Militant Democracy: Undemocratic Political Parties and Beyond

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By Muhammad Nawaz Khan  : –

The book Militant Democracy: Undemocratic Political Parties and Beyond by Svetlana Tysulkina offers a broad comparative look at the legal concept of militant democracy. It analyses both theoretical and substantive aspects of this concept, covering diverse array of issues, and, investigating its practice in a number of countries. Examining cases in Australia, Turkey, Spain, Germany, Israel, India, the USA, and the Council of Europe, the author maps the historical development of militant democracy in constitutional theory and explores its interaction with various traditional and contemporary notions of democracy. Further, the volume describes the possibilities and drawbacks of the concept of protecting democracy when it is under threat of harm or destruction by undemocratic actors, and suggests possible solutions and measures to overcome those dangers.

The book is organized into four parts. Part 1 provides the overall context by introducing the concept of militant democracy, its historical evolution, reasons surrounding the introduction of the idea of constitutional militancy, and tragic experience of the Weimar Republic. It explains the term militant democracy, which adds to the quality of democracy. This concept 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. Thus, 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. Furthermore, the work engages with the 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, constitutional patriotism, and democratic tolerance.

The work also warns that while the concept of militant democracy might be attractive in the business of protecting democracies but its application requires careful consideration. There are many questions, 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 undemocratic regimes, and to intrude substantively on the most fundamental political rights and freedoms. Therefore, the author examines the major theoretical and practical concerns that the concept of militant democracy might pose. His 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 and practices to limit fundamental rights for protecting democracy. Overall, the book centres on the view that despite challenges and concerns which 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 institutionally – the abuse of mechanisms it creates for restricting the fundamental rights.
Part II considers the practical application of militant democracy measures in relation to political parties. The cases like German Socialist Reich Party and the Australian Communist Party represent examples of careful application and interpretation of militant democracy, which was utilized to address the perceived danger of the communist parties. Judicial decisions of both examples were the first opportunities to test Loewenstein’s arguments in practice, and the work considers them to be successful applications of militant democracy to guard constitutionalism in times of crisis. In addition, the book is devoted to practices directed at the suspension 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 aggressive and controversial. For instance, the restrictions on electoral speech of political parties as practiced in India and the disqualification of the same in Israel are less drastic than complete bans on party activities.

Part III establishes the relevance of militant democracy measures in the context of counterterrorism policies. It looks at the case of Spain, where a law to ban political parties was introduced in 2002 as a response to the ongoing presence of political terrorism and violence. This law was applied for the first time to ban the Basque separatist political party, Batasuna, for having links with, and supporting the terrorist group Euskadi Ta Askatasuna. Therefore, Spain represents an example of a traditional militant democracy measure, which was applied as part of a counterterrorism strategy. In other words, this case study demonstrates that a traditional concern of militant democracy – that is, banning undemocratic political parties – is being given a new focus in case of terrorism threat.

Subsequently, the work develops this observation further and examines the case of Australia and its democratic militancy in relation to counterterrorism. At first glance, the Australian Constitution does not contain any explicit provisions on democratic 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. The author first establishes a case to treat Australia as a state with some form of democratic militancy. In this regard, he argues that militant democracy has become an undeclared guide to Australia’s counterterrorism 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 terrorist activities. 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 threats including the terrorism.
Part IV discusses utilization of militant measures to neutralise movements that allegedly use democratic means to establish totalitarian ideology for example, fundamentalist and coercive religions. In this context, the volume looks at the application of militant democracy in Turkey to guard the constitutional principle of secularism. The 1982 Constitution of Turkey endorses democratic militancy and the country has considerable experience with the prohibition of political parties including to justify a ban on the display of religious symbols in public such as wearing headscarves. Many religious 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.

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 that militant democracy measures might be abused or misused for political purposes, especially in democracies that are not yet stable. Therefore, strong justification 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 Writer works for IPRI

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