Courts abroad treat democracy and democratic as terms with real meaning that courts can and should enforce, in sharp contrast to the Roberts Court, for which democracy is largely an excuse for inaction, but not of rights or requirements.1
International developments, influenced by the United States after World War II, came together in an understanding of democratic majorities as “fluid,” with citizens moving in and out of the majority. For that to be possible, they must “at all times enjoy a core of political rights that ensures effective participation.”2 Instead of understanding elections and democratic procedures as ends in themselves, judges have understood them as a way to ensure that the people can elect their leaders. As developed in the courts of many nations, popular sovereignty requires that all adults can actually vote. To protect the political freedom on which democracy depends, and also because human rights and welfare are central to the moral claim of democracy, they understand democracy to require economic justice, civil liberties, and protections in the criminal process. And they demand more than the Roberts Court does.
Foreign examples are not new to American law.3 But they became a flashpoint in cases holding that the death penalty could not be applied to juveniles, the mentally retarded, or those guilty of serious crimes but not murder,4 and cases protecting the private, consensual relations of gays and lesbians.5 Justice Thomas shot back “this Court . . . should not impose foreign moods, fads, or fashions on Americans.”6 In 2003, Justice Scalia added, “constitutional entitlements do not spring into existence because . . . foreign nations decriminalize conduct.”7 Two years later, he made plain his objection to “the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years.”8 The Court should not have taken “guidance from the views of foreign courts and legislatures.”9 This battle continues on the Roberts Court.10
One might respond that other versions of originalism are more receptive to foreign law,11 and closer to the understanding of the founders,12 or that neither Scalia nor Thomas are consistently faithful to eighteenth century behavior. More important, however, the purpose here is not to copy but to learn from foreign courts. Americans will want to know what might happen if, in fact, the U.S. Supreme Court took the concept of democracy as seriously as it takes the concepts of the separation and division of powers. And we want to explore the logic of taking democracy seriously, to uncover what democracy can mean and has meant to others.
Decisions by foreign courts are not binding precedent in the United States. American judges adopt or reject what they do based on their understanding of American law. However, American state courts and the high courts of many countries look to treatment of similar issues in the sister courts of other states or countries, including the United States. In exploring, we consider the possibilities. This is particularly appropriate at a time when many countries and courts are, for better or worse, learning from each other.13
In this chapter we explore what courts have said about what makes democracy work properly and what helps it survive. In subsequent chapters we will explore what political scientists have added to our understanding of the requisites of democracy.
In the following pages, we do this without assuming that principles adopted elsewhere can or should be adopted here. Foreign courts are more limited than the U.S. Supreme Court. All other national constitutional courts are much younger. The European Court of Human Rights (ECtHR), founded in 1959, applies rules to governments that are in fact sovereign. ECtHR member countries can withdraw from treaties, conventions, and international institutions. They each possess formidable and independent armed forces. The ECtHR cannot count on supranational leaders to enforce decisions the way U.S. presidents have sometimes enforced judicial judgments. Finally, the legitimacy of the Court, the general sense of obligation to obey, that characterizes American attitudes toward the Supreme Court, is lacking for many other courts with constitutional or international authority. Generally, therefore, they have less power to work their will than the U.S. Supreme Court does.
Many legal issues are not strictly comparable either. Voter equality raises very different issues in proportional systems than in our geographic system, with problems of districting, apportionment, and gerrymandering. Issues like voter registration, that bedevil U.S. elections, are resolved in many other countries by mandatory registration and voting, although the United Kingdom may be moving toward more exacting forms of voter identification, similar to some U.S. jurisdictions.14
These differences are mitigated somewhat because the focus in this book is on the proper standard rather than actual behavior. No nation implements democracy perfectly. Each makes idiosyncratic choices about its representative system that make comparisons difficult. Although examples will clarify some points, we will focus in this book on what democracy means instead of the precise arrangements or compromises each country has made.
Language in some national constitutions explicitly makes democracy a criterion of legality. I looked for interpretations of democracy in those constitutions. The U.S. constitution has no such language. Whether the meaning of democracy is relevant to constitutional law in the United States depends on whether the Constitution implies a democratic principle much the way the courts have concluded it implies federal and separation of powers principles. Those issues will be discussed in the concluding chapter. This chapter does not trace or examine the strength of inferences judges have drawn from their own constitutions, but focuses instead on judges’ understanding of the explicit requirement of democracy in their constitutions.
On the heels of Nazi dictatorship, and bordered by two Iron Curtain countries, West Germans felt their democracy threatened by totalitarians both internally and on its eastern border. Membership in the European Union pulled West Germany and then the unified country toward more open and inclusive democracy.15
The German Constitutional Court promptly made democracy fundamental to law in 1951, concluding that even constitutional language must be consistent with fundamental principles of democracy and human rights; some “constitutional principles that are so fundamental . . . [have] precedence even over the Constitution.” The Court added, “it follows that any constitutional provision must be interpreted . . . [so] that it is compatible with those elementary principles” as well as “the basic decision of the framers of the Constitution.”16
The German Constitutional Court looks at cause and effect to protect democracy, quoting Cardozo’s Palko opinion in English, that freedom of opinion is “the matrix, the indispensible condition of every other form of freedom” and “basic to a liberal-democratic constitutional order.”17 The Court nevertheless limits free speech to protect privacy.18
Part of the German response to the threat of totalitarianism was defensive.19 Following Article 21, the Court found it “simply inconceivable that the Constitution . . . in the wake of the bitter experience of Weimar’s democracy . . . should also permit the surrender of this state to its enemies.”20 The unapologetically Nazi Socialist Reich Party was dissolved.21 The Communist Party’s relationship to Warsaw Pact forces across the West German border also threatened German democracy, and it too was dissolved.22 But Germany’s commitment to “militant” democracy can be double-edged.23 The power to dissolve political parties has been abused in many countries regardless of expressed intent.
The Court defines democracy based on popular sovereignty: “all public authority emanates from the people” who exercises authority “by means of elections and voting.”24 The constitutional designation of Germany as a democratic state means parliamentary control of government and that the right to vote of all German citizens is critical.25 Democracy, the Court explained, is a fluid “process that requires constant renewal and in which all citizens of voting age share equally.”26
Citizenship and voter eligibility, however, had been restricted to those with German blood. Foreign guest workers were excluded from citizenship because of their ancestry, and therefore left without a vote. The Court found that allowing foreign nationals living in Germany to vote in local elections conflicted with the right of German citizens to self-government.27 That has been changed because EU law now requires some birthright citizenship and German law has been amended to conform.28
Proportional representation in the legislature is designed to include Germans of all persuasions. “The proper standard . . . [for] parliamentary organization and procedure . . . is the principle of universal participation.”29 However, to encourage coalition and make government manageable, it does not seat small splinter parties. These opposite purposes clashed after unification of the former East and West Germany. In Re-Election Processes in Unified Germany,30 the Court wrote: “Democracy cannot function—as a matter of principle—if the parties are unable to enter an election campaign under the same legal circumstances.” The East German party primarily responsible for unification expected but failed to win the 5 percent of the electorate required for representation in the new unified country. The Court recognized that it had less opportunity to develop in a democratic political process and permitted a one-time reduction of the percent required for representation from the former East Germany.31
Nevertheless, minor parties are crucial for competition and for equal citizen participation. So their role in the legislature is protected:32 “[P]arliamentary opposition . . . [is] in the interest of the democratic state.”33
Historic American concern with a republican distribution of wealth is incorporated in the notion that Germany is a “republican, democratic, and social state” and in German constitutional law, which makes public economic welfare a significant consideration and provides some protection for economic welfare.34
Germany is less focused than the United States on using the schools to build unity among students of all ranks, races, and faiths. Students are permitted to take religious classes in interdenominational state schools, or to go to religiously based schools supported by the government.35 Local authorities, however, tried to exclude a teacher from a state school because she wore an Islamic headscarf, claiming it conflicted with her obligation of religious neutrality toward her students. The Court overruled her ouster but decided she could be excluded if her action “conflicted with purposes of constitutional legal protection, and if this restriction of her free exercise of religion were based on a sufficiently definite statutory foundation.”36 The Court’s examples suggested the law could easily be rewritten to exclude Muslim women who wore the Islamic headscarf.37 Two-thirds of German states banned headscarves categorically after the decision and the prospective teacher eventually gave up her fight, saddled as she was with substantial legal expenses.38
The founders of the United States thought many procedural rights were necessary to protect democracy from abuse of the criminal law for partisan or other improper purposes. Procedural protections of that type are based in Germany on the generic concept of the rule of law.39
German federalism differs radically from U.S. federalism. Germany has not created a federal bureaucracy in most areas, so that national legislation is implemented by the states unless the federal government is better able to address the problem.40 But federal law sets boundaries. States as “member[s] . . . of a federation [are] not autonomous and independent.” Instead they are “part of a federal order which restricts [their] sovereign power in various respects.” The Court found that the government could even abolish a state as part of a reorganization plan.41
Internally, the German states are required to “conform to the principles of a republican, democratic, and social state.” County and municipal governments must be “chosen in general, direct, free, equal, and secret elections.”42 And mimicking the guarantee clause of the U.S. Constitution, the German Basic Law requires the federation to protect those principles.
The German Constitutional Court decided that, unlike U.S. constitutional law, the Basic Law creates values to which law relating to private disputes must conform. In much of the free world, this is known as the direct horizontal effect of the constitution.43 In the United States, the doctrine of state action generally eliminates private responsibility to conform to constitutional standards or requirements, sometimes protecting private interference with political efforts against federal action.44 The German approach expands democratic obligations.
Germany thus pioneered in using the concept of democracy as a tool of interpretation, both in constitutional language and judicial decision. It would prove both influential and controversial.
Indian democracy faced different problems. Although British response was often quite violent, the nonviolent revolution led by Mahatma Gandhi spared India the militarization that leaves democracy under the heel of strongmen. The unity of India’s leaders at independence and their confidence in each other led to a constitution that placed few restrictions on the new government and left its courts with few tools to keep India on a democratic course. But it would nevertheless develop a strong view of the requirements of democracy.
From the date of independence, segregation was facilitated, though not required by Indian law, leading to India’s own bath of fire. The British Parliament’s Indian Independence Act of July 1947 partitioned the territory into India and Pakistan. Partition led to the flight of ten to twelve million people crossing the new border in both directions, largely becoming homeless. Partition and migration led to riots and mass killings and many more died fleeing for safety. A Hindu nationalist who thought Gandhi was favoring Muslims over Hindus assassinated him shortly after partition. Estimates vary but probably a million people lost their lives within months of partition. Nevertheless, many stayed and India’s Muslim population remains one of the world’s largest.
Tribal and caste conflict are other sources of communal violence.45 Politicians, aided by criminal gangs, have initiated violence to foment communal rage so that people would vote for them at elections.46 Trains, villages, shrines, mosques, and temples have been attacked and violence has often leapt out of control. Results have been tragic. The Supreme Court of India quoted Jonathan Swift in 1994, “We have just enough religion to make us hate, but not enough to make us love one another.” Referring to demolition of a mosque, the Court wrote: “What was demolished was not merely an ancient structure; but the faith of the minorities in the sense of justice and fair play of majority.” Casualties included “faith in the rule of law and constitutional processes.”47
Secularism, Justice Verma wrote for the Court, “treats all religions alike and displays a benevolent neutrality towards them”; but it also “should connote the eradication of all attitudes and practices derived from or connected with religion which impede our development and retard our growth into an integrated nation.” This was crucial “to the stabilisation of our democratic State and the establishment of a true and cohesive Indian nationhood.”48 Justice Verma continued: “In a pluralist, secular polity law is perhaps the greatest integrating force.” Justice Verma’s majority opinion described a “cultivated respect for law and its institutions and symbols; a pride in the country’s heritage and achievements; faith that people live under the protection of an adequate legal system” as “indispensable for sustaining unity in pluralist diversity.” With Harvard’s John Rawls’s recent work in mind, Verma wrote: “Rawlsian pragmatism of ‘justice as fairness’ to serve as an ‘overlapping consensus’ and deep-seated agreements on fundamental questions of basic structure of society for deeper social unity” described a “political conception of justice” necessary for a pluralist society.49 “Law should not accentuate the depth of the cleavage and become in itself a source of aggravation of the very condition it intends to remedy.”50
In that strife-riven environment, the justices valued education for democracy. Although the Preamble declares that India will be a “secular republic” and Article 28 bars “religious instruction in any educational institution wholly maintained out of State funds,”51 the Court saw value in the comparative study of religion. Religious education could convey “moral character and . . . the inherent virtues of human-being [sic] such as truth, love and compassion” necessary to the survival of democracy.52 Delivering the judgment, Justice Shah, wrote: “Bereft of moral values secular society or democracy may not survive.”53
The point of these justices was not to indoctrinate, focus on a single faith, or dilute differences to reach a common denominator. They sought secular but neither anti- or nonreligious education. As Justice Shah put it: “Value-based education is likely to help the nation to fight against all kinds of prevailing fanaticism, ill-will violence, dishonesty, corruption, exploitation, and drug abuses.”54
On the advantage of comparative study of religion, Justice Shah wrote: “Let knowledge, like the sun, shine for all and then there should not be any room for narrow-mindedness, blind faith, and dogma. For this purpose also, if basic tenents of all religions over the world are learnt, it cannot be said that secularism would not survive.”55 Justice Dharmadhikari agreed that education about religion in schools “fully maintained out of state funds” must be “different from religious education” offered in schools “maintained by minorities or those established under any endowment or trust.”56
The U.S. Supreme Court long since approved comparative or historic study of religions.57 Those whose goal was the promotion of a specific faith have often misunderstood the U.S. Supreme Court, especially in the Warren years, as against religion, instead of for broad and comparative knowledge of different faiths. The Indian Court is somewhat clearer.
The same concern with the risk of fanaticism and the reality of intercommunal violence led toward regulation of speech more like German law, with the same downside of potential abuse. The Indian Constitution permits “reasonable restrictions” on free speech for “the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”58 Similar restrictions are permitted on assembly, association, travel, and settlement.59 The Court set aside an election because a candidate appealed to religious hatred and used the candidates’ faiths to seek election. The Court held that seeking votes because of religion was properly prohibited, without needing to assess the likely impact.60
Nevertheless, the biggest threat to Indian democracy came from the top. The Court rejected several land reform measures of Prime Minister Indira Gandhi, daughter of Jawaharlal Nehru who had been a founder and the first prime minister of India. Gandhi overturned the Court’s rulings with amendments to the Constitution, and moved the Court leftward with new justices. The Court retreated but landmark decisions denied that amendments could change the “basic structure” of the Constitution.61 Some amendments, though procedurally correct, were unconstitutional.
U.S. Supreme Court decisions are often based on inferences from the structure of the Constitution, its federalism, and separation of powers. The Indian Court’s decision was more radical. The crucial 1973 Kesavananda Bharati case arose out of a contest over land reform but in explaining their conclusion that constitutional amendments designed to overturn prior judicial rulings were themselves unconstitutional, the justices used the democratic provisions of the Constitution to explain why some amendments would be illegitimate. In the process they announced a number of conclusions about democracy itself.
Justice Khanna’s opinion made the fundamental point: “It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish [the two houses of their legislature].” Equally fundamental, “[t]he secular character of the state” which prohibits it from “discriminat[ing] against any citizen on the ground of religion only cannot likewise be done away with.” Justice Khanna added: “Provision regarding the amendment of the Constitution does not furnish a pretence for subverting the structure of the Constitution . . . or provide sanction for what may perhaps be called its lawful harakiri.” Constitutional suicide is not an “amendment.”62
Justice Khanna recounted Hitler’s use of emergency powers under the Weimar Constitution “to issue decrees suspending the rights guaranteed by the basic law and to make direct use of the army and navy.” But “almost from its beginning the government found itself in one emergency after another, so that rule by executive decrees . . . supplanted the normal functioning of the legislative branch of government.” As a result, “[i]n less than two years, the Weimar Republic was transformed into a totalitarian dictatorship.”63 Hitler had not taken power by constitutional amendments, but the justices made clear that democratic government would not be sacrificed.
For the dissenters, elections and executive responsibility to the legislature sufficed for democracy.64 But for the majority, democracy implements popular sovereignty and “enabling an authoritarian system . . . [is] the negation of parliamentary democracy.”65 Instead, the Constitution’s democratic structure required “legislative, executive and judicial organs,”66 a democratic parliament and state participation in the amending process.67
The justices went beyond the specifics of the governing system; the “democratic ideal” also “assures . . . the dignity of the individual and other cherished human values” for full personal development.68 Fundamental rights help “ensure the ideal of political democracy and prevent authoritarian rule.”69
The Court’s linkage of democracy with widespread economic welfare was equally groundbreaking. In describing that linkage, The Court articulated an understanding of democracy accelerated by World War II and reflected in the Indian Constitution. Justices K. S. Hegde and A. K. Mukherjea wrote: independence “from foreign rule . . . [is] only . . . an opportunity to bring about economic and social advancement.” Tying that directly to the Indian Constitution, they wrote, “this liberty to do better . . . is the theme of the directive Principles of State Policy in Part IV of the Constitution.”70 They added, “Representative democracies will have no meaning without economic and social justice to the common man.” Justice Reddy emphasized their point in a history of the Directive Principles.71
Perhaps to mollify the prime minister about the fate of India’s impoverished millions, the justices emphasized the Constitution’s “mandate to build a welfare State” as part of the basic structure, which could not be sacrificed.72 The Constitution barred the courts from applying them, but Justices Shelat and Grover announced, “the court may not entirely ignore these directive principles” when “determining the scope and ambit of the fundamental rights.” Instead it “should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible.”73
Meanwhile, the Allahabad High Court banned Gandhi from Parliament for six years for misconduct in the 1971 elections. She responded with a constitutional amendment overturning that result. That suit arrived in the Supreme Court of India in 1975, two years after Kesavananda Bharati.74 By then, Gandhi had declared a state of emergency. Legislators were jailed during what Indians refer to as “the Emergency,” probably altering the vote in Parliament on the amendment.75 The Court retreated regarding her seat in Parliament but four of the five justices who heard the appeal held the amendment inconsistent with the basic structure doctrine of Kesavananda Bharati, although they differed in their reasoning.76
The crisis culminated in rule by decree from June 1975 to March 1977, and violent suppression of opposition. Sankaran Krishna reported that Indira Gandhi suspended the Constitution, “imprison[ing] all key opposition leaders and Congress dissidents, and . . . [running] roughshod over the democratic rights of citizens.” The Emergency led to “the arbitrary arrest and imprisonment of more than a hundred thousand citizens . . . a campaign of forced sterilization . . . the disappearance of hundreds of individuals, and produced the complete demoralization of the bureaucracy,” doing lasting harm to Indian democracy.77
A stronger judiciary emerged from the chaos but at great cost.78 Only the Preamble mentions democracy, but the Court repeatedly decided that the Constitution protects what democracy requires, including respect for individual dignity, political competition, universal suffrage, civil liberties, and economic justice as envisioned in the Directive Principles on welfare, always emphasizing universalism.
The Court starts with “government by the people.”79 That principle mandates “adults [sic] suffrage, that is to say, every person who is citizen of India and who is not less than 18 years of age . . . shall be entitled to be registered as a voter at any such election” unless “disqualified . . . [by] non-residence, unsoundness of mind, crime or corrupt or illegal practice.”80
Democracy means “government by the people . . . a continual participative . . . appeal to the people after every term.” To do that, India has “adult franchise and general election as constitutional compulsions.” Indeed, “the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.”81 The Court repeatedly stresses “free and fair periodical elections based on adult franchise” are necessary for democracy.”82 Everyone must be included: “True democracy cannot exist unless all citizens have a right to participate in the affairs of the polity of the country.”
Participation is “meaningless unless the citizens are well informed” and “a farce” when media are “monopolised.”83 Therefore the Court protects the “[v]oter’s (little man-citizen’s) right to know” as “fundamental and basic for survival of democracy.”84 The Court added, “The right to get information in democracy . . . [is a] natural right flowing from the concept of democracy.”85 The Court also added its weight to the drive for voting machinery that facilitates verification of the accuracy of the recorded ballot.86
The Indian Court understands competition is essential to a democratic system and courts as barriers to devices that entrench officeholders against the wishes of their constituents. As the Court put it, the “essence” of “parliamentary democracy . . . is to draw a direct line of authority from the people through the legislature to the executive.”87 The “legislature, thus, must owe their power directly or indirectly to the people.”88
By contrast, interreligious violence especially around elections, led the Court to extensive restriction of speech, and that attitude limiting speech to proper behavior extended to criticism of the courts’ own work. “Bonafide criticism of any system or institution including the judiciary cannot be objected to as healthy and constructive criticism are tools to augment forensic tools for improving its function”; but “[n]obody has a right to denigrate others right of person and reputation”89 to “impair or hamper the administration of justice,”90 and “society . . . is entitled to regulate freedom of speech or expression by democratic action.”91 Judges and courts can properly be criticized but only “if reasonable argument or criticism in respectful language and tempered with moderation [are] offered.”92
In the face of Justice Frankfurter’s advice to omit a due process clause, the Indian Supreme Court balances freedom and security: “[L]iberty . . . must give way” when it conflicts with state or public security; but “[i]n a democracy governed by the Rule of Law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed.”93 An early decision of the Supreme Court of India overturned a statute that allowed the dissolution of an association that assisted the then banned Communist Party. The Court invalidated the statute for lack of adequate procedural safeguards.94 And the Court is also prepared to hold the police accountable.95
The Kesavananda Bharati majority agreed that India is a federal state, and that federalism is a part of the basic structure of the Indian Constitution that could not be abolished.96 But they did not make the connection between federalism and democracy, so common in American thinking, or discuss any relation between them. Their point was not a specific conception of federalism or its functions, but rather that some federal role had to be retained. Beyond that fundamental point, their approach was positivist—federalism is whatever the Constitution provides.97 Those in the minority denied “the theory [that federalism imposed] implied or inherent limitations” on national power.98 Justices on both sides were at pains to demonstrate the general supremacy of the federal government.99
The Indian Court demonstrated a great deal of courage in protecting Indian democracy and has won respect from jurists worldwide for its work. It took strong stands on constitutional structure, elections, equality, and religious tolerance. Its rhetoric on economic welfare was reflected in another group of cases that, while not repeating the connection to democracy, required consideration of the needs of the poor.100 Indian positions on free expression are troubling because of vague standards, the Court’s preference for its own self-interest and the difficulty of defining respectful interfaith dialog or criticism. Perhaps like all courts, its record is mixed but nevertheless inspiring.
The Supreme Court of Canada understands “the values and principles essential to a free and democratic society” as including “respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.”101 In its “commitment to social justice and equality,” the Court appeared to be referring to the kind of economic rights developed in the Universal Declaration and in the Indian Directive Principles. Quoting the same language in a later decision, the Court held that hate speech had no place in a democratic society.102
Looking at several equality provisions of the Canadian Charter of Rights and Freedom, the Court held that promoting equality is not just one of many constitutional requirements, but “an undertaking essential to any free and democratic society.” The Court held that speech can “undermine our commitment to democracy” when it attacks democratic values and therefore it was appropriate for a statute to protect equality and democracy from the promotion of hatred.103 “Hate propaganda” argues “for a society in which the democratic process is subverted” and people “are denied respect and dignity simply because of racial or religious characteristics.” So the Court concluded such hate speech is “wholly inimical to the democratic aspirations of the free expression guarantee.”104
In reaching those conclusions, the Court upheld the prosecution of James Keegstra, a high school teacher in Alberta who was charged “with unlawfully promoting hatred against an identifiable group by communicating anti-semitic statements to his students.”105 He had taught anti-semitism in class and graded the students on how well they learned it.
In other cases, the misuse of prosecutions for abusive language against the very people the statute was designed to protect has been troublesome.106 Narrower judgments restricted to the obligations of teachers might well have reached similar conclusions while leaving less room for abuse. The Court’s response that the requirement of intent would protect against misuse seems inadequate. Nevertheless, the Keegstra decision reflects the feeling of commitment by members of the Canadian Supreme Court to protect and advance democracy, to treat equality as an essential part of democracy, and to keep hatred out of the schools. As the Court wrote in another decision, “hate propaganda . . . erod[es] the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality.”107
When the issue of the possible secession of Quebec heated up in the late 1990s, the government asked the Court to advise it on three questions: whether the Constitution of Canada permits Quebec to secede unilaterally, whether international law gives Quebec that option, and whether the Constitution or international law would take precedence in the event of a conflict.108 Those questions led the Supreme Court of Canada to make an extensive examination of the concept of democracy under both the Canadian Constitution and international law.
The Court started by returning to section 1 of the Canadian Charter of Rights and Freedoms, which uses the term democratic as a limitation on how rights and freedoms can be circumscribed. The Supreme Court concluded that “there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us.” The Court then listed “federalism; democracy; constitutionalism and the rule of law; and respect for minorities.”109 The Court decided that these principles are constitutionally fundamental, “[a]lthough these underlying principles are not explicitly made part of the Constitution by any written provision.” The Court concluded: “[I]t would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood.”110 As the Court explained: “These principles . . . are the vital unstated assumptions upon which the text is based” and therefore “inform and sustain the constitutional text.”111
This of course is familiar to U.S. lawyers as “structural” interpretation. It is the same logical step that the U.S. Supreme Court has taken through much of its history in discussing federalism and the separation of powers.112
The Canadian Supreme Court explained that the concept of democracy includes the entire population, rather than justifying the rule of one portion of the population by another. The Court saw a Canadian tradition of “evolutionary democracy moving in uneven steps toward the goal of universal suffrage and more effective representation. Since Confederation, efforts to extend the franchise to those unjustly excluded from participation in our political system—such as women, minorities, and aboriginal peoples—have continued, with some success, to the present day.”113 The Constitution and the Court treat popular sovereignty and the right to vote as coextensive. Institutionally, “democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise.” Individually, “the right to vote in elections to the House of Commons and the provincial legislatures, and to be candidates in those elections, is guaranteed to ‘Every citizen of Canada.’”114 Democracy includes “the right of citizens to participate in the political process as voters . . . and as candidates.”115
The “notwithstanding power” permits “Parliament or the legislature of a province . . . [to] expressly declare . . . that [an] Act or a provision . . . shall operate notwithstanding” its violation of a number of other protections in the charter. The Supreme Court of Canada noted that the significance of the “democratic principle,” however, which requires regular parliamentary elections, “is not subject to the notwithstanding” power; neither is the right to vote.116
“[D]emocracy is [also] fundamentally connected to substantive goals, most importantly, the promotion of self-government.”117 The Court “articulated some of the values inherent in the notion of democracy” and “essential to a free and democratic society.” To spell them out it returned to the language of Oakes listing human “dignity . . . social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and . . . institutions which enhance the participation of individuals and groups in society.”118
The Court’s assertion of the importance of the connection between democracy and human welfare is reminiscent of Germany, India, and the UN Universal Declaration of Human Rights. In making that connection the Supreme Court of Canada implicitly drew a philosophical connection between the inclusiveness of the right and the purposes of democracy, as in Lincoln’s “of . . . by . . . and for the people.” Though the Canadian judgment appears to have been based on moral principles rather than empirical connections, a strong causal relationship is verified by empirical work, to be discussed below.
“Universal suffrage and more effective representation,” the rule of law and the protection of minority rights are all related to core democratic concepts of providing opportunity for discussion and change.119 Thus it is inconsistent with democracy for a majority to decide to exclude a portion of the population in the future. The position of the province of Quebec depended on resolving minority rights with respect to both language and religion throughout Canada, not on the exclusion of English or French speakers from portions of Canada.120
The Court concluded that all of the principles involved—federalism, democracy, constitutionalism, the rule of law, and respect for minorities—enveloped Quebec in wider structures that barred unilateralism, but that also imposed a duty on the federal government to bargain in good faith with Quebec over the issues and incidents of secession if the Quebecois voted to secede.121
Many international agreements protect self-determination but, the Court added, treat it as a counterpart of the democratic principle.122 Democracy, under those agreements, belongs to the nation state as an entity. Parts of the state have the right to secede only if they are oppressed. Quebec had been well represented in Canada, the source of many prime ministers, and not oppressed, despite the desire of some Quebecois for their own state.123
Shortly after the Quebec case, the Court reconsidered the exclusion of prisoners from voting in Canadian elections and reinforced its conclusion that democratic rights must be universal.124 A prior statute had been found unconstitutional two decades earlier. Section 3 of the charter declares “[e]very citizen of Canada has the right to vote.” The Supreme Court held that a statute denying voting rights to people “imprisoned in a correctional institution serving a sentence of two years or more”125 violated the voting rights provision of the charter.
Once again the Court considered the charter requirement that any limitation of a protected right is permissible only if “demonstrably justifiable in a free and democratic society.” The Court held it was not. “The right to vote is fundamental to our democracy and the rule of law.” Therefore, the Court held, “[a]ny limits on it require not deference” to the judgment of the legislature, “but careful examination.”
Having no counterpart, the Canadian Court had no occasion to examine the language of the Fourteenth Amendment section 2 providing an electoral penalty “when the right to vote at any [federal and most state] election[s] . . . is . . . in any way abridged, except for participation in rebellion, or other crime.” Instead, the Canadian judgment examined equality and the vote as central aspects of democracy.
The Court concluded: “The Crown failed to establish a rational connection between denying the vote to penitentiary inmates and its stated goals of promoting civic responsibility and respect for the rule of law, and enhancing the general purposes of the criminal sanction.”126 The Court wrote that denying “prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility.” In fact, the Court found it “more likely to send messages that undermine respect for the law and democracy than messages that enhance those values.127
At a deeper level, the Court found that disenfranchising “penitentiary inmates [of] the right to vote misrepresents the nature of our rights and obligations under the law and consequently undermines them.”128 Basic democratic principles require more: “In a democracy . . . the power of lawmakers flows from the voting citizens.” The “lawmakers act as the citizens’ proxies.” Law receives “its legitimacy or force” from “[t]his delegation from voters to legislators.”129
Both “the legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote.”130 Those conclusions “[flow] from the fact that the law is made by and on behalf of the citizens.”
In language reminiscent of the founding of the United States, the Court wrote: “This connection, inherited from social contract theory”—which Americans took from Hobbes, Locke and others at the time of the American Revolution—was “enshrined in the Charter,” and “stands at the heart of our system of constitutional democracy.”131 Equality is central to the social contract, and central to democracy: “The government’s . . . political theory . . . would permit elected representatives to disenfranchise a segment of the population.” It “finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation.”132
The Court also rejected the notion that the inmates lost the right because of their own misbehavior: “Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter. . . . It also runs counter to the plain words of s. 3, its exclusion from the s. 33 override, and the idea that laws command obedience because they are made by those whose conduct they govern. For all these reasons, it must . . . be rejected.”133 Everyone’s vote counts.
In 2006 Gurbaj Singh Multani, an orthodox Sikh, challenged school tolerance when he was about twelve and accidentally dropped his kirpan, a metal religious object resembling a dagger. School authorities, Gurbaj Singh, and his parents agreed he could wear the kirpan if sealed inside his clothing but the board refused. The Court returned to section 1 of the Canadian charter to harmonize the competing interests and pointed to the importance of religious tolerance: “Learning respect for . . . [the constitutional] rights [of all members of society] is essential to our democratic society and should be part of the education of all students.” Schools “have a duty to foster the respect of their students” for the rights of others and “these values are best taught by example and may be undermined if the students’ rights are ignored by those in authority.”134 By contrast, “an absolute prohibition would stifle the promotion of . . . multiculturalism, diversity, and . . . an educational culture respectful of . . . others.”135
Principles entail risks and other students might think it unfair that they cannot carry knives, but it is “incumbent on the schools to . . . instill” multiculturalism in students because it is “at the very foundation of our democracy.”136
In these and other cases, democracy matters to the Supreme Court of Canada. Because it matters, many things follow. Democracy requires and is based on popular sovereignty, including the entire adult population in the voting electorate. They are expressed through discussion and an electoral process that makes the government accountable to the public. They require concern for public welfare, civil liberties, and minority rights. All are inherent in the concept of democracy and are mutually supportive.
The Constitutional Court of South Africa inherited an unusual responsibility—to decide whether the yet unwritten 1996 Constitution complied with Constitutional Principles negotiated in 1993 as white-run South Africa became the new multiracial South Africa.137 Equality and universality were touchstones of virtually every provision. The shift to black majority power made equal rights important to white, tribal, and Asian South Africans.
Under the Constitutional Principles, the Court would determine whether the new Constitution (a) provided one state, common citizenship and “a democratic system of government committed to achieving equality between men and women and people of all races”; (b) created a “representative government embracing multi-party democracy, regular elections, universal adult suffrage, [and] a common voters’ roll”; and (c) assured minority participation in the political system with “proportional representation” and “participation of minority political parties in the legislative process in a manner consistent with democracy” and “democratic representation” at “each level of government.”138 These principles required the Court to consider the meaning of democracy before the new Constitution could take effect.
The Court issued a single opinion signed “By the Court” to emphasize its unity at the unprecedented task.139 It held the text largely complied with the Constitutional Principles.140 The new document created a “democratic system . . . founded on openness, accountability and equality.” It provided for equality and inclusion of all in the political system “with universal adult suffrage . . . regular elections” and “representative government.” The principles required, and the Court held, that the proposed Constitution embrace “multi-party democracy, a common voters’ roll and, in general, proportional representation.”141 Voters choose parties, not individuals, in proportional representation systems, and the number of votes for the party determines the number of individual candidates who would be seated. Proportional representation would make the new South African government more like European than U.S. models, and it would permit representation of regional minorities, including white South Africans as well as regional tribal minorities.142
The Court commented that “the drafters of the . . . [Constitutional Principles], having . . . established the principle that the state they contemplated would be a democracy, immediately proceeded to describe one of its key attributes,” namely that “[e]veryone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties.” The Constitutional Principles required that those rights, freedoms, and liberties “shall be provided for and protected by entrenched and justiciable provisions in the Constitution.” In other words, courts should be able to protect those rights and the legislature should not be able to abandon them.
Quoting the Preamble to the Interim Constitution, which accompanied the Constitutional Principles, the Court explained that the drafters were determined “to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms.”143 In addressing the content of what rights are “fundamental,” the Court surveyed the major international documents of the years since World War II. It rejected a search for complete consensus, which would leave little content. Instead they wrote: “What the drafters had in mind were those rights and freedoms recognised in open and democratic societies as being the inalienable entitlements of human beings.”144 The court viewed the Constitutional Principles as seeking “those rights that have gained a wide measure of international acceptance as fundamental human rights” and requiring that those “must necessarily be included.”145
The constitutional text permits fundamental rights to be limited or infringed only if the “relationship between the right to be protected and the importance of the objective to be achieved by the limitation” were appropriately balanced, including an examination of alternative means to accomplish the government’s purpose. That is known in South Africa and other countries as proportionality and is similar to a strong version of what is known in the United States as strict scrutiny.146
The Court was sensitive to the constitutional bargains reached to maximize support for the new government. The requirement that the Constitution protect democratic values while preserving “traditional leadership, customary law and, at the provincial level, traditional monarchy” presented a major challenge.147 The Court recognized that “[i]n a purely republican democracy, in which no differentiation of status on grounds of birth is recognised, no constitutional space exists for the official recognition of any traditional leaders, let alone a monarch.”148 The 1993 Principles, however, required recognition of traditional institutions. “The non-derogation section thus opens the way for traditional leadership to be involved in democratic government,” although without prescribing how.149
Preservation of traditional codes also conflicted with “equality before the law” if the 1993 Principles “presuppose[ed] a single and undifferentiated legal regime for all South Africans.”150 However, the 1993 Principles “authori[zed] . . . recognition of indigenous law.”151
Reconciling the Constitution with the required democratic participation in government presented the Court with several issues, one group of which revolved around the role of political parties. The 1993 Principles required “[p]rovision . . . for participation of minority political parties in the legislative process in a manner consistent with democracy.” The draft constitution, however, gave each province a single vote in the National Council of Provinces (NCOP) decided by each delegation’s majority. Provincial minority parties would not be reflected in the NCOP. Noting provisions “for the full participation of minority political parties” in the National Assembly, the Court decided that “to involve the provinces” and “provide a forum [for] . . . provincial interests,” one vote per province was acceptable.152
Another question revolving around the representation and participation of South Africans in government through minority parties arose over the requirement that “legislators . . . vacate their seats if they cease to be members of the parties that nominated them.”153 The Court wrote that the antidefection clause “meets the expectations of voters who gave their support to the party” and therefore promotes accountability to the electorate.154 It held that legislators’ freedom from such restraint is not universally accepted.155
As in the United Kingdom, the proposed constitution permitted executive officers to be members of the legislature. Against the charge that it provided an insufficient separation of powers, the Court responded that no countries completely separate powers.156 It found that “the overlap provides a singularly important check and balance on the exercise of executive power” which “makes the executive more directly answerable to the elected legislature.”157
The Court concluded that the 1996 draft largely met the standards of the 1993 Principles. But several protections for fundamental, individual, and minority rights were found wanting and not sufficiently protected from abridgment, and the 1996 draft did not entrench judicial jurisdiction to protect those rights, nor the right of individual employers to engage in collective bargaining. The Court required more protection for minorities from the amendment process through “special procedures involving special majorities.” And it held the 1996 draft did not safeguard the independence and impartiality of the Public Service Commission, Auditor-General and Public Protector. Regarding federalism, the Court decided that the 1996 draft failed to provide the provincial autonomy, fiscal and other powers required by the 1993 Principles and failed to provide formal legislative procedures for local legislatures.158
As the Court predicted, those problems were quickly solved and the Constitution went into effect as amended a little over two months later.
The following year, the Court linked democracy with human welfare.159 Suffering from irreversible renal failure, forty-one-year-old Thiagraj Soobramoney sought dialysis based on the 1996 Constitution which provides: “No one may be refused emergency medical treatment” and stipulates “[e]veryone has the right to life.”160 The Court decided against ordering dialysis because choices on the use of scarce resources were inevitable and the medical protocols appropriate. But President Chaskalson’s opinion for the Court focused on the Constitution’s economic aspirations. He noted South Africa’s “great disparities in wealth” and the millions “living in deplorable conditions and in great poverty” with high unemployment and inadequate security, and without “access to clean water or to adequate health services”; he added the “commitment to address” these conditions “and to transform our society into one . . . [with] human dignity, freedom and equality, lies at the heart of our new constitutional order.”161
President Chaskalson emphasized the point with words of the Preamble: “We therefore . . . adopt this Constitution . . . to—Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights . . . [and] Improve the quality of life of all citizens and free the potential of each person.” This commitment to democratic values, social justice, and fundamental human rights is “reflected in various provisions of the bill of rights.” In addition, “human dignity, equality and freedom” are specifically described as “democratic values” in the Constitution.162 “Some rights in the Constitution are the ideal . . . to be strived for . . . amount[ing] to a promise . . . and an indication of what a democratic society aiming to salvage lost dignity, freedom and equality should embark upon.”163
Justice Sachs, concurring, added that the Court’s opinion “does not merely ‘toll the bell of lack of resources.’”164 In “open and democratic societies based upon dignity, freedom and equality,” principled and consistent decisions about care are preferred to merely arbitrary ones.165 And he elaborated on the necessary “framework based on . . . interdependence.” Sachs explained that we depend on each other for a “healthy life . . . : the quality of air, water, and sanitation which the State maintains for the public good; the quality of one’s caring relationships, which are highly correlated to health; as well as the quality of health care and support furnished officially by medical institutions and provided informally by family, friends, and the community.”166
The justices linked a free and democratic society with programs for the welfare of the public, including health care, as twin inferences from the same fundamental human values, to which they added that one is a goal of the other.
Four years later, the Court provided limited relief, declaring that the government had not satisfied its obligation to house those without decent places to live:167 “Mrs Grootboom and . . . other[s] . . . lived in an informal squatter settlement . . . in shacks . . . [with] no water, sewage or refuse removal services and only 5% of the shacks had electricity. The area is partly waterlogged and lies dangerously close to a main thoroughfare.”168 They tried to move onto better land but were evicted. Because their former places were now occupied, they had nowhere to go. The government objected even to providing “tents, portable latrines and a regular supply of water (albeit transported).”169 The problem stemmed from the apartheid era when government evicted Africans from areas near available jobs. But the Constitution promised efforts to improve the lives of those forced to live in conditions the Court described as “appalling.”
The Court understood that allocating resources involves complex trade-offs but concluded that government had not acted appropriately. “Our Constitution entrenches both civil and political rights and social and economic rights,” the Court said. “All the rights in our Bill of Rights are inter-related and mutually supporting.” It added, “human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter.”170 Welfare rights affect everyone because until “the plight of these communities is alleviated, people may be tempted to take the law into their own hands in order to escape these conditions” as Mrs. Grootboom and those with her tried to do.171
Government, the Court held, “failed to make reasonable provision within its available resources for people in the Cape Metropolitan area with no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations.” Instead “the Constitution requires the state to devise and implement within its available resources a comprehensive and coordinated programme progressively to realise the right of access to adequate housing.”172
While it is difficult to measure the impact of the Court’s declaratory relief, Theunis Roux reported “a slow but inexorable shift in national housing policy towards the position preferred by the Court.”173
Meanwhile, the Court made good on its conclusion that “[e]veryone has the right to have access to . . . health care services.”174 The manufacturers had offered Nevirapine free at birth for babies of HIV-infected mothers but the government refused to provide it at public hospitals despite a World Health Organization recommendation because it prevents transmission to the children. The Court ordered the government to make it available “without delay.”175 The Court’s handling of constitutional welfare rights was thus cautious but positive.
The democratic principle of universal suffrage was challenged by the refusal to allow prisoners to vote. The first of two suits was brought before any legislation on the subject.176 After the decision in favor of the prisoners, government passed legislation leading to a second suit brought by the National Institute for Crime Prevention and the Reintegration of Offenders (NICRO). It concluded that prisoners have a right to vote and government had to make it possible.177
The Constitution bars any limitation on protected rights that are not “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom,” and requires analysis of the “proportionality” of the means chosen to the objectives and alternatives.178 The Court in NICRO quoted its earlier opinion stressing the importance of “the universality of the franchise . . . for nationhood and democracy . . . [and as] a badge of dignity and of personhood. Quite literally, it says that everybody counts.”179 The court later added: “[T]he right to vote is foundational to democracy which is a core value of our Constitution . . . denial of the right to vote was used to entrench white supremacy and to marginalise the great majority of the people of our country. . . . [I]t is for us a precious right which must be vigilantly respected and protected.”180
The systematic deprivation of voting rights observed in South Africa parallels the incarceration of blacks and Latinos by the American criminal system out of all proportion to their participation in criminal activity, resulting in extensive disenfranchisement of minorities in the United States.181
After discussing the Canadian cases on prisoners voting rights, the Court tactfully added that the government in South Africa had not provided information that would justify denying the prisoners’ rights and ordered that the prisoners be allowed to vote.182
Saying voting laws “must be interpreted in favour of enfranchisement rather than disenfranchisement,”183 the Constitutional Court decided that the African Christian Democratic Party should be allowed to contest a local election. The party had been barred because of a late deposit to cover costs. But the Court wrote that a previous general deposit was sufficient and should be used.184 The “foundational values” in the Constitution, including universal adult suffrage, require the courts and the Electoral Commission “to seek to promote enfranchisement rather than disenfranchisement and participation rather than exclusion” when interpreting electoral statutes.185
The Court also decided democratic principles required enfranchising voters in a case involving a change in provincial boundaries. The changes stemmed from the intentional resettlement policies of the prior apartheid regime. The case raised issues that resemble the combination of gerrymandering with zoning and other American suburbanization policies. The Court saw the risk of “undermin[ing the South African] multi-party system of democratic government.” Although “the national legislature could alter provincial boundaries and any [necessarily included] municipal boundaries,” the Court found “there were good reasons to exclude legislatures from changing [any other] municipal boundaries and giving that power exclusively to an independent body” in order to avoid “political interference.” The independent board was set up for that reason.186
In a sequel, the Court held that municipal hearings were required for its role in the process of changing boundaries,187 in order to provide “participatory democracy, accountability, transparency and public involvement,” because the South African “conception of . . . democracy” requires more participation than merely voting.188
The antidefection clause returned to the Court when the national legislature amended the Constitution to permit legislators to change parties and still keep their seats in national, provincial, and local legislatures.189 As parties forged alliances and ran under new banners, it led to difficulty and confusion, and the Constitution was changed.
Crossing the floor to join another party has the effect of changing the proportion of legislators for the relevant parties. The Court was asked to decide whether the change undermined the basic structure of the Constitution and was therefore impermissible as the Indian Supreme Court sometimes found. The South African Court held it did not undermine the basic democratic structure. Many electoral systems, the court wrote, “are consistent with democracy, some containing anti-defection clauses, others not; some proportional, others not. . . . [The changes are not] so fundamental to our constitutional order as to preclude any amendment of their provisions.”190
Nor was an antidefection clause essential to proportional representation. The “link between voter and party” is “closer” in proportional systems. “But even in constituency-based elections,” the link between legislators and parties is close and defectors are “equally open to the accusation” of betraying the voters.191 The nondefector rule therefore “is not an essential component of multi-party democracy . . . [or] proportional representation.”192
The Court did not think the change required the special procedures applicable to a change in the founding values, specifically the requirement of multiparty democracy.193 Nor did the mere shift of partisan advantages make it unconstitutional. All electoral systems favor one or another political party or position to some degree. “For instance, the introduction of a constituency-based system of elections may operate to the prejudice of smaller parties,” but it is still a democratic system.194 And “accommodat[ing] mid-term shifts in political allegiances” appeared to be a valid purpose.195
The Court refused to look at motives or consequences.196 It focused only on whether the procedural rules, founding purposes, and Constitutional Principles left the legislature power to make the change. The Court ultimately invalidated one of the four acts on the ground that it could only have been passed as a constitutional amendment, not as ordinary legislation.197
Democratic requirements for participation in government returned to the Court regarding appointments to mayoral committees.198 Johannesburg’s mayor appointed only members of the African National Congress (ANC) to his mayoral committee. The ANC had spearheaded the struggle against apartheid and won the majority of seats on the municipal council, to which the Constitution gave executive authority.199 The Constitution required that “parties and interests reflected within the Council . . . be fairly represented” on committees of the council.200 The impact of exclusion would be racial, tribal, and ideological. The Court adopted a separation of powers argument, holding that minority parties had to be fairly represented on legislative but not executive committees.201 The majority wrote that the constitutional goal “to provide democratic and accountable government for local communities” meant “ensuring that the will of the majority prevails and also that the views of the minority are considered.”202 Thus their language supported both popular sovereignty and inclusion of contrasting views. And the Court linked inclusiveness to democracy. But in their judgment that concept was limited.
Justice O’Regan dissented, writing: “The fundamental constitutional purpose is to undo the separation, exclusion and inequality of the past by ensuring that there is shared involvement in deliberation subject, of course, to the right of the majority to make decisions.”203
Justice Sachs, concurring, agreed with much of O’Regan’s “eloquent and forceful reasoning . . . particularly . . . [on] the importance of . . . inclusivity at the local government level.”204 Justice Sachs put the argument for inclusion in both international and traditional terms:
The requirement of fair representation . . . contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered. The dialogic nature of deliberative democracy has its roots both in international democratic practice and indigenous African tradition. It was through dialogue and sensible accommodation on an inclusive and principled basis that the Constitution itself emerged. It would accordingly be perverse to construe its terms in a way that belied or minimised the importance of the very inclusive process that led to its adoption, and sustains its legitimacy.205
Like some U.S. states, legislation regulated approval of abortion facilities together with what the Court collectively described as health legislation.206 Doctors for Life complained that the “[obligation] to facilitate public involvement” in the legislative process had not been honored on abortion facilities and other pieces of health related legislation.207 Reviewing the issue of participation, the Court described it as “at the heart of our constitutional democracy,” and “crucial” to it and overturned some of the legislation.208
In support of its decision, the Court cited international documents describing the right of participation as “a general right to take part in the conduct of public affairs; and a more specific right to vote and/or to be elected.”209 The International Covenant on Civil and Political Rights (ICCPR) provides: “Every citizen shall have the right and the opportunity . . . [t]o vote and to be elected at genuine periodic elections . . . by universal and equal suffrage and . . . by secret ballot, guaranteeing the free expression of the will of the electors.”210 Justice Ngcobo emphasized that the ICCPR “guaranteed . . . the ‘opportunity’” as well as the right. Suffrage must be both “universal and equal.”211 Summarizing the ICCPR, he wrote: “Taken together, they seek to ensure that citizens have the necessary information and the effective opportunity to exercise the right to political participation.”212 He found similar provisions in African and inter-American documents which protected the right to take part and participate in self-government, though realized in different ways.213
South Africa, like much of the world, protects less speech and expression than U.S. doctrine. Their rules became an issue when the Department of Correctional Services continued to hold Mr. Terre Blanche, the leader of the Afrikaner Weerstandsbeweging (African Resistance Movement, a white supremacist, neo-Nazi group), despite an order granting him bail. Mr. Russell Mamabolo, spokesperson of the Department of Correctional Services, told a local paper that the order granting bail was in error. He also told the reporter that the department had documents that showed that the order granting bail was erroneous.
The judge was furious and directed his anger at Mr. Mamabolo.214 The following Monday morning, applicants for the state and the prisoner appeared before him, though the nature of the proceedings was not clear to the Constitutional Court. The judge questioned them about the facts and gave them an opportunity to comment. Mr. Mamabolo’s counsel was not given the opportunity to comment “or explore any of the factual material.”215 Counsel did, however, tell the judge that “the Constitution has overtaken the court’s previous powers to summarily order people before court to give an explanation of any kind whatsoever.”216
The judge held Mr. Mamabolo in contempt. It is somewhat unclear from the judge’s comments whether he was held in contempt for ignoring the bail order, although as the department’s public affairs representative there was no indication that he had power to order the release of Mr. Terre Blanche, or whether he was held in contempt for saying the judge was wrong.217 The judge declined to hold a commissioner in contempt because he may not have known about the statements to the press, although he might have had more to do with the actions of the department holding Mr. Terre Blanche.
The Constitutional Court unanimously set the contempt order aside, but the justices were disturbed by the position taken by the department: “It would have been a very serious matter indeed, calling for speedy and decisive action, if the order had actually been defied. The spectre of executive officers refusing to obey orders of court because they think they were wrongly granted, is ominous. It strikes at the very foundations of the rule of law when government servants presume to disregard orders of court.”218 And the Court took the opportunity to assert a judicial right of self-protection. The Court’s opinion initially challenged the power to condemn criticism: “Why should judges be sacrosanct? Is this not a relic of a bygone era . . . ? Are judges not hanging on to this legal weapon because it gives them a status and untouchability . . . ? Is it not rather a constitutional imperative that public office-bearers, such as judges, who wield great power, as judges undoubtedly do, should be accountable to the public who appoint them and pay them?”219 To which Justice Kriegler added, “vocal public scrutiny . . . [is] a democratic check on the judiciary.”220 Indeed, “[f]reedom of expression . . . is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm.”221 It is especially important in South Africa because of the country’s “recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression,” Justice Kriegler continues, “[an] open market-place of ideas is all the more important . . . because our democracy is not yet firmly established. . . . Therefore we should be particularly astute to outlaw any form of thought-control, however respectably dressed.”222 But because the courts are weak, their answer was sometimes, not never.223 They resisted the American approach because the power “of invalidating any law or governmental conduct . . . [that courts find] inconsistent with the Constitution . . . could involve the judiciary in public contention.”224
“[H]aving reposed such trust in the judiciary,” the Court concluded, the Constitution shields the courts.225 It requires the government to “assist and protect the courts to ensure” their “independence, impartiality, dignity, accessibility and effectiveness.”226 That language protects courts against slander, since “the crime of scandalising aims to protect” the courts’ dignity.227
Justice Sachs, concurring, also thought the courts’ dignity sometimes needed protection, but he resisted the majority’s language. After quoting warnings from the Indian Supreme Court, he wrote: “If respect for the judiciary is to be regarded as integral to the maintenance of the rule of law, as I believe it should be, such respect will be spontaneous, enduring and real to the degree that it is earned, rather than to the extent that it is commanded.”228 A year later the Court addressed a complaint against the broadcast of an interview with a Holocaust denier. The complaint claimed the broadcast was likely to strain relations between Jews and other communities, in violation of Broadcast Authority regulations, which barred the broadcast of “material . . . likely to prejudice . . . relations between sections of the population.”229 While it was being processed, the Islamic Unity Convention sought an order declaring that the rules were unconstitutional.
South Africa protects freedom of expression but does not include “propaganda for war . . . incitement of imminent [violence] or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
The Court decided the case on the law without reference to the facts in the original complaint.230 On the one hand, the Court described freedom of expression as part of “a ‘web of mutually supporting rights,’” including the rights to religion, belief, opinion, dignity, association, assembly, and vote as well as the right to stand for public office; these rights “implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial.”231 Freedom of expression “lies at the heart of a democracy,” is “a guarantor of democracy,” recognizes “the moral agency of individuals,” and “facilitat[es] . . . the search for truth.”232
Reemphasizing “our recent past of thought control, censorship, and enforced conformity to governmental theories,” the Court declared that “the open market-place of ideas is all the more important to us in [South Africa] because our democracy is not yet firmly established and must feel its way.”233
The Court was not willing to follow the U.S. example because “[t]he pluralism and broadmindedness that is central to an open and democratic society can . . . be undermined by speech which seriously threatens democratic pluralism itself.” Therefore “open and democratic societies permit reasonable proscription of activity and expression that pose a real and substantial threat to . . . [the] values [of dignity, equality, human rights and freedoms] and to the constitutional order itself.” Many countries limit speech to protect the fairness of trials and elections.234
The Court’s endorsement of protecting democracy by restricting expression assumed both the discernment and good faith of the deciding body. Ultimately the Court decided the regulation was both vague and overly broad, avoiding a choice on free speech grounds.235
One distinguished commentator described the conception of democracy embodied in the South African Constitution as “deep” rather than “shallow.” Their concept goes well beyond elections, to participatory, multiparty, representative, and constitutional democracy, with a set of values emphasizing “human dignity, equality, and freedom.”236 It has been part of a recent wave of democratization—with “a common set of political institutions, including universal adult suffrage, regular elections, the right to free political participation and freedom of the press”—in which universal adult suffrage is “a necessary precondition for democracy.”237
The European Court of Human Rights (ECtHR) takes cases under the European Convention of Human Rights, both products of the 1950 Convention of Rome. The Court opened in 1959 and sits in Strasbourg, France. With jurisdiction now over forty-seven member nations, it has become a very important court and window on developments throughout Europe.
The 1648 Treaty of Westphalia accepted state control over religious affiliation and Europeans continue to give states a large role in their lives. Nazi and Communist totalitarianism devastated Europe and caused Americans to fear state power; but Europeans blamed the Nazi and Bolshevik parties and paramilitaries for empowering Hitler and Stalin. Hence, Europe remains friendlier to government authority, and European agreements limit personal rights by what is necessary to protect a free and democratic order.238 The ECtHR supports some preventive measures against political parties “deemed dangerous,” because “political parties have more power over the people.”239
As the court explained in a 1995 German case, it “takes into account Germany’s experience” and Germany’s wish “to avoid a repetition . . . by founding its new State on the idea that it should be a ‘democracy capable of defending itself.’”240 To Europeans, protecting democracy often meant defending it from its opponents or from issues that could tear apart democratic societies, like the former Yugoslavia. “These circumstances understandably lent extra weight to this underlying notion and to the corresponding duty of political loyalty imposed on civil servants.”241 That background creates a duality in European democratic thought: a full understanding of what democracy needs and a felt need to play with fire.
European courts emphasize that human rights law is an aspect of democracy.242 Protocol 1 of the European Convention of Human Rights binds the members to “hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” The ECtHR held that “the opinion of the people” requires universal suffrage and participation. International covenants emphasize universality—“every” citizen has the right to vote, and suffrage is “universal.”243 What people have equally, they have universally, and vice versa. Equality plays an important part in the Court’s decisions in many areas, from the settlement of land claims244 to the right to vote245 and freedom of religion.246
The Court’s commitment to equal and universal adult suffrage was tested in Hirst v. The United Kingdom,247 which was decided twelve to five and dealt with prisoners’ rights to vote. The ban categorically barred voting by prisoners.248 The judgment related to the indiscriminate ban on voting by prisoners, not individual justice. The applicant, John Hirst, was not a sympathetic individual.249 Latvia intervened, lest a judgment affect it and other countries that barred all convicted prisoners from voting.250 The Court summarized its survey of the parties to the European Convention on Human Rights: “a minority of Contracting States” imposed “a blanket restriction on the right of convicted prisoners to vote” or made “no provision allowing prisoners to vote.”251 It quickly added that the Convention, and therefore the sufficiency of the reasons behind the restriction, governed, not the numbers.252
The ECtHR examined the logic and experience of courts outside its jurisdiction which had similar democratic language. The Court described the 2002 Sauvé decision of the Canadian Supreme Court, which found its voting ban undermined the objectives of the policy. In the words of the ECtHR, the Canadian court had found that it “undermined respect for the law and democracy.” Morally, according to the Supreme Court of Canada, “[t]he legitimacy of the law and the obligation to obey the law flowed directly from the right of every citizen to vote.” Remedially, “[t]o deny prisoners the right to vote was to lose an important means of teaching them democratic values and social responsibility.” Crucially, it “ran counter to democratic principles of inclusiveness, equality, and citizen participation.” Thus, it “was inconsistent with the respect for the dignity of every person that lay at the heart of Canadian democracy and the Charter.”253
The ECtHR agreed that the Canadian denial of voting rights had not been appropriate punishment, but “arbitrary” insofar as “it was not tailored to the acts and circumstances of the individual offender” so that it “bore little relation to the offender’s particular crime.”254 And the Canadian ban had served no “valid criminal-law purpose” because “disenfranchisement [neither] deterred crime [n]or rehabilitated criminals.”255
Turning to South Africa, the ECtHR discussed the first of the two major cases involving voting rights in South Africa, August v. Electoral Commission. The second case, NICRO (discussed in the previous section), was heard at nearly the same time as Hirst in Strasbourg. The court noted the significance the Constitutional Court of South Africa attached to the right to vote: “Quite literally, it says that everybody counts.”256 After apartheid, that was a significant achievement. The court noted that the South African Court “recognised that limitations might be imposed upon the exercise of fundamental rights, provided they were, inter alia, reasonable and justifiable.”257
Then the ECtHR undertook its own analysis. It “highlight[ed] the importance of democratic principles underlying the interpretation and application of the Convention.”258 Those principles mean that “the right to vote is not a privilege”; instead “the presumption in a democratic State must be in favour of inclusion. . . . Universal suffrage has become the basic principle” of democracy.259
Differences “in historical development, cultural diversity and political thought within Europe” limit the power of an international treaty court.260 But the European Convention of Human Rights bans limits on election and voting rights that “impair their very essence and deprive them of their effectiveness.” It also requires any limitations “imposed [be] in pursuit of a legitimate aim; and that the means employed are not disproportionate.”261 The criterion for the Convention’s guarantee of free elections is “an electoral procedure aimed at identifying the will of the people through universal suffrage.”262 The Convention warned: “Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature.”263
Prisoners still have rights; they “continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty.”264 The “Act remains a blunt instrument,” disproportionate to any valid purpose. It “imposes a blanket restriction on all convicted prisoners in prison” and “applies automatically . . . irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances.”265 That indiscriminate ban on voting could not be well tailored for deterrence, retribution, or other significant purposes. Therefore, the Court concluded that “[s]uch a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin” for national choice.266
Universal inclusion also led the Court to describe “pluralist democracy” as “the only political system . . . compatible with the Convention.”267 In Germany and South Africa pluralist democracy implied inclusion of opposition and most minor parties both in the election process and on legislative committees, a common result of systems of proportional representation.268
Tănase v. Moldova269 dealt with Moldova’s exclusion of those with dual nationality from the national legislature unless they renounced their other nationality. In a section of the Romanian-Moldovan border, many had dual citizenship. The ECtHR held they were improperly excluded “from participating in the political life of the country,” with a “disproportionate effect” on opposition parties.270
Loyalty to the nation can be required of members of parliament, consisting of “respect for the country’s Constitution, laws, institutions, independence and territorial integrity.”271 But, the court held, “there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned.” That is true even where Moldovan members of Parliament wish to pursue an agenda which some believe incompatible with “the principles and structures of the [existing] Moldovan State.” Disagreement on important issues, including “the way a State is currently organised” is “A fundamental aspect of democracy . . . provided that they do not harm democracy itself.”272 National security can be adequately protected, without restricting political rights, by “[s]anctions for illegal conduct or conduct which threatens national interests . . . [and] security clearance for access to confidential documents.”273
Yumak & Sadak v. Turkey addressed the threshold percentage for party representation in the legislature.274 The ECtHR began with the basic standards of Protocol No. 1 to the Convention which “prescribe[s] ‘free’ elections held at ‘reasonable intervals’ ‘by secret ballot’ and ‘under conditions which will ensure the free expression of the opinion of the people.’”275 In turn “the will of the people” depends on “universal suffrage” and “[a]ny departure from the principle of universal suffrage risks undermining the democratic validity of the legislature.”276 The Court “emphasized” that the state is the “ultimate guarantor of pluralism” and is “obligat[ed] to adopt positive measures to ‘organize’ democratic elections ‘under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’”277
Parties are crucial. “Expression of the opinion of the people is inconceivable without the assistance of a plurality of political parties representing the currents of opinion flowing through a country’s population.”278 Their “contribution . . . political debate” is “irreplaceable” in part because they are “an instrument which citizens can use to participate in electoral debate and a tribune through which they can express their support for various political programmes.”279 To ascertain “the free expression of the people” it is crucial “to maintain the integrity and effectiveness of an electoral procedure.”280 To do that, “the Court has established that [the Convention as amended] guarantees individual rights, including the right to vote and the right to stand for election.”281 Nevertheless the Court agreed that Turkey, with a system of proportional representation, could deny seats in the national legislature to parties with less than 10 percent. The Court ruled that, in “context,” and with “correctives and other guarantees which have limited its effects in practice,” the threshold has not impaired the “essence” of those rights.282
Aware of the limits of its power, the ECtHR sometimes accepts results that are inconsistent with the Convention and its own judgments, particularly toward recent members whose political systems are more distant from Convention ideals than the original members. Perhaps for those reasons, and in deference to the sovereign states that submitted to its jurisdiction, the Court noted that rights are “not absolute”283 and legitimate aims are “implied limitations.”284 The “[c]ontracting States must be given a wide margin of appreciation” for aims that are compatible with the objectives of the Convention, and for measures that are not arbitrary, disproportional, and do not impair the “essence” or “effectiveness” of the right or interfere with free expression of opinion or “thwart the free expression of the people in the choice of the legislature.”285 The Convention as amended only prescribes “‘free’ elections held at ‘reasonable intervals’ ‘by secret ballot’ and ‘under conditions which will ensure the free expression of the opinion of the people.’”286
According to the ECtHR, “[F]air representation of the parties in parliament,” “avoid[ing] a fragmentation of the party system and encourage[ing] the formation of a governing majority of one party in parliament” are legitimate competing objectives.287 Such “limitations” can easily undo the principle of fair representation. But the Court explained that “[a] low threshold excludes only very small groupings, which makes it more difficult to form stable majorities, whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation.”288
The ECtHR also found that “no electoral system can eliminate ‘wasted votes.’”289 Independents had succeeded in Turkey with party support.290 The proportional system generally allows for the free expression of the people’s views even when a high threshold disadvantages small parties.291 And Turkey “had the legitimate aim of avoiding excessive and debilitating parliamentary fragmentation and thus of strengthening governmental stability.”292 Thus the Court ultimately blessed the 10 percent rule in Turkey while stating both strict standards and potentially loose excuses.
Juxtaposed with the ECtHR’s prodemocracy rhetoric is its flirtation with censorship of political parties. The great threats to European democracy came from religious, national, and ideological flames and bigotry that ravaged the population over several centuries. Those threats led to limits on speech, especially by political parties—limits that could protect or squelch democracy.
In 1998, the European Commission for Democracy through Law, known as the ECD or Venice Commission, reported a survey of the treatment of political parties by member nations and several with observer status.293 Of the forty countries that responded, six had banned or dissolved a party since World War II. The report concluded that sanctions against parties were rare and unnecessary since individuals could be punished. If it did seem necessary, courts should judge it according to the principle of proportionality. In 1999, the Venice Commission adopted guidelines, which found it may be justifiable to prohibit or dissolve “parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order.”294 The essence of that guideline was retained in a 2009 document on political parties.295 Thus the European position has converged on two conclusions: prohibition or dissolution of a party is rarely necessary, and only violence or advocacy of violence justifies such measure. Nevertheless several countries have challenged that position.
The ECtHR repeatedly points to “the free expression of the opinion of the people” as its standard for judging electoral rules and practices.296 Eliminating a party conflicts with principles of free speech, yet the court treats both the principle and the restrictions as necessary for a democratic society.297 Whether the Court is true to the Hirst principles depends on what leads the Court to accept local practices that vary from universality. One scholar at a Turkish university has described the Court as protecting prominority but not antisecular parties, and protecting separatist parties unless they had proven links to terrorist organizations.298
For example, the ECtHR protected a party seeking extensive regional autonomy against dissolution by the Bulgarian Constitutional Court and had a lengthy dispute with Turkey about the Kurds’ ambitions.299 Turkey dissolved the United Communist Party (TBKP) for espousing the Kurdish cause. By law there was only one “Turkish nation.”300 Turks believed the difference between Kurds and Turks was a product of political agitation. By distinguishing “between the Kurdish and Turkish nations, the TBKP had revealed its intention of working to achieve the creation of minorities which . . . [threatened Turkey’s] territorial integrity.” The Court noted that Turkey’s Constitution proscribed both self-determination and regional autonomy.”301
Issacharoff argues that Turkey’s dissolution of earlier Islamic parties brought the Islamists into the mainstream of Turkish politics.302 Turkey made changes to its statutes but continues to prohibit parties. The Human Rights Association (İnsan Haklari Derneği) catalogued an extensive list of bans and dissolutions through 2008.303
The ECtHR responded that “political parties are . . . essential to the proper functioning of democracy.”304 They do not lose protection under the convention “simply because . . . national authorities” believe their democratically pursued objectives “undermin[e] the constitutional structures of the State.”305 Instead, the possibility “of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome” is a principal characteristic of democracy. The Court held: “[T]here can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned.”306 The ECtHR found Convention guarantees violated in “seven more cases where the applicant parties had discussed possible solutions to Turkey’s Kurdish issue at the domestic level and were therefore dissolved by the Turkish Constitutional Court.”307 The ECtHR defended parties that raised questions of “autonomy, federalism, self-determination . . . [and the treatment] of minority culture and language.”308
The ECtHR has little sympathy for parties that attack secularism or seek to promote applications of Islamic law. Battles over secularism and Islam reached the Court in Refah Partisi v. Turkey,309 on dissolving the party, and Leyla Şahin v. Turkey,310 on a headscarf ban.
The ECtHR accepted Turkey’s dissolution of Refah Partisi, known in English as the Welfare Party, the largest member of a center-right coalition ruling Turkey when the court ordered dissolution. Among those banned from politics was Necmettin Erbakan who had been prime minister in the mid-1990s.
The Court treated the Refah Partisi as attempting to replace democratic government with theocracy for some areas covered by law; it treated theocracy as inconsistent with democracy, and the Refah Partisi as seeking to introduce theocracy to Turkey.311 The Court held that introducing religious courts that bind individuals according to their faiths would “do away with the State’s role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of the various beliefs and religions in a democratic society. Instead it would oblige individuals to obey, not rules laid down by the State in the exercise of its above-mentioned functions, but static rules of law imposed by the religion concerned.”312
There are at least three different ways to consider the compatibility of Shari’ah with democracy. One is whether Shari’ah condemns democracy or denies that it is proper for Muslims to adopt a democratic regime. There has been a lively debate about the compatibility of Shari’ah with democratic authority. Some scholars point out that “[e]lections (in their old form) are mentioned in the Qur’an itself,” suggesting therefore that Shari’ah is not in conflict with democracy.313
The compatibility of Shari’ah and democracy can also be addressed regarding the means of making binding decisions. The authority of those who interpret Shari’ah differs from elected political authority. The court’s discussion is somewhat unclear, but it focused on process, suggesting that it was treating Shari’ah as a source of binding authority rather than whether Shari’ah is generally hostile to an electoral system.
Finally, the compatibility of Shari’ah and democracy may reflect particular rules, which the Court believes Shari’ah requires. This includes its treatment of the role of women and their rights in society. Many interpreters of Shari’ah deny that restrictions on the rights of women are proper interpretations of the sacred texts. So one must distinguish between Shari’ah as tradition in given locations and Shari’ah as the meaning of the sacred texts. Conflict with rules of human rights may not be integral to Shari’ah but traditional interpretations of Shari’ah may be linked with those restrictions in certain societies. This appears to have been part of the Court’s reasoning although its language was both more general and less clear.
The ECtHR concluded that Islamic law, or “sharia is incompatible with the fundamental principles of democracy.”314 The Grand Chamber of the ECtHR (similar to an American appellate court sitting en banc), quoted the chamber opinion (similar to a panel opinion) finding that Shari’ah law is static: “the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable.”315
Despite the age of the sacred texts, the claim that Shari’ah is “static” is in tension with actual practice, since there is no grand chamber that interprets Shari’ah. Shari’ah law is promulgated by experts versed in the texts and traditions more in the manner of the common law by judges, individually, looking at the work of others, which does not produce a static body of religious law.316
Putting aside the question of the accuracy of its understanding of Shari’ah, the Court, still quoting the chamber opinion, explained why it understood Shari’ah as incompatible with democracy. First, regarding process, “[p]rinciples such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it.”317 And substantively, “[i]t is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime . . . which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.”318 Those aspects of the party’s proposals were not limited to Shari’ah but would restore practices under the Ottoman Empire, and similar practices in much of Europe, giving religious groups authority over their own faithful and the social practices they enforced.319 Thus, the Court saw a deeper tension with elevating religious law to obligatory status and the doctrinal implications of the Court are clearly broader than, although occasioned by, disputes involving Islam.
The harsh reaction in those cases to Islamic dress or to parties which advocate Islamic views on religion or culture, are in tension with European practices acceptable to the Court. Many European institutions and courts are relatively tolerant of government entanglement with religion. Pluralism, in both speech and entangled institutions, is valued by much of the European community, but these cases treat the claims of Muslims as outside the perimeter of European pluralism.
The dissolution of political parties also reached the ECtHR where parties were associated with violence. The Court calls for legal, necessary, and proportional responses.320 For example, a party representing separatist Basques in Spain was dissolved with the Court’s blessing based on a finding of links to Basque terrorists.321
Concerns about hate, violence, loyalty, and the Nazi past also play significant roles in speech cases. Concerns about loyalty to the free democratic constitutional system “are certainly relevant,” but the bare fact of membership in the German Communist Party was not “sufficient to establish convincingly that it was necessary in a democratic society to dismiss” a teacher.322
Sensitive about anything that might glorify the Nazis, France started a transatlantic legal battle over its attempt to block access to an internationally available auction of Nazi memorabilia on AOL.com.323 In another case, the ECtHR wrote that efforts to rehabilitate the memory of Marshall Petain who had been convicted for working with Hitler remain “very painful in the collective memory, given the difficulties . . . in determining . . . whether isolated individuals or entire institutions . . . [were responsible] for the policy of collaboration with Nazi Germany.”324 Nevertheless, the Court held that free speech applies to “‘information’ or ‘ideas’ . . . that offend, shock or disturb.”325 Exposure to such messages “forms part of the efforts that every country must make to debate its own history openly and dispassionately.”326 Making the connection to democracy, it added: “Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’”327
A 1999 judgment arose out of competing libel suits between researchers and police, over studies by academics and the Ministry of Justice alleging significant police brutality in Bergen, Norway, and a competing investigation initiated by the prosecutor general which reached the opposite conclusion and resulted in a prosecution and conviction of some accusing witnesses that was later overturned. The ECtHR agreed with the Norwegian courts that police claims that the researchers had deliberately lied was defamatory. It otherwise reversed, finding factual support for police claims at the time statements were made which were within “limits of permissible criticism” in a democratic society in the context of an angry public debate.
Judges Kūris, Türmen, Strážnická, and Greve dissented and would have found additional statements of the police against the researchers actionably defamatory. They emphasized the “vital need for every society to exercise strict supervision over all use of force in the name of society.” Their point was that critics of official abuse need to be protected against groundless charges. They referred to the 1984 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which specifically protects the right to complain. In the dispute over brutality in Bergen, the Court held, the “purpose of these attacks [by the officers] was to suppress the debate on this issue.” The government, however, has “a monopoly over force . . . [which] also entails the danger of force being abused to the detriment of the very values it is meant to uphold.” Therefore “abuse of force by officials is not just one of many issues of broad general interest, it is . . . a matter of primary concern in any society.” Keeping authorities in check is particularly important for a democracy. And the ability to hold a state’s use of force in check requires protecting those who raise the alarm. The European Commission for Democracy Through Law observed that in “numerous states . . . [there is a] general ban on the creation of para‑military formations.”328
In Ceylan v. Turkey, a union president was indicted for inciting “hatred and hostility” by protesting the treatment of Kurds. The ECtHR held that “Mr Ceylan’s conviction was . . . not ‘necessary in a democratic society’” and therefore violated the Convention; “there is little scope . . . for restrictions on political speech or on debate on matters of public interest” especially with regard to “criticism . . . [of] government.” This is essential. “In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion.” The power of government “makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.” Only special circumstances, such as “where . . . remarks incite to violence,” could justify curtailment and then only if government reacts “appropriately and without excess.”329 The Court sustained the conviction of a pro-PKK speaker for supporting some forms of violence. But concerns about violence did not justify shutting down discussion of the treatment of a minority, including the Kurds.
Some writers have suggested that prohibiting speech that encourages hate or division will be misused to exclude minority complaints. The ECtHR cases suggest that happens often, as in the Turkish indictment and conviction of Ceylon for attempting to air Kurdish grievances. This happens even though the Court distinguishes hate speech from complaints and resists blaming minorities for airing their grievances.
On the other hand, the Court treats freedom of religion as inherent in democratic society. When Bulgaria’s government chose religious leaders, the Court responded that “pluralism [is] indissociable from a democratic society,” but could not exist if the government could select who runs religious institutions and such a power would therefore weaken democracy.330
With ECtHR support, European nations restrain groups from taking positions that might upset religious peace,331 even if only to protect national majorities.332 In majority Christian parts of Europe that policy creates anti-Islamic discrimination, in which their critiques and their religious expression or wearing of religious garments are suppressed in favor of religious peace,333 and their feelings are unprotected in favor of others’ free speech.334 On those and other issues, individual or minority group critiques or complaints are often lost in the process.335
The Court supported the secularists position against Muslim religious garb in the case of Leyla Şahin v. Turkey, holding that Turkey could bar religious clothing, including Muslim headscarves in universities.336 The secularist policy dates to the 1923 establishment of the Republic of Turkey. More recently, there has been a lengthy debate within Turkey about the role of Islam in the state and the freedom of Muslims to wear Islamic dress.337 The Court agreed that the regulation interfered with religious freedom. Therefore it addressed whether the limitation was “necessary in a democratic society” under the Convention. That issue required a balance to protect the rights of all: “In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.”338 The headscarf ban prevented “certain fundamentalist religious movements from exerting pressure on students who did not practise their religion or who belonged to another religion.”339 Dress would disclose belief, making religious garb a flash point. Turkey could be trying to diffuse tensions on the street; the ban “served to protect the individual not only against arbitrary interference by the State but from external pressure from extremist movements.”340 The Court also worried about “the proselytizing effect” of religious garb.341
The Court noted no consistent approach to religious garb among the member nations.342 The same restriction may have different meanings in France, a majority Christian nation, and Turkey, a majority Muslim state. Turkey’s historic commitment to secularism could have been to protect minorities, because of hostility toward religion, due to a judgment that modern states work better when religious forces are constrained, or to facilitate change in gender relations (by doing away with such symbols as the headscarf, for example). Each of those reasons has secular and religious components. Religion sometimes has to give way to important secular purposes.343 For the Turkish court, secularism prevented government from showing a preference for one faith, guiding government as “impartial arbiter,” and protecting freedom of religion and conscience.344
The ECtHR concluded that the headscarf regulations were not directed against Islam, but for “the legitimate aim of protecting order and the rights and freedoms of others and . . . to preserve the secular nature of educational institutions.”345 The history and contemporary situation of Turkey appeared to require that result.346 And for the ECtHR, secularism may be “the guarantor of democratic values . . . the meeting point of liberty and equality.”347 It is “consistent with the values underpinning the Convention.” Indeed, it “may be considered necessary to protect the democratic system in Turkey.”348
According to the ECtHR, pluralism is “indissociable from a democratic society” and depends on freedom of religion.349 Protecting everyone, however, requires reconciling the freedom of each with the interests of others to “ensure that everyone’s beliefs are respected.”350 Without “eliminating pluralism” in order to “remove . . . tension,” the task is to “to ensure that the competing groups tolerate each other.”351
Democracy does not imply that the “majority must always prevail.” A balance is needed to ensure “the fair and proper treatment of . . . minorities” and avoid “any abuse of a dominant position.”352 Conflicts among the “‘rights and freedoms’ . . . guaranteed by the Convention or its Protocols” may require that the state restrict one in favor of the other. For the Court, “this constant search for a balance between the fundamental rights of each individual . . . constitutes the foundation of a ‘democratic society.’”353 And a “margin of appreciation” or deference to the member states is necessary “to protect the rights and freedoms of others, to preserve public order, and to secure civil peace and true religious pluralism, which is vital to the survival of a democratic society.”354
The dissent by Judge Tulkens also expressed support for the principle of secularism.355 She argued, however, that “[o]nly indisputable facts and reasons whose legitimacy is beyond doubt—not mere worries or fears” justify infringing on religious freedom. In her assessment they were not needed.356
The subsequent erosion of Turkish secularism suggests that repression can bring about the consequences it was supposed to prevent. Repression may also have blocked consideration of Kurdish complaints within Turkish politics while simultaneously stimulating Kurdish nationalism in Turkey, Iraq, and other countries in the region.
The rule of law itself is basic for a democratic society.357 In Hasan and Chaush v. Bulgaria, the ECtHR described the government’s intervention in religious affairs as standardless, and it therefore violated the rule of law, a fundamental principle “inherent in all Articles of the Convention,” as well as violating religious freedom.358
The rule of law was a major issue in Segerstedt-Wiberg v. Sweden.359 For the ECtHR, and European law in general, the rule of law is not limited to following whatever the legislature or other lawmaking bodies may have proscribed; “settled case-law ‘in accordance with the law’ not only requires the impugned measure to have some basis in domestic law, but also refers to the quality of the law in question.”360 To be “compatible with the rule of law . . . it must provide a measure of legal protection against arbitrary interference by public authorities.”361 The case involved intelligence files and the Court commented that the “risks of arbitrariness are evident” where powers are exercised in secret. The Court explained: “Since the implementation in practice of measures of secret surveillance is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power.”362 The law must provide “the individual adequate protection against arbitrary interference.”363 The “law must indicate the scope . . . and the manner of its exercise with sufficient clarity” to protect the individual.364 The Court held it did.365 It nevertheless held that storage of some of the information interfered with their right to private life under the Convention.366 The Court explained that, while intelligence services have a legitimate role, “powers of secret surveillance of citizens are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions.367
As a former president of the ECtHR points out, the covenant and the Court also address unlawful detention and cruel treatment in prison.368 Officials do not have unlimited power to arrest people for questioning.369 The object is security within “a substantial measure of procedural justice.”370
Combating terrorism creates “difficulties” for democracy.371 Following 9/11, the United States argued that the United Nations and international agreements authorized and required executive action to pursue terrorists without the usual procedural protections. That met resistance from the European Court of Justice.372 Luzius Wildhaber, then president of the ECtHR, commented that no derogation is possible from absolute guarantees like the prohibition of torture or inhuman or degrading treatment.373 He quoted former Israeli Chief Justice Aharon Barak that even the “ticking time bomb” does not justify torture and that democracies still have the “upper hand” because the rule of law and the protection of liberty strengthen democracies.374 He also quoted former Indian Chief Judge Anand: “State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to ‘terrorism.’”375 Yet, effective measures to counter organized terrorism will not be found disproportional.376
The decisions of these courts interpret democracy as a set of principles and as cause and effect—what causes democracy to survive or collapse. They stress universal suffrage and equality but take little account of integration and protect less expression than our own courts. Those conclusions of these foreign courts can be either warning or encouraging.
How should this be evaluated? One could conclude that competing traditions offer little reason to adopt any foreign ideas. People like different things leading to a draw. There are, however, other ways of thinking about the handling of democracy abroad.
Competent courts and intelligent people, interpreting concepts found in our own constitutional traditions, reached conclusions about the logic of democracy—what it means and requires. Though the Declaration of Independence has not been treated as controlling authority, “a decent respect to the opinions of mankind requires” that we consider their insights.
One can read these materials as a test. As much as the U.S. Supreme Court interprets the Constitution based on its federal structure and separated powers, one might also read it based on its democratic structure. The record of these foreign courts then tells us something about the ways democracy is likely to be understood. It is hardly conclusive. We have selected examples from countries that were demonstrably influenced by American ideals, whether directly, through British influence, or because of shared reactions to Nazi terror and World War II. Even a statistical sample would be only a prediction that our courts would behave like other courts, not an argument for it. Still, foreign judgments provide some idea about whether interpreting the U.S. Constitution in compliance with the spirit of its structurally democratic provisions is a good idea.
Foreign constitutional courts inferred the importance of universal suffrage and participation, competition, equality, and dispersion of resources from democracy. But they also accepted parallel worlds in schools, although rejecting them in communities, and failed to protect the voice of dissenters in states like Turkey. I would be a very selective cheerleader for their conclusions.
However, if we ask what difference the courts made, the results look somewhat better. Lawyers and judges often describe courts as counter-majoritarian because they sometimes reject what the people or their representatives have voted for. Cases in which courts were most deferential to government made the least difference; they merely confirmed what the political system did. Where the courts made a difference was in their instinct to protect everyone’s participation in the democratic process and the rights of minorities; that suggests a prodemocratic difference.377
Their interpretation of their own constitutions and the European Convention on Human Rights also led foreign courts to address the consequences to democracy—cause and effect, not merely definition. The question about the consequences of these differing interpretations for democracy is also addressed by political scientists. While politicians have steered their states by their hunches, political scientists have investigated causal relationships with increasingly robust data and methods. Their work tests the ideals explored both in the United States and abroad since the ratification of the U.S. Constitution. The legal connections made by these jurists can be rejected at any moment. But the empirical consequences studied by political scientists are less pliable.