Defending Democracy: A New Understanding of the Party-Banning Phenomenon

By Bligh, Gur | Vanderbilt Journal of Transnational Law, November 2013 | Go to article overview

Defending Democracy: A New Understanding of the Party-Banning Phenomenon


Bligh, Gur, Vanderbilt Journal of Transnational Law


B. Expanding the Weimar Paradigm

Perhaps the most common approach for explaining the new banning categories is based on an expansion of the definition of democracy in a more substantive direction, which includes within the term "certain fundamental values beyond free elections." Naturally, an expansion of the scope of democracy also expands the scope of parties that could legitimately be banned as "antidemocratic." This approach seems to reflect the view of the ECHR and several commentators dealing with this matter. (168) The starting point for such an approach can be found in the generic form of restriction clauses in many international covenants, such as Article 22(2) of the International Covenant on Civil and Political Rights (ICCPR) (169) or Article 11(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention). (170) Typically these conventions allow for the restriction of various rights and freedoms, including the freedom of association, for the protection of the rights and freedoms of others or for the protection of a general interest. (171) Notably, these clauses do not limit these restrictions to circumstances that involve a wholesale threat to democracy, although they do require that any such restriction be subjected to a proportionality test deeming them "necessary in a democratic society." (172)

The ECHR applied these principles in its decision concerning the Turkish Refah Party, in which it stated that a party "may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles." (173) The court made it clear that a ban is legitimate if a party "is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy." (174) Thus, for example, in its specific discussion of the Refah Party, the court explained that Refah's proposal for a plurality of legal systems "would undeniably infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy." (175)

This approach allows a broader scope of banning that goes beyond the narrow formulation of the Weimar paradigm and legitimizes the banning of a party that merely opposes "fundamental principles of democracy" even if it does not oppose democracy per se. Courts and commentators have followed the same route and have attempted to link each of the three new banning categories to this broader understanding of democracy to explain why parties falling under these categories could be considered incompatible "with fundamental principles of democracy."

In justifying the banning of parties inciting hate or discrimination, commentators have focused upon the strong commitment of democracy to values of equality, pluralism, and protection of minorities, who are typically the target of hate messages. (176) It has also been argued that the objective of such a ban is to prevent a "climate of fear" and intimidation that could potentially intimidate groups and individuals and drive them out of certain areas of the public and political spheres. (177) In that sense, the banning of parties inciting hate could even be considered as necessary for the expansion of free speech rather than a limitation upon such speech. Its goal is to prevent the depression of political participation and representation of victim groups, typically minority groups, which may result from the propaganda of parties inciting hate. (178)

Similarly, the ban of parties that support violence has been justified through the inherent commitment of democracy to the use of peaceful and nonviolent means. (179) Indeed, the objective of parties is to win with "ballots not bullets." (180) Even the narrowest definitions of democracy (181) acknowledge that a democracy is based upon free competition between political parties that does not involve violence but rather persuasion and peaceful debate. …

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