Defensive democracy

Defensive democracyis a term referring to the collection oflaws,delegated legislation,andcourt rulingswhich limit certain rights and freedoms in ademocratic societyin 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, particularlyfreedom of associationand theright to be elected,and the goal of preventing anti-democratic groups and persons from abusing these principles.

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:

• Surveillance by the security corps (especially military and police intelligence) of activists who are considered dangerous, or after entire associations outright;
• Restrictions on the freedom of movement or action over bodies suspected of endangering democracy;
• Deprival of the rights of individuals and parties from running for election (such asMeir Kahane,and subsequently theKach partywhich he led, in Israel);
• Outlawing of organizations considered a danger to democracy (such as theCommunist Party in West Germany)

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. TheUnited States,for example, is considered a country that uses defensive democratic tactics frequently, especially after theSeptember 11 attacksand the2021 storming of the United States Capitol,whileItalyis considered a country which engages in defensive democratic courses of action sparsely.

Examples

Europe

Ten countries in Europe have outlawedHolocaust 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 3hVerbotsgesetz 1947),Romania,Slovakia,theCzech Republic(§ 405 of the Criminal Code),Lithuania,andPoland(article 55 of the law creating theInstitute of National Remembrance1998).

Germany

InGerman politicsthe concept exists under the termwehrhafteorstreitbare Demokratie( "well-fortified" or "battlesome democracy" ) which implies that the federal government (Bundesregierung), the parliament (BundestagandBundesrat) and the judiciary are given extensive powers and duties to defend theliberal democratic basic order( "freiheitlich-demokratische Grundordnung" ) against those who want to abolish it. The idea behind the concept is the notion that even amajority ruleof the people cannot be allowed to install atotalitarianorautocraticregime such as with theEnabling Act of 1933,thereby violating the principles of the German constitution, theBasic Law for the Federal Republic of Germany.

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 labelledverfassungsfeindlich( "hostile to the constitution" ) and to be proscribed by the federal government. Political parties can be labelled enemies to the constitution only by theBundesverfassungsgericht(Federal Constitutional Court), according to Art. 21 II.
• According to Art. 18, theBundesverfassungsgerichtcan restrict thebasic rightsof people who fight against theverfassungsgemäße 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 theright to resistanceagainst anyone who wants to abolish the constitutional order as a last resort.

In addition, Germany maintains a domestic intelligence service, theVerfassungsschutz,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, theBasic 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."

Variouspolitical scienceresearchershave 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 notrecognize the state of Israel's existence as legitimate.Through the years, concerns have been raised from within theJewish majority in Israelthat theArab minority within the country,who consider themselves part of theArab world,would cooperate with the neighboring countries in theirstruggle 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 theIsraeli parliamentin the1984 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.Accordingly, the Supreme Court did not allow the Kach party to run again in the1988 elections,on the basis that the party advocatesracism.

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. TheConstitutional Court of Koreais 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 theUnified Progressive Party,citing its pro-North Korean activities such as the2013 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.

Republic of China (Taiwan)

Article 5 of theAdditional Articlesof theConstitution of the Republic of Chinaclearly states that any political party whose purpose or behaviour threatens the existence of the Republic of China or constitutional order ofliberal democracyis unconstitutional, and theConstitutional Courtcan dissolve it.

Chile

Article 8 of the1980 Constitutionoriginally declared acts and groups promoting violence, totalitarianism orclass struggleas 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 the1989 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.

Poland

Poland’s Prime Minister Donald Tusk as of 11th September 2024, has announced that he intends to lead his country in a way necessary to implement the necessary changes even if means not allowing for the observance of the Rule of Law.

See also

• Communist Party of Germany v. the Federal Republic of Germany
• Eternity clause in Germany
• National security
• Paradox of tolerance
• Socialist Reich Party

Literature

• Andras Sajo.From militant democracy to the preventive state?Constitutional Law Review No. 1
• Rory O'ConnellMilitant Democracy and Human Rights PrinciplesConstitutional Law Review No. 1