The Principle of a Defensive Democracy in Action
A Comparative Essay
Germany and Turkey: What Are We Afraid Of?
Pauline. M. Kuss
“No one pretends that democracy is perfect or all wise. Indeed, it has been said that democracy is the worst form of government, except for all others that have been tried from time to time.” (Winston Churchill, 1947)
Democracy is defined as “government by the people”. It grants equality and freedoms to all citizens and the fact that a stable democracy is one of the Copenhagen Criteria required by the EU from possible accession candidates shows the agreement and broad acceptance of democracy as the most just form of government we currently can think of.
Democracy stands out through the freedom and the possibility to actively engage in politics which it grants to all citizens. But this generosity comes with a price: Besides fostering the political dialogue it also gives space and opportunity to extreme and even anti-democratic powers which might misuse their rights granted by the system to actually abolish the same.
Do we have to accept this misuse as a side effect of democratic freedom or should we draw a line somewhere? Do we maybe even have a responsibility to protect our system? The struggle between a solution to effectively protect the democratic system from misusing powers and the danger to actually undermine it ourselves by limiting the personal freedoms and rights which are at the core of it, is centralized in the ongoing debate about the idea of a “defensive democracy”. The question on how much freedom a democracy can bear and how much security it needs is no recent dispute and certainly a perpetual one. But with an eye on the current rise of right-wing parties in many European countries, the importance and pertinence of the discussion becomes clear.
In this paper I want to depict the concept of “defensive democracy” by comparing the examples of Germany and Turkey, both states with existing safety provisions in their constitutions. I will start with outlining the historical background of the current arrangements and a description of relevant cases of the past for each of them. I will furthermore compare the two approaches and finally end with a personal evaluation of the justification of bereaving individuals of their democratic freedoms in order to protect those rights for everyone else.
The concept of a “defensive democracy”
As already outlined above does the discussion concerning the concept of a “defensive democracy” circle around the question if it can be possibly justified to limit individuals’ democratic rights, in order to protect the system from anti-democratic powers, which use these freedoms in their own intent to actually abolish the democratic system. Especially the freedom of speech and the right to assembly are frequently brought forward as arguments against proposed restrictions. And while a prohibition to assembly actually happens comparatively frequently as for example during the 2012 Blockupy movement in Frankfurt when authorities feared that violent outbreaks might occur, the legitimacy to ban a political party outright because of their political program is topic of an ongoing debate. The measure to suspend certain unpleasant opinions reminds more of a dictatorship than a democracy and the legitimacy of the competence vested in constitutional courts to “actively structure the boundaries of the legitimate political domain” which comes with their power to dissolve political parties can be challenged.
And while it is reasonable to raise those concerns, many agree that a democratic system should entail the right if not even the responsibility to protect the fundamental principles it puts forward. In the following I will therefore take a closer look at examples of how this idea is implemented in reality.
Learning From The Past: “Streitbare Demokratie” in Germany
To understand certain provisions the German Republic has implemented in its constitution and to comprehend why they were thought to be important in the first place, it might be a good idea to take a step back in time and reconstruct what went wrong with the infamous predecessor of this document: After the terrors of the First World War the signing of the Weimar Constitution on August 11th, 1919 promised to finally bring stability and parliamentary democracy into the shattered country. But only 14 years later Germany found itself as a dictatorial regime under the control of Adolf Hitler and his National Socialist party.
Explanations for the rise of the nationalistic totalitarian powers are manifold and some might be found within the conditions of the Treaty of Versailles, which left Germany with the burdens of sole responsibility for the war, humiliated and economically devastated. Others might point at the skepticism towards democracy of the German people who were used to the monarchical father figure of their Emperor or the continual disagreements among democratic parties in the newly formed parliament. But it is out of question that some of the key factors, which made Hitler’s rise to power possible in the first place, can be retraced to constructional mistakes of the mentioned German Constitution during this time.
Under the Weimar Constitution the German political order was a mixture of the parliamentary example of the UK and America’s presidential system. There was no option to ban unconstitutional parties and no election threshold which resulted in too many parties in the parliament who were unable to come to agreements. Mistrusting the capacity of this fragmented democratic body to act, and looking for a uniting figure representing the entire German population, great powers were vested with the president. According to the Constitution he could appoint and remove the chancellor dissolve the parliament and proclaim the state of emergency to secure public order and security which amongst others de facto meant to annul the fundamental rights granted by the Constitution and more or less resulted in a state resembling a dictatorship with himself at the top. The document furthermore allowed for the creation of laws which were in conflict with the Constitution as long as they were supported by a two-third majority in parliament. Together with the far-reaching presidential powers with which President Von Hindenburg paved Hitler the way to power, this possibility to easily make fundamental constitutional changes was eventually the basis for the Enabling Act of 1933 which gave Hitler as Chancellor the power to exercise dictatorial powers without any objections from parliament.
There are many things Germany learned from the weaknesses of the Weimar Constitution and explicitly incorporated when drafting the current German Constitution. Today the German President holds a merely representative role and the government is completely accountable to parliament. According to Article 79, a change of the Constitution itself is only possible through an explicit procedure. The Article furthermore introduces the concept of an “Ewigkeitsklausel” (eternity clause) which prohibits any modification to Article 1 (state’s duty to protect the dignity of men) and Article 20 (describing Germany as a democracy where the power rests within the people and all state authorities are bound to the rule of law) at all. An amendment to Article 20 in 1968 added the right of all Germans to actively oppose anyone who tries to abolish the aforementioned provisions. Furthermore Constitutional Court was invested with the power to ban political parties or organizations based on anti-democratic or unconstitutional activities, if one of the parliamentary chambers or the government submits an initiative to do so. Theoretically the court could even deny individuals their fundamental rights like freedom of speech, freedom of the press or the right to assembly if those should be used to fight the liberal democratic constitution itself – historically this was demanded four times but has always been denied since this measure constitutes such an enormous infringement of an individual’s rights and the core of the democratic system.
All these provisions make clear that Germany, looking back on its disastrous past, has firmly established the principle of a “defensive democracy” in several articles of its constitution to control ant-democratic powers and prohibit opponents of the constitution to misuse the system with the intent to take it apart.
The Ongoing Debate Around the NPD
The mechanism to actually ban a political party was used twice so far in German history: 1952 the Sozialistische Reichspartei which the judges saw as a descendant of Hitler’s NSDAP and 1956 the Kommunistische Partei Deutschland which was adjudged to be unconstitutional. In recent years it is subject of heated debate if the Nationaldemokratische Partei Deutschlands (NPD) should be outlawed as well. Arguing that the NPD glorifies the Third Reich, badgers foreigners and claims to overcome the democratic and pluralistic system of Germany – if necessary by the use of force – a first attempt to ban the party was made. But failed in 2003. In 2013 the Bundesrat initiated a second investigation based on Article 21 of the German Constitution, referring to a report of the Munich Institut für Zeitgeschichte, which assessed the party’s program as largely identical with the one of the NSDAP. The case is being currently revalued by the Constitutional Court but many skeptics raise the concern that even if a ban should pass this first hurdle, the party might succeed in challenging the judgment at the EU Court for Human Rights. In a former case concerning the prohibition of a Turkish party in 2003 the Court had established intentionally high standards which have to be met in order to justify such a dramatic verdict.
Turkey: The military as the guard of the Constitution
After 623 years of Ottoman rule, the Sultanate, an Islamic state with laws based on the Sharia, was abolished in 1923 and the Republic of Turkey officially recognized in the same year. With the aim of quickly modernizing the state and attaining “Western modernity” the first President of Turkey, Mustafa Kemal Atatürk, introduced various reforms geared towards a change in the political and legal regime and the establishment of a new national order with a strict separation of state and religion.
After increasing negligence on some of the strict rules concerning the expulsion of religion out of the public sphere and the initiation of martial law by the government in 1960 in order to control growing tensions and resentments in the opposition, Turkey saw its first military intervention the same year. The upheaval brought about not only a new constitution but also the Constitutional Court founded in 1961. A year later in 1962 the military institution of the National Security Council (NSC) was established, with the initial purpose to serve as an advisory body. But after two more military interventions in 1971 and 1980 and a newly introduced Constitution in 1982, the NSC had grown to a rather powerful institution watching over the actions of the government and parliament. The military as a substantial actor in political processes in Turkey had been accepted henceforward, and the NSC was understood as the guardian of Turkish democracy and its secular order.
Influenced by the country’s past, the Turkish Constitution makes an effort to continuously emphasize a clear separation of religion and state affairs. Already in Article 2 the notion of a democratic and secular state is mentioned. Amendments to this provision or Article 1 which labels Turkey as a republic are strongly forbidden under Article 4. As in Germany we can thus find the idea of an eternity clause in the Turkish constitution which prohibits any alteration of those “irrevocable provisions” reflecting the most fundamental characteristics of the state. Also similar to the German Constitution sounds Article 14 which interdicts the use of rights or freedoms of the Constitution in order to besides others “jeopardize the existence of the Turkish Republic”, discriminate on the basis of religion or set up a political system based on such concepts. The fact that this prohibition to base the political system in any way on religious tenets is once more explicitly stated in Article 24 shows the major importance a secular societal order holds in the Republic of Turkey. To safeguard the principles of the democratic secular republic even more, no constitutions, rule books or activities of political parties shall be incompatible with these objectives. The Constitutional Court holds the power to dissolve any party which should violate this provision with its activities or is found to be “a center of such activities”.
The Refah Party: A Case Challenging European Values
Founded in 1983 as the heir of two Islamist political parties which were formerly banned on the grounds of violating the secularist arrangements of the Constitution, the Turkish Welfare Party Refah Partisi became the largest party under Prime Minister Necmettin Erbakan in 1996. But already one year later the coalition government was forced out of power by the military which claimed that it advances an Islamist agenda which clearly violated the constitutional principles of secularism. In 1998 Refah was officially banned by the Constitutional Court which affirmed a violation of the provisions concerning a strict separation of religion and state as mandated by the Constitution.
Claiming their rights of freedom of religion (Art.9), freedom of expression (Art.10) and freedom of assembly (Art.11) under the EU Convention on Human Rights, the Refah Party challenged the verdict before the European Court of Human Rights which upheld the decision of the National Court in 2003. Although it emphasized that a political party can’t be banned solely on its program, it found that acts and speeches of leaders of the party explicitly showed the aim to set up a state based on Sharia and the willingness to use force if that would be necessary to implement their policy. The European Court therefore supported the view that the party’s plans were incompatible with the principles of a democratic society and furthermore emphasized the fact that, being the leading party, Refah actually had a real opportunity to put them into practice. Based on this immediate threat the Court justified the preventive intervention and the penalty imposed by the Turkish judges. With its ruling the EU Court established the criteria of an existing “pressing social need” as a threshold to justify an interference with the fundamental rights which were brought forward as a defense by the party. According to the EU Court such a “pressing social need” originates in the combination of party ideals that are incompatible with democracy and the actual possibility to put them into practice.
Comparing The Defensive Democracies of Germany and Turkey
As I already pointed out above: Both countries implemented safeguards for their democratic system in their Constitutions. Both Countries use an eternity clause to protect certain fundamental rights and the principles of democracy. Furthermore entail both Constitutions restrictions on the ideals a party might represent and a mechanism including a Constitutional Court to suspend those who violate those regulations.
But looking once more at the two cases I presented above, a couple of differences become obvious. First of all there would be the role of the military which has no constitutional competences to check on political processes in Germany, while it operates as the main guardian of constitutional principles and in particular the concept of secularism in Turkey. Another distinctive aspect is the importance of exactly this concept which is repeatedly brought forward as a reason for party bans in Turkey (of which there have been many), while it never has been raised in a discussion in Germany. Looking at the provisions concerning separating state and church it becomes clear that the importance of this principle is much more emphasized in the Turkish system, which grants great powers to the military to protect this principle of secularism, while Germany takes a comparatively loose stance in this matter and instead focuses on the balance of powers and other elements preventing the threat of vesting too much competences within one person which could potentially try to misuse it.
A Personal Note at the End
I did start my investigations for this paper with the question if safety provisions to protect the principles of our democratic systems could be justified, even though taking those remedies might mean to seriously infringe individual’s freedoms. To end with a personal evaluation of this matter I would say yes. Yes, in my eyes there might be cases where the danger for the stability of our system is so imminent, that taking preventive steps to avoid greater and maybe even long-lasting damage can be justified. The social, political and judicial terrains are highly interactive and we should keep in mind that hesitating to restrict obviously destructive voices and despisements of our democratic ideals in one of the fields, because we fear this could be seen as an betrayal of our values altogether, does entail the risk that those dynamics might spread into the other fields as well. But while I support the EU judgment in the Refah case, I do not see the inevitable need to prohibit the German NPD. Of course do the ideas they express highly violate the principles Germany stands for and it is crucial that the rest of German society and especially the political authorities emphasize our democratic core values by explicitly distancing themselves from the NPD ’s propaganda. But considering their minor political influence I personally do not see them as a serious threat to our system. I personally actually have the feeling that instead of gaining support they are loosing popularity every time they step into the public and I’d rather see them accepted as an unpleasant side effect of the freedoms we promote in our society, than expulsing them into the underground where they might flourish in unmonitored and uncontrolled ways. But if a party which destructive ideas has the actual chance to take steps towards the abolishment of our political system, why should we be condemned to risk the strength of our democracy by stubbornly trying to please the rights of those who are openly denying just these? True pluralism as a core principle of a democratic society has to assure space for everyone and does not need to grand a shelter to those who deny that space to their opponents. Or to put it into the words of the European Court of Human Rights:
“Pluralism and democracy are based on a compromise that requires various concessions by individuals or group of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole.”
But comparing the mechanisms the two countries of Germany and Turkey provide to legally infringe fundamental rights of individuals in order to protect their own constitutional orders, brought me an additional interesting insight. From the comparison above and especially the study of past cases, the importance to consider a countries historical background to fully understand the provisions of its legal system and the critical topics of its society, becomes obvious. It is clear that in both Constitutions the principle of a “defensive democracy” was consciously implemented with a view on the country’s experiences of the past. While the misuse of competences and the bypassing of the parliament lead to a totalitarian regime with fatal consequences in Germany, the new ruling class in Turkey wanted to make sure to expel the religious powers from which they just had liberated themselves, from the public stage as consequently as possible.
Realizing this raises the question if safety mechanisms placed by democracies in their constitutions might be more than pure means to defend their democratic values: They might also be an expression of coping with the past. We Germans can’t reverse the horrors of our nation’s history but we can show that we are taking our responsibility seriously and do our best to prevent anything similar from happening again.
The awareness that many national laws and customs should be evaluated with an eye on the country’s historical context might actually be an issue that becomes increasingly interesting considering the progressive expansion of the influence of European laws into the national spheres. With European laws and their interpretation being detached from the national backgrounds and historical motives of its member states, one could argue that European Courts should keep this in mind when delivering a judgment. But one may also see it as a chance. A chance to overcome the darker spots in the past of individual countries to move towards the future as a Union which upholds the fundamental freedoms and principles of a democratic system and does not hesitate to step-in and defend them when they are obviously at stake.
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