by the Strasbourg Court can indeed be assessed through militant democracy reasoning rather than freedom of religion considerations. However, it appears that the Court stopped halfway in applying militant democracy: it concluded democracies can utilise this tool to protect themselves from the threat posed to their existence by some religious movements, but left out one of the most crucial elements: the justification for such measures must be proportionate to the aim pursued. This is especially problematic in the light of the fact that head-scarf ban cases involve highly sensitive and personal claims concerning indi-viduals’ rights to exhibit their beliefs, and that these cases predominantly affect followers of ‘other’ or ‘non- traditional’ faiths in the European context, and especially Islam. The most controversial case in the ECHR practice to date on the issue of the headscarf ban is the case of Leyla Sahin v. Turkey,44 mentioned previously in Chapter 9. The case was brought by a female medical student who was prohibited from attending lectures and taking exams while covering her head with an Islamic headscarf. Turkey imposed a national ban on head-scarves in tertiary educational institutions, measures which had no equi-valent in any other European country.45 However, there are a handful of cases decided by the Court that have involved various aspects of religious claims brought by the followers of Islam.46 Thus, Serif v. Greece,47 decided in 1999, involved a dispute between two religious leaders in a struggle for the Muftis post; X v. United Kingdom48 concerned a Muslim schoolteacher who requested time off on a Friday afternoon to attend prayer; and the Gunduz v. Turkey49 case was brought by the leader of an Islamic sect claiming his freedom of expression was violated when criminal proceedings were initiated after he expressed a view in a television broadcast that ‘a democrat is a man with no religion’50 and a child born of a union authorised by a civil official (as opposed to religious officer) will be a bastard.51 Earlier admissibility deci-sions in Karaduman v. Turkey52 and Bulut v. Turkey53 concerned the awarding of university diplomas to students who refused to take a photo without their head coverings. In both cases, the applicants’ complaints were dis-missed. It is notable that most – but not all – cases originate in Turkey. One example would be Dahlab v. Switzerland,54 decided by the Court in 2001.


The applicant in that case was a primary school teacher who had been asked to stop wearing her headscarf while carrying out her teaching duties. The ECHR supported Swiss authorities in their policy against the wearing of headscarves by primary school teachers as it conveys a strong religious message to students of a very young age. Given the position of teachers and the influence they have on pupils, the Court declared that primary school students should be free from any religious pressure and that, in that vein, teachers should perform their duties in a ‘denominationally neutral manner’.55 The conclusion of the ECHR may appear sound; however, it needs to be reassessed in light of the more recent decision in Lautsi v. Italy56 concerning the presence of crucifixes in classrooms (the latter was found to be compatible with freedom of religion of those who are not Christians yet attend schools with Christian symbols in its classrooms).57

It is evident that the various religious claims raised by European Muslims have been keeping the ECHR busy. Comparing the Court’s response to these claims with claims of Christians (such as Kokkinakis v. Greece, Hoffman v. Austria, Otto- Preminger-Institute v. Austria, Wingrove v. United Kingdom, to name a few),58 as well as other denominations, is an interesting exercise. This is mainly due to the fact that, in the case of Christianity, the Court fully considers all aspects of the freedom of religion, while in cases where Islamic beliefs are at stake the Court shifts to a militant democracy analysis and scrutinises measures adopted by national authorities to determine whether they are necessary to protect democracy, rather than whether they are violat-ing religious interests. This is particularly notable in cases where a ban of certain religious symbols and rituals has been imposed on university stu-dents.59 The Court has taken its reasoning as far as to state the importance of university (and not only elementary or high school) disciplinary rules to ensure ‘that the religious fundamentalist currents do not disrupt the public order’.60 The possibility of the incursion of religious beliefs into universities and its development into fundamentalism was one of the main themes in the Sahin judgment. The Chamber judgment of 29 June 2004 held unanimously that there had been no violation of the Convention, thereby leaving Miss Sahin’s reli-gious interests unprotected.61 According to the Court, there is no contradic-tion with the Convention when an adult female has to leave the country and finish her higher education abroad because of her refusal to remove her head-scarf at a university campus. The main arguments in favour of upholding the national authorities’ judgments were that freedom of religion can be limited in order to reconcile the interests of various religious groups62 and, that therefore, Article 9 does not protect every act motivated or inspired by reli-gious beliefs.63 While wearing a headscarf in general amounts to a protected form of religious practice, the ban was in pursuance of a legitimate aim.64 While the case was decided in a militant democracy spirit, the Court was now appropriating the usual and established techniques for applying Article 9 of the Convention for use in freedom of religion cases. As a result, the


Court held that the regulation of religious practice varies from country to country – and is, therefore, context- and culture- dependent – and that this is a matter which the Court will leave for states to choose how to regulate themselves. In ECHR terminology, it means that Turkey was granted a wide margin of appreciation to decide on matters of religious attire. While this approach is usual for freedom of religion cases, Sahin and subsequent cases are different from the other Article 9 cases because of the justification pro-posed by governments and accepted by the ECHR: that is, that the limita-tion on wearing religious attire was dictated by a need to uphold the principle of secularism, which is considered to be an important part of the wider notion of constitutional order. In other words, the Court assumed that wearing a headscarf is per se incompatible with secularism.65 The latter is protected in one way or another by many European Constitutions and, there-fore, a ban imposed on wearing headscarves is a legitimate and justified militant democracy measure. The Leyla Sahin judgment garnered substantive criticism, from both domestic and international commentators.66 There is also a powerful and well- argued dissenting opinion by Judge Tulkens,67 which summarises the major problems in the Court’s reasoning to support the ban of wearing a headscarf in this and other cases related to the religious symbols of Islam. First, the dissenting judge criticises the argument of the majority to justify the wide margin of appreciation. Contrary to the Court’s conclusion, Judge Tulkens pointed out that there was a very clear European consensus on this matter as not one of the member states has extended a ban on headscarves to university education.68 In addition, Judge Tulkens expressed concern that, in this particular case, the margin of appreciation was interpreted in a way to free the member state from the ‘European Supervision’. As to the measures taken by the state to preserve the principle of secularism, the dissenting judge noted an absence of indisputable evidence in favour of supporting such a measure, rather than mere worries or fears.69 I agree with Judge Tulkens that there were no evidence that the applicant in this case was threatening the principle of secularism or that she carried out any act that contravened the principle. It is obvious, however, that the case was not (and could not be) about wearing a headscarf by this particular applicant only. The issue in this case was more complex, having the potential to greatly impact domestic pol-icies on similar issues in the future. That is why the Court was legitimately expected to give a stronger and more convincing argument than a mere assertion that the act of wearing a headscarf is akin to an expression of reli-gious fundamentalism (or even extremism). As Judge Tulkens observes, ‘merely wearing a headscarf cannot be associated with fundamentalism and it is vital to distinguish between those who wear the headscarf and “extrem-ists” who seek to impose the headscarf as they do other religious symbols’.70

The cases of Sahin and Refah were not the only steps taken by the Court towards applying militant democracy logic in freedom of religion cases. In the case of Dogru v. France,71 originating in France, the ECHR continued to


refer to militant democracy arguments, but at the same time moved further away from the standards which make these measures legitimate and demo-cratic. The case concerned an 11-year- old Muslim girl who was expelled from school for refusing to remove her headscarf during physical education classes. It became a long- lasting battle where the French commitment to secularism (laicite) became the central issue. The case, once again, represents an example of the application of the well- settled jurisprudence on the freedom of religion and does not add anything in relation to the scope and nature of the rights protected by Article 9. According to the Court, France has a wide margin of appreciation in these matters and is therefore free to decide how it will ensure mutual tolerance between different religious groups. The regulation of school attire, including possible alternatives for Muslim girls to cover their heads during sports classes, was left fully within the margin of appreciation of the state.72 However, the case cannot be con-sidered as a minor freedom of religion case as it too involved the invocation of militant democracy to secure the principle of secularism. The Court’s opinion is a puzzling one, as the school regulation concerned only sports classes: girls were still permitted to wear head covers in other classes. However, instead of giving a justification as to why a scarf should be pro-hibited in physical training classes for reasons of health and safety, the Court went on to conclude that wearing a headscarf constitutes an attitude that fails to respect France’s constitutional commitment to secularism73 (which according to the Refah case falls outside the protection of the Convention). If we agree with the Court’s argument that the main reason for the head-scarf ban was to preserve the principle of secularism, then this demonstrates another example of pre- emptive measures which are in fact applications of militant democracy. However, the most troubling thing about the ECHR jurisprudence in applying the militant democracy rationale to protect and preserve the principle of secularism is the fact that it affects only one reli-gious group: Muslims. It would be going too far to say that the ECHR is biased and perceives political Islam as a phenomenon that has to be elimin-ated from the European space. However, it is evident that the level of pro-tection accorded to Christianity and Islam, even in Article 9 jurisprudence, differs substantially, and I believe this could be resolved through the proper application of militant democracy measures. Before I summarise my argu-ments on how militant democracy is applied in ECHR jurisprudence and how it should be changed, I will attempt to further support my argument that the European Court has devoted its jurisprudence on the principle of secularism to the task of maintaining a particular European legal order that tends to exclude particular religious groups from politics and accord them less judicial protection than other groups receive.


10.3 Militant democracy in the jurisprudence of the European Court of Human Rights: an instrument to maintain particular legal order?

Given the potential impact of these judgments on political Islam, a key concern now being raised is whether militant democracy has been co- opted as an instrument of the ‘Christian state’. Is militant democracy being employed not to defend democracy, but rather to uphold a particular legal order? All the cases discussed above support one of the book’s main claims that the concept of militant democracy has migrated from its traditional domain. Both the Refah Party case and the headscarf ban cases clearly demonstrate that militant democracy logic is being used to ban not only parties committed to allegedly dangerous political ideologies but also polit-ical parties that fail to respect core features of a liberal constitutional order (formulated by the Strasbourg Court, according to some commentators, in quite vague terms),74 including the principle of secularism, and to impose restrictions on the public display of religious symbols. The only problem with the ECHR’s extended acceptance of pre- emptive measures to protect democracy (even if it is only one particular principle rather than the system as a whole) is the fact that it affects one religion exclusively: Islam. The lan-guage of the Refah Party judgment and headscarf ban cases suggests that the outcome might have been different if the values of Christianity were at stake. I would agree with one of the concurring opinions in the Refah Party Grand Chamber judgment that the use of expressions like ‘Islamic fundamentalism’ and similar should be avoided in the language of the international human rights court.75 One commentator even goes so far as to compare the conclu-sion that Sharia is inherently undemocratic with the US Supreme Court’s treatment of African Americans as a subordinate and inferior class of people (the Dred Scott decisions of 1865), and suggests it too may one day gain a status in history as a highly inappropriate judicial generalisation.76

Many scholars in the field of Islam and Islamic law agree that, while Sharia itself may be immutable, its interpretation and application is variable and might be adjusted to democratic traditions and principles.77 Moreover, there are legitimate arguments and claims that the question of ‘whether Islam is compatible with democracy’ may be inherently wrong to pose in the first place.78 First of all, it is hard to challenge the statement that the ‘Islam v. democracy’ debate centres almost exclusively on the nature of Islam (while the notion of democracy is presented as free from any complexities).79 As there is nothing intrinsic in Islam (or many other religions) that makes it inherently undemocratic (or democratic), the issue therefore turns out to be about the conditions in which Muslims can make their religion compatible with democracy. In general, the question of the relationship between reli-gion and democracy is not a new one for social and political theoretical dis-course, and indeed it was once believed that Christianity and democracy were incompatible.80 However, it seems that the question of compatibility


between religion and democracy ‘is not a matter of philosophical specula-tion, but of political struggle’.81 The ECHR jurisprudence on political parties with an Islamic agenda and the limitations imposed on the public display of religious symbols clearly illustrate this political struggle. In fact, the worrying disparity in the treatment of claims of majority and minority religious groups dates back a long way in Article 9 jurisprudence.82 The inconsistency is borne out when analysing cases involving the protection of the religious rights of Christians (the dominant religious tradition in Europe), at least in cases involving the protection of religious interests where freedom from injury to religious feelings was accorded the broadest possible protection.83 However, the language of the Court changes dramatically when pronouncing upon the religious claims of Muslim communities. The courts at the national level have also eagerly adopted the ECHR approach and decided similar cases by extensively relying on the ECHR jurisprudence.84 All the Court’s decisions outlined above are based on a presumption rather than a legitimate justification on how the issue at stake (be it a political party’s activities or a woman wearing a headscarf ) represents a real threat to democracy. And it is indeed very troubling that the Strasbourg Court made such findings not about all religions or religion in general, but about a par-ticular one. The ECHR jurisprudence suggests but does not prove that ‘the differential treatment of Islam and Christianity [. . .] is justified [. . .] because the former is a threat to, whereas the latter is compatible with, the right to freedom of religion and belief ’.85

In relation to Muslim communities, the Court has adopted a mode of rea-soning which might be called ‘liberal anti- pluralism’, which is a narrow reading of Article 9 that allowed the exclusion of claims to legal pluralism and collective autonomy in the Refah case and prevented Muslim minorities in Europe from manifesting their beliefs by wearing particular clothing in the Sahin and Dogru cases.86 In cases involving Islam, the Court has developed a broad conception of public order which has freed national authorities and the Strasbourg Court from an obligation to protect the reli-gious interests of Muslim women in Turkey, France, and other European countries, as well as the political rights and freedoms of the Refah Party sup-porters. That is why some commentators have gone on to conclude that the ‘Strasbourg Court can be seen to be acting not only as an independent pro-tector of rights but also as [an] instrument of governance maintaining a par-ticular social order’.87 Instead of treating the freedom of religion as essential to democracy, the Court reframed the religious freedoms of a particular group and political rights of certain political parties as a threat to democracy. The ECHR stepped away from its well- established doctrine that pre- emptive measures require stricter supervision and a more limited margin of appreciation and instead immunised states from Strasbourg judicial inter-ference in the future. The problem is not, however, that militant demo-cracy migrated to the substantive concepts of democracy (liberal, secular,


republican, or any other), but rather the manner in which it was applied. I argue that the Strasbourg Court has fundamentally altered its position on the application of militant democracy. It invoked the justification but failed to demonstrate how the measures it upheld comply with militant democra-cy’s legitimacy standards. Militant democracy cannot be justified only by referring to its major theme – the prevention of threats to the foundation of the state. It has to be applied in a way that ensures it is not abused and does not allow national authorities to interfere with individual rights and freedoms without proving the necessity to do so. The Strasbourg Court’s jurisprudence on preserving secularism illustrates how militant democracy could be potentially utilised to address the alleged threat coming from growing fundamentalist religious movements. This case study supports my claim that this assumption is not mere theoretical specu-lation but that there are numerous cases when it has been put in practice. All the cases mentioned in this section can be analysed through the lens of militant democracy. The main similarity of the ECHR jurisprudence on the principle of secularism with militant democracy is the justification given to such measures by national governments and supported by Strasbourg. The two main measures explored – the dissolution of the Refah Party (and its predecessors) and the prohibition of headscarves in Turkey, France, or else-where – have been invoked as measures of a pre- emptive character employed to protect democracy. It is clear, then, that the ECHR is now familiar with the notion of militant democracy and widely uses it in its jurisprudence on freedom of association and freedom of religion. However, another observa-tion must be made concerning the darker side of the militant democracy story in Strasbourg jurisprudence. From the early case law on party prohibition, it has emerged that the Court is very willing to interpret associational freedom in relation to polit-ical parties in the broadest possible way, but predominantly in cases where minor and unpopular parties are the ones being dissolved. However, the Court has failed to explain and justify why the appearance in Strasbourg of a party with strong popular support changes the scope and format of freedoms given to political parties. It is not clear why small parties can advocate for any agenda and even propose in direct conflict with current constitutions (like restoration of the monarchy, secession, changing the borders, and others) but popular parties cannot do any of these things if they have Islamic religious affiliations. The fact that the Refah Party’s political agenda was of a religious nature, and that the religion was Islam, is what particularly com-plicates the situation. It is true that the Refah Party may simply be an unfor-tunate accident in the Court’s haphazard jurisprudence on the compatibility of Islam and democracy; however, the subsequent case law on headscarf bans appears to signal that this strategy is well- planned and not about to change. The ECHR extensively referred to militant democracy logic to uphold the headscarf ban and the dissolution of the Refah Party; however, it failed to establish the link between prohibited activities and the threat to democracy.


I do not argue that the Court was completely wrong in finding that Refah was dangerous to democracy or that headscarves may pose a threat to the principle of secularism and constitutional order in more general terms. The problem is that the ECHR could not prove any of these findings. I have already argued in earlier chapters that the legitimacy of militant democracy measures depends on the manner in which they are applied. Pre- emptive measures imposing limits on fundamental rights and freedoms require legally strong justification. By no means is it acceptable to limit the scope of protection accorded by Articles 9–11 of the European Convention based on mere assertions on how certain acts of party leaders or the party programme are dangerous for democracy. Militant democracy is designed to protect a very particular and important construction – constitutional order – however, it does not follow that the state should be freed from the duty to justify its actions, even if we concede that militant democracy is of a preventive nature. I conclude from this section that militant democracy is a useful concept for ECHR jurisprudence and is applicable beyond its traditional area of applica-tion. Properly interpreted and applied, the notion of militant democracy might offer successful solutions in cases where states want to prevent the growth of movements that use democratic means to establish not only totali-tarian but fundamentalist and coercive religious ideologies as well. Unfortu-nately, to date, the Court has employed a modified version of militant democracy where the logic was invoked without proper justification. The way the concept has been interpreted by the Court demonstrates that a corrupted version of militant democracy was deployed in order to facilitate a political status quo that the ECHR and the European community currently wish to perpetuate. By no means was militant democracy designed to protect demo-cracy by denying rights of protection to particular groups (religious, ethnic, political) without justification. The Strasbourg Court will produce less con-troversial judgments once it starts to uphold national authorities’ decisions of a militant democracy character only on legitimate and justified grounds, and where the link between the prohibited activities and the threat to democracy is proven. Militant democracy can easily be turned into a weapon to eliminate not only political opponents but religious and ethnic minorities if the Court continues to blindly accept national authorities’ arguments that democracy should be protected by any means. This is exactly when militant democracy destroys, rather than protects, constitutional democracies – an outcome that international human rights will not condone.

Notes

1 For a general debate on constitutional secularism, see Susanna Mancini and Michel Rosenfeld, Constitutional Secularism in an Age of Religious Revival (Oxford University Press 2013).

2 Various authors suggest categorisations of party prohibition cases decided by the ECHR (such as pro- minority parties, anti- secular parties, parties with links to


terrorist organisations). See, for example, Samuel Issacharoff, ‘Fragile Demo-cracies’ (2007) 120 Harvard Law Review, 1407; Olgun Akbulut, ‘Criteria Developed by the European Court of Human Rights on the Dissolution of Polit-ical Parties’ (2010) 34(1) Fordham International Law Journal, 48.

3 Chapter 5 mentions dissolution of political parties, suspension of party activities, and registration procedures.

4 For details, see Chapter 5. 5 The expression ‘Mohamed Comes to Strasbourg’ is adopted from Michael D

Goldhaber, A People’s History of The European Court of Human Rights (Rutgers Uni-versity Press 2007).

6 Refah Partisi (the Welfare Party) and Others v. Turkey (2003) (Applications nos 41340/98, 41342/98, 41343/98, and 41344/98). Grand Chamber Judgment. The background and major facts of the case were discussed in Chapter 9.

7 On other decisions of the ECHR against Turkey, see Chapter 5. 8 Refah Partisi (the Welfare Party) and Others v. Turkey (2001) (Applications nos

41340/98, 41342/98, 41343/98, and 41344/98). 9 Refah Partisi (the Welfare Party) and Others v. Turkey above n 6.10 Refah Partisi (the Welfare Party) and Others v. Turkey above n 8, para. 65.11 Ibid. para. 42.12 Ibid. para. 43.13 Ibid.14 Ibid.15 Ibid. para. 44.16 Ibid. para. 47.17 Ibid.18 Yasin Aktay, ‘European Values and the Muslim World: Turkish Cases at the

European Court of Human Rights’ (2008) 20(1) Global Change, Peace and Security, 107.

19 For more details on the principle of secularism in Turkey, see Chapter 9.20 Refah Partisi (the Welfare Party) and Others v. Turkey above n 8, para. 69.21 According to Article 68 of the Constitution of Turkey.22 Refah Partisi (the Welfare Party) and Others v. Turkey above n 8, para. 81.23 Refah Partisi (the Welfare Party) and Others v. Turkey above n 8, joint dissenting

opinion of Judges Fuhrmann, Loucaides, and Sir Nicolas Bratza. Unlike the Chamber judgments, noteworthy is the fact that the Grand Chamber handed down the unanimous decision that there had been no violation of the Convention.

24 Ibid.25 Ibid.26 Ibid.27 Ibid.28 Refah Partisi (the Welfare Party) and Others v. Turkey above n 8, para. 47.29 Refah Partisi (the Welfare Party) and Others v. Turkey. Grand Chamber Judgment

above n 6.30 Ibid. para. 57.31 Ibid.32 Ibid. para. 101.33 Ibid. para. 102.34 Ibid. para. 104.


35 Ibid.36 Ibid.37 Ibid. para. 105.38 Ibid. paras 123, 125.39 Goldhaber above n 5, 93.40 Refah Partisi (the Welfare Party) and Others v. Turkey. Grand Chamber Judgment

above n 6. Concurring opinion of Judge Kovler.41 Ibid.42 Ibid.43 Judge Kovler refers to John Griffiths, ‘What is Legal Pluralism?’ (1986) 24

Journal of Legal Pluralism and Unofficial Law, 1; Pierre Gannage, Le Pluralisme des Statuts Personnels Dans les Etats Multicommunautaires – Droit Libanais et Droits Proche- orientaux (Editions Bruylant 2001).

44 Leyla Sahin v. Turkey (2004) (Application no. 44774/98); Leyla Sahin v. Turkey (2005) (Application no. 44774/98). Grand Chamber Judgment.

45 Aktay above n 18, 105; Leyla Sahin v. Turkey (2005). Grand Chamber Judgment above n 44. Dissenting opinion of Judge Tulkens.

46 For details, see Christopher D Belelieu, ‘The Headscarf as a Symbolic Enemy of the European Court of Human Rights’ Democratic Jurisprudence’ (2006) 12 Columbia Journal of European Law, 573.

47 Serif v. Greece (2000) (Application no. 38178/97).48 X v. United Kingdom (1978) (Application no. 7992/77).49 Gunduz v. Turkey (2003) (Application no. 35071/97).50 Ibid. paras 63, 64.51 Ibid.52 Karaduman v. Turkey (1993) (Application no. 16278/90). Admissibility Decision.53 Bulut v. Turkey (1993) (Application no. 18371/91).54 Dahlab v. Switzerland (2001) (Application no. 42393/98).55 Ibid. paras 7–9.56 Lautsi and Others v. Italy (2011) (Application no. 30814/06). Grand Chamber

Judgment.57 For detail and commentary on the Lautsi case, see Christian Joppke, ‘Double

Standards? Veils and Crucifixes in the European Legal Order’ (2012) 54(1) Euro-pean Journal of Sociology, 97; Gabriel Andreescu and Liviu Andreescu, ‘The Euro-pean Court of Human Rights’ Lautsi Decision: Context, Contents, Consequences’ (2010) 26(9) Journal for the Study of Religions and Ideologies, 48.

58 Kokkinakis v. Greece (1993) (Application no. 14307/88); Hoffman v. Austria (1993) (Application no. 12875/87); Otto- Preminger-Institute v. Austria (1994) (Application no. 13470/87); Wingrove v. United Kingdom (1996) (Application no. 17419/90).

59 Belelieu above n 46, 604.60 Ibid.61 Leyla Sahin v. Turkey (2004) above n 44.62 Ibid. para. 97.63 Ibid. para. 66.64 Ibid. para. 67.65 Ali Ulusoy, ‘The Islamic Headscarf Problem before Secular Legal Systems:

Factual and Legal Developments in Turkish, French and European Human Rights Laws’ (2007) 9 European Journal of Migration and Law, 431.


66 See, for example: Aktay above n 18; Belelieu above n 46; Ulusoy above n 65; Antje Pedain, ‘Do Headscarfs Bite?’ (2004) 63 Cambridge Law Journal, 540; Patrick Macklem, ‘Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe’ (2012) 19(4) Constellations, 575; James Arthur and Michael Holdsworth, ‘The European Court of Human Rights, Secular Education and Public Schooling’ (2012) 60(2) British Journal of Educational Studies, 129; June Edmunds, ‘The Limits of Post- National Citizenship: European Muslims, Human Rights and Hijab’ (2012) 35(7) Ethnic and Racial Studies, 1181; Alicia Cebada Romero, ‘The European Court of Human Rights and Religion: Between Chris-tian Neutrality and the Fear of Islam’ (2013) 11 The European Journal of Human Rights and Religion, 75; Peter G. Danchin, ‘Islam in the Secular Nomos of the European Court of Human Rights’ (2011) 32 Michigan Journal of International Law, 663; Sara Tonolo, ‘Islamic Symbols in Europe: The European Court of Human Rights and the European Institutions’ (2014) 5 Rivista Telematica, 1; Eugenia Relano, ‘Educational Pluralism and Freedom of Religion: Recent Deci-sions of the European Court of Human Rights’ (2010) 32(1) British Journal of Religious Education, 19.

67 Leyla Sahin v. Turkey (2005). Grand Chamber Judgment above n 44. Dissenting opinion of Judge Tulkens.

68 Ibid.69 Ibid.70 Ibid.71 Case of Dogru and Others v. France (2008) (Application no. 27058/05).72 Ibid. para. 75.73 Ibid. para. 70.74 For a more detailed account of Refah interpretation of liberalism, see Macklem

above n 66.75 Refah Partisi (the Welfare Party) and Others v. Turkey. Grand Chamber Judgment

above n 6. Concurring opinion of Judge Kovler.76 Goldhaber above n 5, 95.77 See, for example, Seyyed Vali Reza Nasr, ‘The Rise of “Muslim Democracy” ’

(2005) 16(2) Journal of Democracy 13; Asef Bayat, ‘Islam and Democracy. What is the Real Question?’ (2007) 8 ISIM Paper 1; Edmunds above n 66; Danchin above n 66.

78 Bayat above n 77, 9.79 Ibid.80 Ibid.81 Ibid. 13.82 For details, see Danchin above n 66.83 See, for example, Kokkinakis v. Greece; Otto- Preminger-Institute v. Austria; Wingrove

v. United Kingdom above n 58.84 See, for example, the House of Lords Judgment in the case of Begum v. Denbigh

High School (R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants) [2006] UKHL 15 concerning a demand to wear jilbab on the school premises.

85 Danchin above n 66, 32.86 Ibid. 33.87 Ibid. 35.

Conclusion

Militant democracy was introduced to legal scholarship and constitutional practice in an attempt to address the challenges to democracies when there are attempts to attack and damage the democratic system from within. At the same time, the idea of democracies taking a militant stance against their perceived adversaries has been vehemently criticised since the concept first emerged in the 1920s. As a result, this book has acknowledged and emphas-ised that it is not right to praise the concept of militant democracy as a uni-versal model of behaviour. Not every democracy should adopt and apply militant democracy to its own set of circumstances. Its adoption must always be subject to caveats and never without reservations. The book has acknowledged that militant democracy is not the only option. There are a variety of more liberal alternatives which can be adopted instead. These may – in some circumstances – be preferable. However, this book demonstrates that there is a place for militant democracy, although it must never be adopted without caveats and reservations. This book has centred on the premise that democracy is an inherently liberal and accommodating system of governance based on a plurality of political ideas and opinions. These characteristics can facilitate the activities of groups and individuals who want to harm or overturn democracy by abusing or misusing democratic institutions and procedures such as free elec-tions, freedom of speech, and freedom of association. The possibility of such developments and behaviour is not a mere theoretical speculation, and also not a new idea. Democracy is a precarious thing and concerns about its sur-vival have occupied thinkers for many centuries. The archetypal example of how purely procedural democracy and unlimited tolerance towards intoler-ant political actors can become dangerous is the infamous electoral success of the Nazi Party and collapse of the Weimar Republic. Militant democracy is a concept that explains how democracy can protect its structures from such attempts and remain internally coherent. For the purpose of this book, militant democracy was defined as the capacity of liberal democracies to defend themselves against challenges to their continued existence by taking pre- emptive action against those who want to overturn or destroy democracy by abusing democratic institutions and procedures.

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Karl Loewenstein, the ‘founding father’ of militant democracy, character-ised specific features of fascism as an effective technique (but not ideology) which played a significant role in the tragic events of Weimar. According to Loewenstein, fascism had no proper intellectual content, but rather it greatly and successfully employed ‘emotional mobilisation’ as opposed to reason.1 Emotions provided the social and political cohesion necessary for the assumption of power through a legal and formally democratic electoral process. As a result, Loewenstein’s vision of militant democracy was tailored to the events of the interwar period in Germany. For this reason, we can legitimately doubt whether this concept has relevance for modern demo-cracies and constitutional practices. However, I have claimed that Loewen-stein’s ideas should not be read narrowly. Emotionalism is inherent in democracy, and individual rights tend to facilitate emotionalism only further, whereas democracy, especially in the form of representative govern-ment, was designed as a non- emotional system. Emotional politics is not a strategy exclusive to fascism and there are examples of contemporary polit-ical movements worldwide that are based on emotionalism, particularly of religious or ethnic origin. Therefore, militant democracy, as introduced and formulated by Loewenstein, is not an abstract or outdated theory, but rather can and should be ‘perceived as a set of measures directed against radical emotionalism, a technique that may be relevant in all situations and juris-dictions where emotionalism takes over the political processes’.2

Today, militant democracy is primarily understood as the fight against radical movements, especially radical political parties and their activities. In that form, it is usually agreed that militant democracy was first explicitly constitutionalised in Germany: the ‘cradle’ of militant democracy states. Originally, militant democracy was utilised to curb activities of fascist groups and movements with similar political affiliations. Later, the concept of militant democracy was widely utilised to suppress the activities of com-munist political parties. This was demonstrated by examples from Germany, Australia, and the United States. It was expected that the fall of communism would render militant democracy measures no longer necessary, given that so many were introduced to guard against the ‘threat’ of communism. However, many of the young European democracies that emerged after the fall of communism in the late 1980s included militant democracy provisions in their constitutions to protect their fragile democratic societies from the possibility of being undermined by former regimes. The most recent trend in the militant democracy debate emerged after the September 11 terrorist attacks, as the anti- terrorism policies and legisla-tion that followed brought issues of militant democracy back to the fore in constitutional and political discourse. Many Western democracies regarded themselves as implicated in an (un)declared war between extremist Islam and Western liberal democratic values. Interest was also boosted by the world’s heightened awareness of the threats posed by religious fundament-alism. Democracies worldwide had to accept that the electoral arena was not

208 Conclusion

merely ‘a forum for the recording of preferences, but a powerful situs for the mobilisation of political forces’.3 So, the possibility was raised that militant democracy could be used in a much wider sense, to protect democracy not only from undemocratic political parties but also from other emerging threats. Parts III and IV of the book investigated this claim and concluded that militant democracy is by no means a concept that is ‘withering away’, but rather is still seen in many nations as an important tool for protecting democracy from internal enemies, including those with religious and ter-rorist affiliations. This brings us to the question of ‘who are the enemies of democracy against which militant democracy can be used legitimately and effectively?’ Constitutional theory does not offer much clarification in terms of what exactly militant democracy protects, and what it protects from, apart from vague phrases and expressions. Unsurprisingly, the concept is referred to by some authors as ‘neither clear nor elegant’.4 Therefore, the answer should be sought in constitutional practice rather than theory. However, the answer is still not easily found, even after an analysis of constitutional provisions on militant democracy and their practical implementation in all modern demo-cracies. First of all, the scope of militant democracy measures is interpreted differently in every democracy. This is partially due to the fact that the defi-nition of ‘democracy’ still remains one of the fundamental unanswered ques-unanswered ques-ques-tions of political theory, engaging statesmen and philosophers in debate since ancient times.5 The case studies from various jurisdictions on the array of issues which trigger militant democracy application demonstrate that the militant democracy concept is context- specific and that each state may offer various justifications and reasons to introduce militant democracy measures. It is possible to make only some broad generalisations on who the enemies are that militant democracy rebuffs, and what it is that militant democracy protects, and this is best done by an examination of the historical develop-, and this is best done by an examination of the historical develop- historical develop-ment of the concept. As was mentioned above, militant democracy was con-the concept. As was mentioned above, militant democracy was con- concept. As was mentioned above, militant democracy was con-stitutionalised and first employed to neutralise fascist movements (in Germany and Spain). Later, the fear of communism made many countries adopt legislation against the possible rise of communism. In the aftermath of the collapse of the communist regime, many young democracies in Central and Eastern Europe followed the German example and introduced various elements of militant democracy into their new constitutions. The latter involved mostly restrictions imposed on political parties in the form of a priori prohibitions of parties adhering to certain ideologies, or requirements to have party programmes and activities compatible with major democratic principles. The events of September 11 expanded the militant democracy debate to include these concerns. Therefore, militant democracy does not only protect democracy from particular ideologies and movements, prede-fined as enemies of democracy at the time of a constitution’s drafting. Militant democracy has proven to be a dynamic concept, able to accom-modate different types of threats with different ideological foundations.

Conclusion 209

Any movement which aims to harm democratic structures and contradict the democratic foundations of a state by abusing democratic privileges can become an enemy of democracy and trigger the application of militant democracy measures. An enemy of democracy is not necessarily a political party but any group, association, or movement which competes for influence in public discourse, and takes part in influencing individuals as to the ‘fundamental choices in structuring their social life’.6 This conclusion, however, should come with a caveat that militant democracy measures, too, may be potentially abused for political purposes, especially in democracies that are not yet stable. Therefore, strong justification and procedural guaran-tees must be observed on every occasion of militant democracy’s practical application. This is important to prevent the labelling of every unpopular or unwanted group – or simply all those in opposition to the government – as ‘enemies of democracy’. This book has not idealised militant democracy nor has it promoted it as a universal panacea. While the concept of militant democracy might be attractive to those concerned with the protection of democracy generally, it nevertheless requires careful consideration. There are many questions, con-cerns, and challenges about the concept that remain unresolved, despite the substantial constitutional practice in support of it. The potential pitfalls of militant democracy are easily identifiable both in the realm of constitutional jurisprudence and in theory. The book has acknowledged such concerns and examined the practice of various states in light of these difficulties. The major point of criticism starts with the statement that the concept of militant democracy provides an alternative perspective to the liberal view of the state. Under that view, democracy is understood as an accommodating political system premised on the existence of a plurality of ideas and opin-ions. Liberal political theory generally makes the strong and emotional argu-ment that harmful rhetoric is best counteracted with more rhetoric. This view also suggests that suppression of free speech and political expression can be ineffective and even counterproductive. Therefore, concerns are often raised about how democracy can run into self- contradiction by limiting fundamental rights and liberties in order to secure the very existence of those rights. In other words, can democracy behave in a militant way while remaining true to itself? Loewenstein was himself aware that it might be a difficult task for any democracy to curtail these freedoms ‘without destroy-ing the very basis of its existence and justification’.7 This caution is fully applicable to modern democracies and it means that any militant democracy measures would require extensive explanation and justification from govern-ments, especially in jurisdictions with strong democratic traditions and an effective system of fundamental rights protection. This conclusion has important implications for the application of militant democracy in trans-itional or not yet stable democratic regimes. Some commentators suggest that militant democracy is a phenomenon of transitional constitutionalism only, and that

210 Conclusion


There is considerable debate among scholars about whether new democracies should resort to militant democracy measures in the early years of their exist-ence. Suggestions that the mechanism can be more plausibly utilised during democratic transitions is supported by observations from practice that trans-itional militant democracy measures can assist in countering the re- emergence of former ruling parties and can therefore greatly contribute to political stabilisation.9 At the same time, suppression of political liberties in a transitioning democratic system might cause more controversies than it quells and could pose a very challenging task for the judiciary to rule on the dissolution of political parties in situations where democratic structures are still too fragile to ensure the right balance between freedoms and the need to protect democracy. In this respect, the book has provided examples in support of both approaches. Thus, in Germany the past experience of author-itarian rule led to an endorsement of party dissolution procedures being enunciated in the national constitution and being put into practice. On the other hand, Spain, during its transition to democracy, chose to be exception-ally tolerant towards all political ideologies and considered the possibility of party dissolution as a typically authoritarian measure which would harm rather than protect a newly established democratic regime. Spain did not adopt a militant democracy stance until decades after its transition to demo-cracy was initiated. Case studies of the post- communist European demo-cracies revealed that militant democracy has had an important symbolic meaning, signifying a total disconnection from the previous regime in the eyes of the citizens and the international community. Notably, some states have so far demonstrated a general hesitance to actively apply available con-stitutional militant democracy measures during their transition, which indi-cates a balanced approach that understands the dangers and controversies of militant democracy. This reaffirms the argument that the presence (or absence), as well as the practice, of militant democracy is context- dependent. There is no universal solution as to when militant democracy should be introduced or how democracies should protect themselves, just as there are no two democracies with identical histories and concerns that they wish to address through constitutional militancy. Therefore, constitutional theory suggests that militant democracy can be more justified in fragile regimes than stable democracies but constitutional practice demonstrates that militant democracy can be utilised at any stage of democratic evolution. The latter allows militant democracy to accommodate states’ policies in relation to ‘new’ types of threats which might challenge the democracy down the track.

Conclusion 211

In addition to the theoretical and normative pitfalls, the concept of militant democracy can pose serious practical challenges once democracy decides to take a militant stance. This was demonstrated through case studies on the application of militant democracy in different jurisdictions and in relation to various ‘enemies’ of democracy. The major practical concern is that militant democracy was considered in this book as a set of preventive legal measures that might restrict certain rights and freedoms to protect democracy from being destroyed by internal antidemocratic forces. In this respect, democracies applying militant democracy measures face the same problem they would with any other preventive rights- restricting tech-niques – that is, that they are prone to excess.10 There are legitimate con-cerns that militant democracy can ‘cast its net too widely’11 and capture far more than is needed to sustain democracy. In this respect, the justification given by the government for militant democracy measures might be highly contested by political opponents and supporters of the liberal view of demo-cracy, given the absence of a general and precise definition of militant demo-cracy and its preventive rights- restricting nature. The case studies on militant democracy practice in Europe concluded with the statement that democracies are in general capable of considered application of this concept in practice. This is especially evident from the treatment of political parties in the region. Most democracies (and perhaps all liberal democracies) acknowledge the importance of political parties and therefore tend to protect the freedom of their activities even where they advocate for constitutional and territorial changes. This statement, however, is not equally valid in con-sidering the approach taken by some states to political parties with certain religious affiliations and the treatment of the presence of religious symbols in public. The Refah Party judgment as well as decisions of the European Court of Human Rights on Islamic headscarf bans indicate that militant democracy techniques are not only prone to excess, but have been abused. It is clear how and why political parties affiliated with Islam and the prohibi-tion of Islamic religious symbols in public are placed in the paradigm of militant democracy in the aftermath of the 9/11 attacks. Militant democracy is a dynamic and accommodating concept the state can refer to while taking preventive measures to protect the democracy from being harmed or destroyed by various threats, including newly emerged ones. This, however, does not mean governments are freed from the responsibility to provide jus-tification for such policies. More worryingly, the rhetoric of militant democracy can be manipulated and misused by politicians – especially those in charge of ‘contested’ liberal democracies – in the name of supposedly ‘real democracy’. Militant demo-cracy does pose a risk of being misused or even abused as it very often comes dangerously close to the realm of politics. Preventing scenarios where the leading political groups resort to militant democracy measures to silence political opponents or other unwelcomes can be construed as one of the most serious challenges of militant democracy. The example of Turkey

212 Conclusion

demonstrated how the government can interpret and apply militant demo-cracy in a fashion to serve their political ‘dreams’ of achieving an ideal society. Militant democracy has been utilised in Turkey on a regular basis to suppress political discussion on important ethnic and religious issues. The very existence of a debate on the plight of Kurdish minorities and the desire for a more prominent role of religion in public was perceived as threat to democracy. As of yet, there is no clear and precise technique, apart from judicial oversight, that has been developed to detect and prevent abusive militant democracy practices. The situation of democracies abusing or mis-using militant democracy is not frequent though. Rather, democracies struggle with interpreting and applying this notion to ‘new’ types of threats, and this results in a negative perception of militant democracy as a theoret-ical and practical tool to protect democracies from its potential internal enemies. The practical application of militant democracy is further complicated by the difficulty of selecting the right moment to invoke such measures. It is not easy to draw a clear line between acceptable critiques of a democratic regime, and a direct or indirect attack on the foundations of the regime. That is, how can we define the point at which democracy is endangered and, more importantly, who should make such a decision? Constitutional theory and practice do provide any general instructions to democracies on how to deal with this matter due to the diversity of constitutional experiences and the various arrangements that modern democracies provide. The difficulty is explained by the fact that no two democracies are ‘like peas in a pod’,12 as every society opts for the form of democracy and protective measures it con-siders correct, fitting, or tolerable. All case studies have demonstrated that the decision to initiate an application of militant democracy lies in the hands of the executive but that the final say comes in most instances from the judi-ciary. In this respect, militant democracy is no different from any other pre-ventive measure that states can take to protect public order and health, national security, and the life of citizens. An independent and competent judiciary is crucial for any situation when governments restrict our rights and freedoms. It is especially significant in the case of militant democracy measures given the importance of the protection of democratic integrity and coherence, and the ease with which governments can manipulate public opinion and judicial perception of the situation when democracy is suppos-edly ‘at risk’. It was acknowledged and demonstrated how the application of militant democracy can be difficult in terms of effectiveness, even where such meas-ures appear to be justified. The example of Turkey illustrates how militant democracy, as practised by the government and Constitutional Court, has created an ‘unhealthy’ political climate where political parties with unwel-come agendas have been forced to develop a so- called ‘spare- party’ system in order to continue engaging in politics. Further, where a state decides to ban political parties, it may have to face disgruntled voters who supported the

Conclusion 213

party and have now lost their ‘voice’ in the parliament. Such a situation occurred in Turkey in 1998 when Refah was dissolved. At that time, Refah was the largest political party in Turkey, with a total of 158 out of 450 seats in the national parliament. The dissolution of the single largest party is undoubtedly problematic for any government at any time. Furthermore, the effectiveness of militant democracy is seriously affected by a justified fear that political groups with aggressive tendencies can become even more violent and disobedient if their associational rights are suppressed. Such con-cerns were present in Germany in a recent attempt to dissolve the National Democratic Party of Germany in 2003. Germany’s previous experience in the 1990s of using widespread repressive measures against extreme right groups had demonstrated that such an approach would not necessarily halt the rise of violence but would rather result in increased mobilisation by the targeted groups and the calcification of their ideology.13 That is why demo-cracies are advised to ensure that militant democracy measures are legiti-mate, timely, and justified. And it is no less important to apply such measures in an effective way so that they protect democracy and not harm it. The book has demonstrated that this mission is difficult but not impossible. Most of the jurisdictions included in the case studies prove to be capable of handling this task – though with varying degrees of success. The pitfalls and concerns, both theoretical and practical, outlined throughout the book have reaffirmed the earlier claim that militant demo-cracy is not to be treated as a panacea for every democracy in every tribula-tion. At the same time, it should not be interpreted as discouraging democracies from considering militant democracy measures in situations where democratic systems come under fire and where their continued exist-ence is at stake. Rather, it signals that militant democracy requires careful consideration and strong justification to form part of legitimate and effective democratic governance. The constitutional practice of various states demon-strates that democracies attempt to follow this advice and provides ample evidence that the numerous risks and challenges described above do not deter democracies from opting to use militant democracy measures. Instead, it appears that militant democracy is emerging as a new archetype of state-hood14 and over the past few decades it has developed as an important way of understanding constitutional systems around the world. The claim was made in this book that it is hard to find a modern consti-tution completely lacking militant democracy provisions, even where there is no precise reference to the militant character of a state. Democracies are always more or less militant15 as the state’s most natural characteristic is self- defence.16 In order to identify a particular democratic regime as militant or purely liberal, it is important to be aware that it is not only national consti-tutions that should be scrutinised to detect the presence of militant demo-cracy measures, but ordinary legislation as well. Further, a list of militant democracy measures was provided to guide the reader through various con-stitutional practices and assist in labelling democracies as militant or not.

214 Conclusion

Finally, militant democracy was distinguished from other regimes where human rights might be limited. The conclusion is that militant democracy states are no longer a rare phenomenon. The list of countries where militant democracy is present is, by some counts, a rather long one. Given that militant features can only be granted to democracies by either national constitutions or ordinary legislation, the list of measures has narrowed since Loewenstein’s time, yet the scope of application of militant democracy has expanded in the past decade or so. Democracies do not hesitate to entrench elements of militancy in their constitutional systems, not only so they may apply them in practice, but also to make democracy’s potential enemies aware that there are legal means to counteract any efforts to cause harm to democracy from within. I also examined the question of whether militant democracy has been endorsed in any way by public international law. As a matter of fact, it has a prominent role in the constitutional development of modern democracies, especially in the domain of human rights and in the context of a commit-ment to major democratic principles such as the rule of law, separation of powers, and representative governments. In this respect, it is legitimate to ask if this area of law offers any guidance or suggestions as to whether and when democracies should resort to militant democracy measures and if the militant character of a democracy can be considered a positive obligation imposed on democratic states due to their participation in various inter-national treaties. It appears that public international law does promote a rather substantive view of democracy and does not contain any rule that militant democracy measures, as such, are contradictory to states’ inter-national obligations. The consistency with international human rights stand-ards should be assessed on a case- by-case basis, but in general states are allowed to utilise militant measures to protect democracy. Scholars, however, remain cautious in declaring that militant democracy measures can be rightly perceived as positive obligations imposed by public international law. However, there are some signs of moving towards the development of such an obligation, at least in certain cases and in certain international institutions. Although militant democracy is not an ideal solution and comes with various challenges, both theoretical and practical, it continues to play an important role in safeguarding democracies. This is largely due to the fact that the difficulties associated with militant democracy are serious but not insurmountable. There is no shortage of suggestions in constitutional theory and practice on how to overcome potential risk and why militant democracy is a justified measure. Thus, one of the techniques to ensure militant demo-cracy does not become a powerful weapon in the hands of governments pur-suing political goals and projects was offered by Loewenstein. He claims that the possible negative effects on fundamental rights and freedoms can be minimal in democracies where fundamental rights are institutionalised and taken seriously. It is common to point to the fact that constitutional and

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legislative norms on human rights generally wield sufficient power to coun-teract governmental policies imposing limits on rights and freedoms, and that individual rights ‘should be protected as a central and constant feature of the modern democratic state’.17 Loewenstein continues that ‘if democracy believes in the superiority of its absolute values’18 over the politics of emo-tions, it must meet the demands of reality and make every effort to rescue it, ‘even at the risk and cost of violating fundamental rights’.19 Further justi-fication in support of militant democracy emerges from the debate on intol-erant political actors. The view is that an intolerant reaction from democracies is justified by the mere presence of intolerant actors in the first instance. Thus, Locke, Popper, Rawls, and other thinkers argue that limits on freedom of the intolerant can be legitimate and justified for the sake of preserving tolerance and democracy. Modern democracies, including those analysed in this book, mostly rely on this particular justification to include militant democracy provisions in national constitutions and apply them in practice. Modern democracies are run by majority rule. Unconditional adherence to this principle, however, might lead to the deformation of democracy and the establishment of regimes that dissolve it. In the absence of any substantive limitations imposed on democratic procedures, democracies can find them-selves defenceless against popularly supported organised political forces aiming to damage or destroy democracy. Militant democracy imposes con-ditions on political participation and therefore can prevent the emergence of groups and movements that can subvert democracy once they gain power. In addition, militant democracy, at least in some of the jurisdictions included in this book, impose limits on the outcome of the democratic process via protecting certain constitutional principles from amendment or abolition. In other words, militant democracy can assist in preventing the paradox of majority rule becoming reality by ensuring that the foundations of the constitutional order cannot be suspended through a prescribed procedure, regardless of how much support this decision might have. The case studies have demonstrated that modern democracies see self- defence as the state’s most natural characteristic and democracies are, in particular, keen to refer to this rationale where specific historical circumstances moulded the democracy to have a precautionary character and become a militant one. This was demonstrated by examples from Germany, Spain, Turkey, and European democracies that emerged after the fall of com-munism in the late 1980s. Further, the critique of the concept of militant democracy can be answered by simplistic arguments. First of all, democracy cannot afford to remain inactive when its basic structures are being attacked and could be possibly abolished. Otherwise, democracy turns into self- contradiction. Moreover, there is an identifiable difference between those who disagree with some democratic policies and those who deny democracy as a primary process of decision- making.20 Militant democracy targets the latter group only, and

216 Conclusion

the former enjoys the same level of protection as any other political party. When it comes to the difficulty with defining the right moment to invoke militant democracy measures, the judiciary is involved in all jurisdictions to assess the arguments of the government and take into account the current conditions and degree of the threat. Judicial control is imperative as militant democracy measures may come dangerously close to limiting fundamental rights. The rule of law as one of democracy’s foundational principles presup-poses judicial interference where rights are at stake. In many, but not all, instances, the courts have proven cautious and have insisted on compliance with procedural rules and requirements before approving a government’s motion to impose limits on political participation rights for the sake of democracy’s self- preservation. Judicial control plays a role in preventing misuse of militant democracy measures, and the judiciary is responsible for enforcing legal standards in limiting fundamental rights for the sake of pro-tecting a democracy. The dilemma is effectively addressed in democracies where fundamental rights are institutionalised and perceived as the ultimate goal of the constitutional regime. The absence of a general legal or proper normative theory of militant democracy was highlighted as one of the concerns democratic governments can face when deciding to apply militant democracy measures. However, it is not the case that militant democracy is a completely abstract and unde-fined idea. For example, as was detailed in Chapter 4, at the very beginning of constitutional militancy’s history, the Federal Constitutional Court of Germany was clear about what place it should occupy in the constitutional system and what qualities it would add to democracy. Thus, in the Commu-nist Party of Germany case, the Court explained that the framers of the Basic Law had intended in Article 21(2) to ensure that the very principles of the democratic state should be protected and preserved, and that this could be done through measures directed at affecting the rights and freedoms of those who would seek to destroy the existing order. The intentions of the ‘found-ing fathers’ were based on tragic historical experience, which convinced them that democracy can no longer remain wilfully blind to the antidemocratic tendencies of some parties, and there should be some limits placed on their activities. Militant democracy was declared a constitutional value.21 I believe this can be treated as a starting point in marking bound-aries between ordinary democracy and militant democracy. An attempt to define the constitutional concept of militant democracy in more precise terms would limit the meaning and application of the concept and would make it resistant to new developments and threats that democracies will have to face in future generations. Militant democracy is not a universal stencil that can be applied to any democratic state in strife. Rather it is a concept with a precise purpose, conditions of legitimacy, and fundamental features: the particular characteristics of every democracy and every applica-tion of such measures should complement these features with its own meaning and justification. This is why legal and political theory has

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struggled to provide a general normative framework for the concept of militant democracy. I believe this can be achieved only through analys-ing militant democracy practices in various jurisdictions. This book has defined militant democracy broadly and treated it as a particular capacity of liberal democracies to defend themselves against challenges to their con-tinued existence. I believe this understanding of the concept accommodates all features of a militant democracy state, while allowing democracies to tailor it to local circumstances so as to capture new threats to democracies that can emerge down the track. The major contribution of this book to the militant democracy debate has been the analysis of the extension of the militant democracy principle beyond its traditional scope of application. The argument was tested in two case studies devoted to the application of militant democracy to address the threat of growing fundamentalist religious movements and the threat of terrorism. The case study on militant democracy as applied to counter- terrorism was inspired by the current anti- terrorism policies of various states. Those policies often go beyond established paradigms of constitu-tional normality and states of emergency. The basic proposition of this case study was that there is no necessity to invent a new constitutional framework to accommodate counter- terrorism measures, as they can be managed through an adjustment of the militant democracy principle to a new reality. This not only brings more legitimacy to anti- terrorism pol-itics, but also presents an opportunity to cure some flaws of the existing regimes. The book did not argue that the fight against terrorism could be addressed through the classical militant democracy measures like prohibi-tion of dangerous political movements only. The claim was rather that states facing the threat of terrorism should be guided by militant demo-cracy logic. The latter allows states to take measures of a preventive charac-ter, but only when the necessity to invoke such measures is present, and under a regime of strict procedural guarantees. This should be applicable both to the content of the anti- terror laws adopted and to the way they are applied. Militant democracy’s main rationale and goal is to protect the existing constitutional system by denying rights and freedoms to those who are pre-sumed to be seeking to abuse, destroy, or damage the system. There are close relations that could be observed between activities of terrorist groups and fundamentalist political movements.22 As Karl Loewenstein argued, emo-tionalism is the glue that holds authoritarian regimes together and replaces the rule of law at the end. In this regard, emotionalism of terrorist move-ments is not very different from what drives extreme political parties.23 In addition, the main methods used by terrorism – fear and intimidation – also create a kind of politics of emotion.24 Tolerance of emotionalism attributed to any actor, be it extreme political parties or terrorist movements, can be fatal for democracy, and there must be a mechanism present to subvert such activities. Militant democracy was introduced to constitutional theory and

218 Conclusion

practice to cure exactly this disease and its experience could be applied to address the threat of terrorism too. Not only does militant democracy has relevance to anti- terrorism meas-ures, but also it could give them more legitimacy. Thus, a legitimate application of militant democracy logic secures the preservation of the sepa-ration of powers balance without favouring the executive and denying the judiciary its traditional functions. Also, it does not diminish the role of par-liaments by scrutinising the laws they are asked to adopt, often with immense pressure from the side of the executive. One of the biggest chal-lenges for parliaments in enacting and reviewing anti- terrorism laws is that it is very hard to control the executive and resist its pressure. At the moment, there are not many signs that parliaments seriously consider reviewing previously adopted laws and remedying the problems those laws create. Further, militant democracy requires governments to give stronger justifications for proposed measures than in the anti- terrorism paradigm. If an anti- terrorism policy were located within the militant democracy frame-work, then it would decrease executive privileges in deciding which kind of measures it can take, which rights to limit, and to what extent standards of rights protection can be ignored. While it is common to hand over matters of national security to the executive, it should not be unlimited and left uncontrolled. In other words, governments should reshape their anti- terrorism policies and consider militant democracy as a guiding principle to a more effective and legitimate way of curbing the threat of terrorism. The case studies of Spain and Australia indicate that militant democracy has the potential to be applied as part of a counter- terrorism regime and even assist in improving the current situation for anti- terrorism policies in selected jurisdictions. While the concerns of existing anti- terrorism regimes in these two jurisdictions vary to some extent, they are nonetheless both concerned with adherence to democratic principles during times of stress. It was demonstrated that militant democracy might assist in bringing anti- terrorism policies into greater compliance with a constitutional regime, and institutionalise preventive measures to fight terrorism through the prism of this concept. The case studies on militant democracy and religious extremism demon-strated that the concept is of relevance for states’ policies to address threats coming from growing extremist religious movements. Where militant democracy is properly applied, it would lead to more successful democratic solutions than are present in Turkey, France, the United Kingdom, and other states. The survey reveals that national legal systems as well as inter-national institutions for human rights protection implement militant demo-cracy elements to justify state policies and judicial decisions in relation to the alleged threat coming from certain religious movements. However, the case studies demonstrated that a deeper and consistent understanding of the militant democracy notion as well as conditions of its application are missing from the jurisdictions analysed. In Turkey, militant democracy is widely

Conclusion 219

utilised to pursue a political ideal: secularism and unity of the state. The language of the ECHR changes radically when it has to decide on the ban of religious parties affiliated with Islam and on the presence of religious attire in public. Using militant democracy justifications, the ECHR went as far as to declare Islam incompatible with democracy and an Islamic headscarf as a symbol of an oppressive political regime. Militant democracy is of potential use to guard the democratic perimeter from religious extremism. However, at present the judiciary is not equipped to go further than accepting the militant democracy rationale provided by the government without undertaking a proper balancing exercise to investi-gate how real the threat this and whether it is sufficient to attract the application of militant democracy measures. Therefore, both jurisdictions included in the case studies need to reconsider their approach towards the alleged threat of religious extremism and implement militant democracy in a stricter way, to ensure not only that the rationale is applied, but that all conditions of its legitimacy are observed. To conclude, when Loewenstein wrote his essays, he had the danger of the fascist movement in mind. Nevertheless, this book finds his remarks applic-able to the present- day reality in the business of protecting democracy against its potential enemies: ‘Much has been done; still more remains to be done.’25 This statement is applicable not only to the fact that democracies are not immunised from the new types of threats emerging but also to the mastering of the current techniques by developing a more consistent and legitimate approach to the militant democracy principle in practice. I fully agree that democracy should not be over- optimistic about existing and potential future enemies of democracy. Democracy can successfully exercise its functions even without regular reference to militant democracy measures in practice. The case studies demonstrate that the presence of militant demo-cracy measures in the texts of the national constitutions does not necessarily result in their frequent application. The overall tendency is that states are cautious regarding the banning of political parties and imposing similar limitations on participants in political discourse. However, the presence of a militant democracy arsenal in the constitutional structures affords more con-fidence to democracy, especially in the case of young or transitional demo-cratic states. I agree with Loewenstein: ‘successful defence [. . .] depends on too many factors’.26 He suggests that such factors include at least ‘national traditions, economic considerations, the social stratification, the sociological pattern and the specific juridical technique of each individual country, as well as the trend of world politics’.27 This was fully reaffirmed by various examples from militant democracy practice. Every democracy has its own reasons and con-cerns behind a decision to utilise militant democracy, and every democracy will do this in its own way. This was the main reason I strived to avoid over- generalised statements about militant democracy’s definition, area of applica-tion, and justification.

220 Conclusion

Furthermore, Loewenstein argues that

salvation of the absolute values of democracy is not to be expected from abdication in favour of emotionalism, utilised for wanton or selfish pur-poses by self- appointed leaders, but by deliberate transformation of obsolete forms and rigid concepts into the new instrumentalities of ‘dis-ciplined’, or even – let us not shy from the word – ‘authoritarian’, democracy.28

In the end, Loewenstein argues that ‘democracy has to be redefined’29 and ‘liberal- minded men’30 should apply the discipline of democracy ‘for the ulti-mate ends of liberal government: human dignity and freedom’.31 It is detri-mental for democracy’s survival to neglect the experiences of deceased democracies;32 therefore, constitutional theory and practice should be on guard to protect democracy from the unfortunate mistake of giving its deadly enemies the means by which they may destroy it.

Notes

1 András Sajó, ‘Militant Democracy and Emotional Politics’ (2012) 19(4) Constellations, 562.

2 Ibid. 3 Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120 Harvard Law Review 1410. 4 Kevin Boyle, ‘Human Rights, Religion and Democracy: The Refah Party Case’

(2004) 1(1) Essex Human Rights Review, 1. 5 Gregory H Fox and George Nolte, ‘Intolerant Democracies’ (1995) 36 Harvard

International Law Journal, 2. 6 András Sajó, ‘Militant Democracy and Transition Towards Democracy’, in András

Sajó (ed.), Militant Democracy (Eleven International Publishing 2004), 210. 7 Karl Loewenstein, ‘Militant Democracy and Fundamental Rights I, II’ (1937) 31

American Political Science Review (1937), 431. 8 Ruti Teitel, ‘Militating Democracy: Comparative Constitutional Perspectives’

(2007) 29(1) Michigan Journal of International Law, 49. 9 Angela K Bourne, ‘Democratisation and the Illegalisation of Political Parties in

Europe’ (2011) 7 Working Paper Series on the Legal Regulation of Political Parties, available at www.partylaw.leidenuniv.nl/uploads/wp0711.pdf, accessed 30 June 2014.

10 Sajó above n 1, 562.11 Jan- Werner Muller, ‘A Practical Dilemma Which Philosophy Alone Cannot


12 Markus Thiel, ‘Comparative Aspects’, in Markus Thiel (ed.), The ‘Militant Demo-cracy’ Principle in Modern Democracies (Ashgate 2009), 398.

13 See, for example, G Brinkmann, ‘Militant Democracy and Radicals in the West German Civil Service’ (1983) 46(5) The Modern Law Review, 584; Karrin Hanshew, ‘Daring More Democracy? Internal Security and the Social Democratic Fight against West German Terrorism’ (2010) 43 Central European History, 117;

Conclusion 221

Gillian More, ‘Undercover Surveillance of the Republikaner Party: Protecting a Militant Democracy or Discrediting a Political Viral?’ (1994) 3(2) German Pol-itics, 284; Michael Minkenberg, ‘Repression and Reaction: Militant Democracy and the Radical Right in Germany and France’ (2006) 40(1) Patterns of Prejudice 25; Robert A Monson, ‘Political Toleration versus Militant Democracy: the Case of West Germany’ (1984) 7(2) German StudiesReview, 301.

14 Patrick Macklem, ‘Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe’ (2012) 19(4) Constellations, 576.

15 Otto Pfersmann, ‘Shaping Militant Democracy: Legal Limits to Democratic Stability’, in András Sajó (ed.), Militant Democracy (Eleven International Publish-ing 2004), 53.

16 Sajó above n 6, 213.17 Fiona De Londras and Fegral F Davis, ‘Controlling the Executive in Times of

Terrorism: Competing Perspectives on Effective Oversight Mechanisms’ (2010) 30 Oxford Journal of Legal Studies, 45.

18 Loewenstein above n 7, 432.19 Ibid.20 Sajó above n 6, 211.21 Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of

Germany (Duke University Press 1997), 223.22 András Sajó, ‘From Militant Democracy to the Preventive State’ (2006) 27

Cardozo Law Review, 2255.23 Ibid.24 Ibid. 2263.25 Loewenstein above n 7, 656.26 Ibid. 657.27 Ibid.28 Ibid.29 Ibid.30 Ibid. 658.31 Ibid.32 Ibid.

Index

AK Party, Turkey 176–7Alien Registration Act (USA) 23n42Amaiur party, Spain 138anti-terrorism see counter-terrorismAnti-Terrorist Liberation Groups, Spain

130ASIO 149–50association, freedom of see freedom of

associationAtaturk 170Australia: ASIO 149–50; and banning

of political parties 70–4, 145, 146; and communism 15, 70–4, 146, 147; constitution of 71, 72–3, 144, 145, 146, 147–8; control orders 146, 147–8, 149, 150–3; counter-terrorism measures 145–60; criticism of anti-terror measures 156–60; defence power 145, 146, 147–8; Federal Police (AFP) 151–2; human rights 156, 158–9; judicial review 70–4; pre-emptive policy 150–4; preventive detention order 150, 153–4; proscription regime 154–5; unlawful associations 145–6

Australian Federal Police (AFP) 151–2Australian Security Intelligence

Organisation (ASIO) 149–50

Balad party, Israel 118, 121n50Basic Law, Germany 12–13, 43–5, 66;

Article 9 68; Article 9(2) 43, 86n87; Article 18 43; Article 21 15, 43–4, 66–70, 75–7; Article 21(2) 68, 76–7, 80, 216; Article 33(5) 44

Basic Law on Knesset, Israel 117

Basques 126–30, 133–5Batasuna Party, Spain 54, 103, 125,

129, 131, 133, 134–8Bharatiya Janata party (BJP), India 114Bishara, Azmi 118Blum, Leon 27Bulgaria 93, 101

Cariolou, Leto 50Central Elections Committee, Israel

115–16, 118Christian Democratic People’s Party v.

Moldova 101–2Christianity: protecting rights 196,

200; use of militant democracy by 199

civic society 20civil service: in Czech Republic 94–5;

and duty of loyalty 44, 78–9, 94–5; in Germany 44, 78–9; in post-communist states 94–5

Cold War see communismCommonwealth of Australia Bill (1891)

145Commonwealth Parliament, Australia

71, 146, 147–8communism: in Australia 15, 70–4,

146, 147; in Germany 44, 67, 75–9, 97, 216; and militant democracy 15, 44, 51, 70–9, 89–95, 98–104, 146, 210, 216; in post-communist democracies 44, 49, 51, 89–95, 103–4, 210; in Turkey 98–9, 100–2; in USA 15, 74–5

Communist Party Dissolution Act (1950), Australia 71–3

Index 223

Communist Party of Australia 70–4, 146Communist Party of Germany (KDP)

67, 75, 78–9, 216Constitutional Court, Spain 133–4, 137Constitutional Court, Turkey 171, 173,

174, 175, 176–7, 180, 182constitutional militancy 44, 65–70,

71–4, 92constitutional patriotism 16constitutional theory 16–21, 36–7, 73,

208, 210, 212, 214constitutions: American 14, 27, 36;

Australian 71, 72–3, 144, 145, 146, 147–8; constitutional patriotism 16; constitutional theory 16–21, 36–7, 73, 208, 210, 212, 214; French 14; German 15, 43, 44, 65–6; Indian 111, 113; Israeli 115, 116, 118; Italian 15; in new democracies 89–93; post-war Europe 88; Spanish 41–2, 127–8, 129, 130, 131, 133–4; transitional constitutionalism 36, 48–51, 209–10; Turkish 169, 170–2; unalterable core of 14, 15, 17, 33, 43

control orders 146, 147–8, 149, 150–3Convention on the Elimination of all Form

of Racial Discrimination 54Council of Europe see European

Commission for Democracy through Law (Venice Commission); European Convention on Human Rights; European Court of Human Rights

counter-terrorism: in Australia 145–60; and banning of political parties 54, 117–18, 128–38; control orders 146, 147–8, 149, 150–3; as extension of militant democracy principle 16, 45–6, 217–18; in Israel 117–18; in post-communist states 94; preventive detention orders (PDO) 150, 153–4; proscription regime 154–5; in Spain 54, 125–38

Czech Republic 93, 94

Dahlab v. Switzerland 195–6democracy: and constitutional theory

16–21, 36–7; defence of 13–14, 219–20; democratic theory 16–21; and emotionalism 13, 28, 34, 207,

217; enemies of 208–9; fragile 50; human rights in 26–8, 29, 32, 35, 36, 37–8, 46–8, 52, 158–9, 214–15; liberal democracy 11–13; and liberal political theory 26–7; new democracies 50, 88–95, 209–10; paradox of 1, 11; procedural 17; self-preservation instinct 33; stable ones 51; substantive 17; and tolerance 17–20; transitional 16, 36, 48–51, 89–95, 101–4, 209–10; Weimar Republic 11–13; see also constitutions; militant democracy, concept of

Denmark 20detention of suspects 130, 149–50,

153–4dictatorships 12, 65–6, 126, 128dissolution of political parties see political

parties, banning/dissolution ofDogru v. France 197–8

El-Ard movement, Israel 115elections: and banning of political

parties in Israel 115–19; restrictions on electoral speech in India 110–15

emotionalism 13, 28, 34, 207, 217ETA, Spain 125, 128–9, 130, 131, 133,

134, 135, 137–8European Commission for Democracy

through Law (Venice Commission) 102–3

European Commission of Human Rights 97–8

European Convention on Human Rights 95–100, 193; Article 9 196–7, 200; Article 10 96, 99–100, 135; Article 11 95–6, 98–100, 135, 191; Article 17 96–8

European Court of Human Rights: and banning of political parties 54, 91, 95–104, 134–5, 190–4, 199–202; and fragile democracies 50; and headscarf ban 194–8; and Islam 45, 193–4, 198, 199–202, 219; and racist organisations 54; and secularism 189–202; three-prong test 193; and transitional constitutionalism 36, 50; treatment of Islam and Christianity 199–202

224 Index

European Union, and democracy 53–4; see also European Commission for Democracy through Law (Venice Commission); European Convention on Human Rights; European Court of Human Rights

Euskadi see Basques

fascism 13, 27–8, 33–4, 42Federal and State Bureaux for the

Protection of the Constitution, Germany 78

Federal Constitutional Court, Germany 67–70, 75–9, 80–1

Fox, Gregory 17, 52–3France 14; 107n50, 130, 197–8Franco, General 126–7, 129free speech: in Australia 149; and

European Convention on Human Rights 96, 99, 100, 101; and European Court of Human Rights 190; in India 110–15; in USA 26, 74

freedom of association: in Australia 145–6; and European Convention on Human Rights 95–6, 99–100, 101; in Germany 43

GAL, Spain 130Garibaldi, Oscar 52German Communist Party (KDP) 75–9,

97Germany: banning of political parties

30–1, 43–4, 50, 66–70, 75–81, 213; Basic Law 12–13, 15, 43–5, 66–70, 75–7, 80, 86n87, 216; civil servants 78–9; and communism 15, 44, 75–9, 97, 216; constitution of 15, 43, 44, 65–6; and constitutional militancy 65–70; contemporary militant democracy 43–5; as cradle of militant democracy 15; and democratic transition 50; and fascism 13–14; Federal Constitutional Court 67–70, 75–9, 80–1; and Loewenstein, Karl 13–14; loyalty tests 79; and radicals 78–80; special status of political parties 43–4, 66–70, 75–8; Weimar Republic 1, 11–13, 65–6

Glimmerveen and Hagenbeek v. Netherlands 97–8

Goebbels, Paul Joseph 1, 11Grand Chamber, ECHR 192, 193Greece (Ancient) 14Guidelines on Prohibition and Dissolution of

Political Parties and Analogous Measures (Council of Europe) 103

Gunduz v. Turkey 195

Habermas, Jürgen 16headscarf ban 176–9, 181, 182–3,

194–8High Court of Australia 146, 147–8High Court of Bombay 112Hitler, Adolf 12, 65human rights: in Australia 156, 158–9, in

a democracy 26–8, 29, 32, 35, 36, 37–8, 46–8, 52, 158–9, 214–15;in Germany 43; and public international law 52–3; in the USA 36; see also European Convention on Human Rights; European Court of Human Rights

Human Rights (Parliamentary Scrutiny) Act 2011 (Australia) 159

ICCPR 52–3India 110–15Indian Supreme Court 111–12International Covenant on Civil and

Political Rights (ICCPR) 52–3international law 51–4, 214international treaties 52–4; see also

European Convention on Human Rights

intolerance see toleranceIslam: and Christianity 199; and

democracy 199–202; and European Court of Human Rights 45, 199–202, 218–19; headscarf ban 176–9, 181, 182–3, 194–8; Sharia law 170, 174, 182, 191, 193, 194, 199; and terrorism 45–6, 211; in Turkey 170, 173–9, 181–2, 191–4

Israel 115–19Issacharoff, Samuel 20, 36, 50, 117Italy 15, 196

Kach party, Israel 116, 117

Index 225

KDP (Communist Party of Germany) 67, 75–9, 216

Kelsen, Hans 17Klass and Others v. Germany 99Knesset Elections Law 1959 (Israel) 115Kommers, Donald P. 75Kovler, Judge 194Kremnitzer, Mordechai 117Kurdish political parties 101, 170, 171

Lautsi v. Italy 196Law on Political Parties 1978 (Spain)

131Law on Political Parties 2002 (Spain)

125, 132–8Leyla Sahin case, Turkey 179, 196–7Locke, John 17, 32Loewenstein, Karl: coins term 1; and

defence of democracy 219–20; and emotionalism 13–14, 34, 207; and fascism 13–14, 27–8, 33–4, 42–3, 48–9, 207; and human rights 27–8, 32, 209, 214–15; justification of militant democracy 32, 38; militant democracy measures 42–3; and transitional democracies 48–9; and the USA 36

Loyalty Decree, Germany 79loyalty tests 44, 78–9, 94–5lustration policies 94–5

majority, paradox of 33, 37, 215militant democracy, concept of:

checklist for 41–3, 46; compatibility with democracy 18; and constitutional theory 16–21, 36–7; contemporary features of 43–8; definition of 13–16, 18–21, 26–38, 208–9, 216–17; and democratic theory 16–21; domicile of 42; dynamic concept 208–9; effectiveness of 30–1, 212–3; and fascism 27–8; features of 14–15; justification of 31–8, 214–16; lack of legal theory 28–9, 35–6, 216–17; legal meaning of 18; misuse of 29–31, 34–5, 211–12; normative framework 35–6; numbers of states 213–14; origins of 1, 13–14, 27–8, 208; pitfalls of

26–31, 209–16; in post-communist states 89–91; practical challenges of 28–30; and public international law 51–4; and state of emergency 47–8; timing of measures 30, 31, 34–5, 212; and tolerance 17–19, 31–3; and transitional constitutionalism 48–51, 209–10; what it protects 208–9

Mill, John Stuart 39n40minorities: intolerant 37; protection of

18, 20, 60n68, 171, 173, 202Moldova 101–2Montesquieu, Charles de 14Muller, Jan-Werner 36Muslims see Islam

National Democratic Party (NDP), Germany 80–1, 213

Navot, Suzie 115, 117Nazi Party 11–12, 65, 68–9negative republicanism 19–20Neiman v. Chairman of the Central

Elections Committee for the Eleventh Knesset (Neiman I) 116

Neiman II judgment 118Netherlands 97–8Niesen, Peter 19–20Nolte, George 17, 52–3

O’Connell, Rory 54Open Society and Its Enemies, The (Karl

Popper) 14OZDEP Party, Turkey 101

paradox of majority 33, 215paradox of tolerance 14, 17, 31–2, 37,

43Parties Law 1992 (Israel) 117People’s Labor Party, Turkey 175Pfersmann, Otto 18–19, 41, 42Plato 1, 11, 14political parties, banning/dissolution of:

in Australia 70–4, 145, 146; and civic society 20; and Council of Europe 102–3; as counter-terrorism measure 54, 117–18, 128–38; and European Convention on Human Rights 95–6; and European Court of Human Rights 54, 91, 95–104, 134–5,

226 Index

political parties continued 190–4, 199–202; in Germany 30–1,

43–4, 50, 66–70, 75–81, 213; in India 110–15; in Israel 115–19; justification of 36–7; and negative republicanism 19–20; in post-communist states 89–95; in Spain 42, 50–1, 54, 103, 125, 128–38; temporary bans 94, 110–15; three paradigms of 19; in transitional democracies 50, 51, 88–92; in Turkey 30, 90, 98–9, 100–2, 171, 172–7, 179–84, 190–4, 211–13

political parties, constitutionalisation of 88–91

political parties, restrictions/limitations on: content of electoral speech 110–15; and European Convention on Human Rights 95–7; in Germany 15, 43–4, 66–70, 75–7; in India 110–15; in Israel 115–19; in new democracies 89–91, 92–4; in post-war Europe 87–9; in post-communist states 89–91, 92–4; registration issues 91, 93–4, 117; regulating activities of 87–104, 171–3; and taking part in elections 115–19; withdrawal of financial support 94

Popper, Karl 14, 32post-communist democracies 89–95,

101–4, 210 Prabhoo, Ramesh Yeshwant 112–13Prabhoo v. Kunte 112–13pre-emptive policy, Australia 150–4preventive detention orders (PDO) 150,

153–4Priban, Jiri 90Progressive List for Peace, Israel 116proscription regime, Australia 154–5public international law 51–4, 214public servants see civil service

questioning warrants 150, 153

racist organisations 54, 116–17Radical Groups Party case, Germany 78Radicals Decree, Germany 78–9Rawls, John 17–18, 32–3Refah Partisi and Others v. Turkey 190–4

Refah Party, Turkey 30, 102, 173–5, 190–4, 199–202, 213

religious groups see Christianity; Islam; secularism

Representation of the People Act (1951), India 111, 112

Republican Party of Russia v. Russia 50rights see human rightsRussia 50, 93–4

Sadurski, Wojciech 90, 92Sahin, Leyla 179, 196–7Saint-Just, Louis de 14, 32Sajó, András 22n24, 33, 34, 41, 45, 49,

90Sala Especial, Spain 133Schmitt, Carl 17, 33Schumpeter, Joseph 17secularism: and European Court of

Human Rights 189–202; in France 197–8; in Turkey 173–84, 190–6, 199–202

Security Legislation Amendment (Terrorism) Bill 2002 (Australia) 154

Sharia law 170, 174, 182, 191, 193, 194, 199

Shiv Sena, India 111, 112–13Smith Act 1940 (USA) 23n42, 74Socialist Party, Israel 115–16Socialist Party of Turkey 100–1Socialist Reich Party (SRP), Germany

67–70, 75Spain: banning of political parties 42,

50–1, 54, 103, 125, 128–38; Basques 126–30, 133–5; Batasuna Party 54, 103, 125, 129, 131, 133, 134–8; Civil War 126; constitution of 41–2, 127–8, 129, 130, 131, 133–4; counter-terrorism measures 128–38; criminal law 130, 131, 133, 138; criticism of militant democracy 135–8; and democratic transition 50–1; ETA 125, 128–9, 130, 131, 133, 134, 135, 137–8; Franco’s regime 126–7; history of political violence 126–8; transition to democracy 127–9

Spanish Civil War 126SRP (Socialist Reich Party), Germany

67–70, 75

Index 227

state of emergency 47–8, 157Sternberger, Dolf 16Supreme Court of India 112–13Supreme Court of Israel 116–17, 118Supreme Court, Spain 133, 134–5, 137Switzerland 195–6

TBKP, Turkey 98–9, 100–2Teitel, Ruti 36, 49terrorism see counter-terrorismThackeray, Bal 111, 112Thomas, Joseph 147–8Thomas v. Mowbray 144, 146, 147–8tolerance: democratic intolerance

17–19, 20; in Germany 11, 43; and justification of militant democracy 32–3, 215; and legal strategies 18–19; and Loewenstein, Karl 13; and minorities 37; and non-legal strategies 18–19; paradox of 14, 17–18, 31–3, 37, 43; and public international law 52–3; and Rawls, John 17–18, 32–3; in Spain 50–1, 55n6, 128; and stable democracies 51

transitional constitutionalism 36, 48–51, 209–10

transitional democracies 16, 36, 48–51, 89–95, 101–4, 209–10

Treaty of the European Union 53–5Tulkens, Judge 197Turkey: banning of political parties 30,

90, 98–9, 100–2, 171, 172–7, 179–84, 190–4, 211–13; and communist party 98–9, 100–2; constitution of 169, 170–2; criticism of militant democracy 179–84; establishment of Republic 169–70;

establishment of secularism 170; and European Court of Human Rights 98–102, 190–4; headscarf ban 176–9, 181, 182–3, 195, 196–7; Islam 176, 181–2, 191–4; militant secularism 169–84; over zealous banning 180; Refah Party 30, 102, 173–5, 190–4, 199–202, 213; regulation of political parties 171–3; spare party system 171

United Communist Part of Turkey 98–9, 100–2

United Communist Party v. Turkey 98United Nations General Assembly

139n13United Nations Security Council

Resolution 1371 154USA: and communism 15, 74–5;

constitution of 14, 27, 36; and human rights 27; and liberal political theory 26; and militant democracy 14, 36, 74–5; Whitney v. California 26

Venice Commission 102–3

war on terror see counter-terrorismwarrants, special 149–50Weimar Republic 1, 11–13, 65–6Whitney v. California 26Williams, Daryl 147

Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 116, 118

Zhechev v. Bulgaria 101

Militant Democracy Undemocratic Political Parties and Beyond by Svetlana Tyulkina

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