Defensive democracy

Last updated

Defensive democracy is a term referring to the collection of laws, delegated legislation, and court rulings which limit certain rights and freedoms in a democratic society in order to protect the existence of the state, its democratic character and institutions, minority rights, or other aspects of the democratic system. The term is related to a conflict that may emerge in a democratic country between compliance with democratic values, particularly freedom of association and the right to be elected, and the goal of preventing anti-democratic groups and persons from abusing these principles.

Contents

In certain democratic states there are additional special distinctions, supported by a notable section of the population, which justify the use of defensive democracy. However, there are disputes on the question of which situations justify the use of defensive democracy without this being considered excessive repression of civil rights.

Methods

The use of defensive democracy can be expressed via several actions applied to a person or group, such as:

As a rule, democratic countries try to not use the methods of defensive democracy too hastily or too severely, and seek alternative courses of action as much as possible, such as public information campaigns and condemnation of anti-democratic activates by respected public figures. However, there are situations where a state might recourse to defensive democratic methods (usually carried out by the court system or other state authorities).

The frequency and extent of use of defensive democratic methods varies from country to country. The United States, for example, is considered a country that uses defensive democratic tactics frequently, especially after the September 11 attacks and the 2021 storming of the United States Capitol, while Italy is considered a country which engages in defensive democratic courses of action sparsely.

Examples

Europe

Ten countries in Europe have outlawed Holocaust denial: France (Loi Gayssot), Belgium (Belgian Holocaust denial law), Switzerland (article 261bis of the Penal Code), Germany (§ 130 (3) of the penal code), Austria (article 3h Verbotsgesetz 1947), Romania, Slovakia, the Czech Republic (§ 405 of the Criminal Code), Lithuania, and Poland (article 55 of the law creating the Institute of National Remembrance 1998).

Germany

In German politics the concept exists under the term wehrhafte or streitbare Demokratie ("well-fortified" or "battlesome democracy") which implies that the federal government ( Bundesregierung ), the parliament ( Bundestag and Bundesrat) and the judiciary are given extensive powers and duties to defend the liberal democratic basic order ("freiheitlich-demokratische Grundordnung") against those who want to abolish it. The idea behind the concept is the notion that even a majority rule of the people cannot be allowed to install a totalitarian or autocratic regime such as with the Enabling Act of 1933, thereby violating the principles of the German constitution, the Basic Law for the Federal Republic of Germany.[ citation needed ]

Several articles of the German constitution allow a range of different measures to "defend the liberal democratic order".

  • Art. 9 allows for social groups to be labelled verfassungsfeindlich ("hostile to the constitution") and to be proscribed by the federal government. Political parties can be labelled enemies to the constitution only by the Bundesverfassungsgericht (Federal Constitutional Court), according to Art. 21 II.
  • According to Art. 18, the Bundesverfassungsgericht can restrict the basic rights of people who fight against the verfassungsgemäße Ordnung (constitutional order). As of 2022, that has never happened in the history of the Federal Republic.
  • The federal and state bureaucracies can exclude people deemed "hostile to the constitution" from the civil service according to Art. 33 ( Berufsverbot ). Every civil servant (Beamter, a very broad class including many in the public sector who would not be considered civil servants in other countries, such as teachers) is sworn to defend the constitution and the constitutional order.
  • According to Art. 20, every German citizen has the right to resistance against anyone who wants to abolish the constitutional order as a last resort.

In addition, Germany maintains a domestic intelligence service, the Verfassungsschutz, whose main purpose is to investigate parties which may violate the constitutional bans on working to end the democratic nature of the state (in particular far-right and Communist parties).

Israel

Israel implemented the principle of defensive democracy, the Basic Law of the Knesset (Section 7A) which determined that "candidate lists would not participate in elections if its goals or actions, expressly or by implication, would deny the existence of the state of Israel as a Jewish state or deny the democratic character of the state of Israel."

Various political science researchers[ who? ] have perceived Israel as a democracy defending itself mainly from social and security constraints with which the state of Israel has been dealing since its creation. During the first three decades of its existence, most Arab countries did not recognize the state of Israel's existence as legitimate. Through the years, concerns have been raised from within the Jewish majority in Israel that the Arab minority within the country, who consider themselves part of the Arab world, would cooperate with the neighboring countries in their struggle against Israel. This situation has often raised the issue of a self-defensive democracy on the agenda in Israel.

During the 1980s, the issue was heavily discussed in a different context – for the first time in Israel's history, an extreme right-wing Jewish party (Kach), who rejected the state's democratic character and the rights of the Arab minority within the country, won representation to the Israeli parliament in the 1984 elections to the Knesset. As a result, in 1985, Israel's Knesset amended a basic law so that parties who engage in incitement to racism would be outlawed. [1] Accordingly, the Supreme Court did not allow the Kach party to run again in the 1988 elections, on the basis that the party advocates racism. [1]

Republic of Korea (South Korea)

Learning from legislation of West Germany, National Assembly of Second Republic inserted Defensive Democracy in their Constitution in 1960. Currently (as of 2022) in the Sixth Republic, it remains in the Constitution (§8(4) — esp. defensive democracy to prevent illegal parties) and has some procedures in other laws. The Constitutional Court of Korea is in charge of deciding if a party is illegal and therefore should be dissolved.

For the first time since the Constitutional Court of Korea was created, in November 2013, the Justice Ministry of Korea petitioned the Constitutional Court to dissolve the Unified Progressive Party, citing its pro-North Korean activities such as the 2013 South Korean sabotage plot. On 19 December 2014, the Court ruled 8-1 that the Unified Progressive Party be dissolved. This ruling was quite controversial in South Korea.[ dubious discuss ]

Republic of China (Taiwan)

Article 5 of the Additional Articles of the Constitution of the Republic of China clearly states that any political party whose purpose or behaviour threatens the existence of the Republic of China or constitutional order of liberal democracy is unconstitutional, and the Constitutional Court can dissolve it.

Chile

Article 8 of the 1980 Constitution originally declared acts and groups promoting violence, totalitarianism or class struggle as unconstitutional, as well as barring those found guilty of such from political and some civic activities for a number of years. As a result of the 1989 referendum, multiple reforms to the Constitution were introduced, repealing Article 8 entirely, but amending Article 19 N°15 to serve much of its function (without a specific mention of class struggle), focusing on guaranteeing political pluralism and safeguarding the constitutional and democratic order.

See also

Related Research Articles

<span class="mw-page-title-main">President of Germany</span> Head of state of Germany

The President of Germany, officially titled the Federal President of the Federal Republic of Germany, is the head of state of Germany.

<span class="mw-page-title-main">Basic Law for the Federal Republic of Germany</span> Constitution for the Federal Republic of Germany

The Basic Law for the Federal Republic of Germany is the constitution of the Federal Republic of Germany.

German Reich was the constitutional name for the German nation state that existed from 18 January 1871 to 5 June 1945. The Reich became understood as deriving its authority and sovereignty entirely from a continuing unitary German Volk, with that authority and sovereignty being exercised at any one time over a unitary German "state territory" with variable boundaries and extent. Although commonly translated as "German Empire", the word Reich here better translates as "realm" or territorial "reach", in that the term does not in itself have monarchical connotations.

<span class="mw-page-title-main">Constitution of East Germany</span> Constitution of the German Democratic Republic

The original Constitution of East Germany was promulgated on 7 October 1949. It was heavily based on the Weimar Constitution and nominally established the GDR as a liberal democratic republic. In 1968, the East German government adopted a new, fully Communist constitution that was based on Marxism–Leninism, political unitarism, and collective leadership. There were further amendments to the 1968 constitution in 1974. With the political events of 1989, there were attempts to draft a new constitution for East Germany, but these efforts never materialized due to the dissolution of East Germany and the accession of its states into the neighboring Federal Republic.

<span class="mw-page-title-main">Constitution of the Czech Republic</span>

The Constitution of the Czech Republic is the supreme law of the Czech Republic. The current constitution was adopted by the Czech National Council on 16 December 1992. It entered into force on 1 January 1993, replacing the 1960 Constitution of Czechoslovakia and the constitutional act No. 143/1968 Col., when Czechoslovakia gave way to the Slovak Republic and the Czech Republic in a peaceful dissolution.

<span class="mw-page-title-main">Constitution of Lithuania</span> Laws of Lithuania since 1992

The Constitution of the Republic of Lithuania defines the legal foundation for all laws passed in the Republic of Lithuania. The first constitution of the contemporary republic was enacted on 1 August 1922. The current constitution was adopted in a referendum on 25 October 1992.

An entrenched clause or entrenchment clause of a constitution is a provision that makes certain amendments either more difficult or impossible to pass. Overriding an entrenched clause may require a supermajority, a referendum, or the consent of the minority party. The term eternity clause is used in a similar manner in the constitutions of Brazil, the Czech Republic, Germany, Greece, India, Iran, Italy, Morocco, Norway, and Turkey, but specifically applies to an entrenched clause that can never be overridden. However, if a constitution provides for a mechanism of its own abolition or replacement, like the German Basic Law does in Article 146, this by necessity provides a "back door" for getting rid of the "eternity clause", too.

<span class="mw-page-title-main">Constitution of Austria</span> Principles, institutions and law of political governance in Austria

The Federal Constitution of Austria is the body of all constitutional law of the Republic of Austria on the federal level. It is split up over many different acts. Its centerpiece is the Federal Constitutional Law (Bundes-Verfassungsgesetz) (B-VG), which includes the most important federal constitutional provisions.

The law of Germany, that being the modern German legal system, is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of Germany, though many of the most important laws, for example most regulations of the civil code were developed prior to the 1949 constitution. It is composed of public law, which regulates the relations between a citizen/person and the state or two bodies of the state, and the private law, (Privatrecht) which regulates the relations between two people or companies. It has been subject to a wide array of influences from Roman law, such as the Justinian Code the Corpus Juris Civilis, and a to a lesser extent the Napoleonic Code.

<span class="mw-page-title-main">Constitutional Court of Korea</span> Highest constitutional court of South Korea

The Constitutional Court of Korea is one of the highest courts—along with the Supreme Court—in South Korea's judiciary that exercises constitutional review, seated in Jongno, Seoul. The South Korean Constitution vests judicial power in courts composed of judges, which establishes the ordinary-court system, but also separates an independent constitutional court and grants it exclusive jurisdiction over matters of constitutionality. Specifically, Chapter VI Article 111(1) of the South Korean Constitution specifies the following cases to be exclusively reviewed by the Constitutional Court:

  1. The constitutionality of a law upon the request of the courts;
  2. Impeachment;
  3. Dissolution of a political party;
  4. Competence disputes between State agencies, between State agencies and local governments, and between local governments; and
  5. Constitutional complaints as prescribed by [the Constitutional Court] Act.
<span class="mw-page-title-main">Supreme court</span> Highest court in a jurisdiction

In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, and highcourt of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of a supreme court are binding on all other courts in a nation and are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts. A supreme court can also, in certain circumstances, act as a court of original jurisdiction.

Fusion of powers is a feature of some parliamentary forms of government where different branches of government are intermingled or fused, typically the executive and legislative branches. It is contrasted with the separation of powers found in presidential, semi-presidential and dualistic parliamentary forms of government, where the membership of the legislative and executive powers cannot overlap. Fusion of powers exists in many, if not a majority of, parliamentary democracies, and does so by design. However, in all modern democratic polities the judiciary does not possess legislative or executive powers.

<span class="mw-page-title-main">Constitution of Latvia</span> Fundamental law of Latvia

The Constitution of Latvia is the fundamental law of the Republic of Latvia. Satversme is the oldest Eastern or Central European constitution still in force and the sixth oldest still-functioning republican basic law in the world. It was adopted, as it states itself in the text, by the people of Latvia, as represented in the Constitutional Assembly of Latvia, on 15 February 1922 and came into force on 7 November 1922. It was heavily influenced by Germany's Weimar Constitution and the Swiss Federal Constitution. The constitution establishes the main bodies of government ; it consists of 116 articles arranged in eight chapters.

Hans Hugo Klein is a German politician. He was a representative of the German Christian Democratic Union from 1983 to 1996 and he a justice of the Federal Constitutional Court.

Basic Law: Israel as the Nation-State of the Jewish People, informally known as the Nation-State Bill or the Nationality Bill, is an Israeli Basic Law that specifies the country's significance to the Jewish people. It was passed by the Knesset—with 62 in favour, 55 against, and two abstentions—on 19 July 2018 and is largely symbolic and declarative in nature. The law outlines a number of roles and responsibilities by which Israel is bound in order to fulfill the purpose of serving as the Jews' nation-state. However, it was met with sharp backlash internationally and has been characterized as racist and undemocratic by some critics. After it was passed, several groups in the Jewish diaspora expressed concern that it was actively violating Israel's self-defined legal status as a "Jewish and democratic state" in exchange for adopting an exclusively Jewish identity. The European Union stated that the Nation-State Bill had complicated the Israeli–Palestinian peace process, while the Arab League, the Palestine Liberation Organization, the Organization of Islamic Cooperation, and the Muslim World League condemned it as a manifestation of apartheid.

<span class="mw-page-title-main">Federal Constitutional Court</span> Supreme constitutional court for the Federal Republic of Germany

The Federal Constitutional Court is the supreme constitutional court for the Federal Republic of Germany, established by the constitution or Basic Law of Germany. Since its inception with the beginning of the post-World War II republic, the court has been located in the city of Karlsruhe, which is also the seat of the Federal Court of Justice.

"Jewish and democratic state" is the Israeli legal definition of the nature and character of the State of Israel. The "Jewish" nature was first defined within the Israeli Declaration of Independence in May 1948. The "democratic" character was first officially added in the amendment to Israel's Basic Law: The Knesset, which was passed in 1985.

<span class="mw-page-title-main">Basic Laws of Israel</span> Fourteen quasi-constitutional laws

The Basic Laws of Israel are fourteen quasi-constitutional laws of the State of Israel, some of which can only be changed by a supermajority vote in the Knesset. Many of these laws are based on the individual liberties that were outlined in the Israeli Declaration of Independence. The Basic Laws deal with the formation and role of the principal institutions of the state, and with the relations between the state's authorities. They also protect the country's civil rights, although some of these rights were earlier protected at common law by the Supreme Court of Israel. The Basic Law: Human Dignity and Liberty enjoys super-legal status, giving the Supreme Court the authority to disqualify any law contradicting it, as well as protection from Emergency Regulations.

The Progressive List for Peace was a left-wing political party in Israel. The party was formed from an alliance of both Arab and Jewish left-wing activists.

The Wunsiedel decision is an order issued by the First Senate of the Federal Constitutional Court of Germany on 4 November 2009.

References

  1. 1 2 Burack, Emily (1 March 2019). "Rabbi Meir Kahane and Israel's far right, explained". Times of Israel.

Literature