Defending democracy: a new understanding of the party-banning phenomenon.

• Author: Bligh, Gur
• Position: IV. Accommodating the New Categories Within the Weimar Paradigm B. Expanding the Weimar Paradigm through VI. Applying the Legitimacy Paradigm, with footnotes, p. 1349-1379

2. 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. (182) Thus, parties supporting violence can be characterized as antidemocratic even if they do not nominally oppose democracy as a form of government. (183)

   It appears that limitations aimed at parties that challenge elements of the state's identity are the most difficult to justify from a democratic perspective. They appear to be the farthest away from the narrow definition of democracy, and, thus, they are the most restrictive and far-reaching in their impact. However, they too have been justified on the basis of their link to fundamental democratic values. (184) For instance, in its decision upholding the ban of the Refah Party, the ECHR held that the principle of secularism in Turkey is a necessary component of its democratic nature. (185) Similarly, the Israeli provision allowing for the ban of parties negating the Jewish nature of the state has been tentatively linked to the protection of the collective right of the Jews for self-determination, although only in situations in which the party in question categorically denies the right of the Jewish people to self-determination. (186)

   This expansion of the Weimar paradigm is problematic on several levels, some of which will be discussed later on. Here, the focus will be on its main difficulty--its failure to supply a sufficient and coherent account as to the purpose of the banning and the dangers that the banning is supposed to address. In this respect, it is worth reiterating that the banning of a political party is an exception to the foundational democratic principles of state-neutrality, freedom of association, and equal participation. (187) In order to justify a ban, it is reasonable to require proof that such an action is narrowly tailored to achieving a necessary democratic purpose. When a democracy is dealing with parties that are overtly antidemocratic, the Weimar paradigm makes a lot of sense. The fear is that these parties will come to power and put an end to free elections. However, when dealing with parties that do not seek to put an end to free elections but merely reject a central aspect of democracy, such as pluralism, this underlying purpose does not appear relevant. So what is the purpose of the banning in these circumstances? What threat is it supposed to address?

   The importance of resolving this question can be demonstrated through the debate concerning the justifiability of the banning of Batasuna (and two of its predecessor parties) in Spain. Most commentators had rightfully predicted that the ECHR would uphold the banning of Batasuna, basing this conclusion on the court's position in the Refah case in which the court stated that a party "whose leaders incite to violence" (188) could legitimately be banned. (189) Others, like Ian Cram, have claimed that this ban will not, and should not, be upheld because of the "negligible prospect of Batasuna holding political power in the Basque country" (190) and because Batasuna does not "put in jeopardy the stability of democratic institutions in the Basque country or elsewhere in Spain." (191)

   This difference of opinion does not merely represent a difference in the "militancy" of the various commentators. In fact, it also reflects the ambiguity and murkiness that arise when the Weimar paradigm is applied to the new categories of banning, such as support for violence. While the supporters of the ban seemed correct in their assessment that the ECHR regards incitement to violence as a legitimate banning ground, their opponents appeared correct in arguing that under the Weimar paradigm the probability that a party will come to power and destabilize the regime is a highly relevant factor. (192)

   In its opinion affirming the banning of Batasuna, the ECHR did not resolve this tension. (193) While the court cited the Refah case for the proposition that a banning is justified only when the danger that the party will implement its antidemocratic agenda is "sufficiently established and imminent," (194) it did not actually apply this requirement to Batasuna. Instead, it simply focused on the expressions of support for violence made by party officials and the links between Batasuna and ET/L concluding that these factors, on their own, justified the ban. (195) Thus, the question remains whether this factor--the probability that the party will win an election--is relevant when one is dealing with a party that is banned for support of terrorism rather than for its overt antidemocratic ideology. Also, if it is not relevant, What is the purpose of the ban?

   One possible answer could be that although the banning is not aimed at preventing a party from coming to power and abolishing democracy as a whole, it is aimed at preventing the party from coming to power and implementing its antiliberal agenda. (196) However, this explanation seems insufficient on several levels.

   As a descriptive matter, most of the parties that have recently been subjected to these new categories of banning do not stand a realistic chance of winning an election. Therefore, there is no imminent threat that they will come into power and implement their agenda. For example, before Batasuna was banned in Spain, it enjoyed a steady support of merely 10-20 percent of Basque voters. (197) In fact, in the 2001 elections preceding the banning decision, Batasuna suffered a significant blow, winning only seven of seventy-five seats in the regional Parliament, compared to fourteen in the previous elections. (198) Similarly, Kach in Israel, had won only one of 120 seats in the Knesset in the 1984 elections. (199) Although polls prior to its banning in 1988 indicated that it would have won five to six Knesset seats, (200) it is clear that Kach was still very far from achieving a prominent position in the Knesset. A similar case could be made for the German NPD Party...