Ching-Lun (Al) Liu
Abstract
Coined by Karl Löwenstein, militant democracy refers to the notion of a democracy being authorised to pre-emptively restrict the exercise of certain civil liberties in order to protect the ‘free and liberal democratic order’. Often taken in forms of party proscription and restraints on freedom of speech, the concept was first incorporated in the legal system of post-war Germany. Having democratised fairly recently, militant democracy is similarly pertinent to Taiwan for its complex relations with the People’s Republic of China. The latter’s rapport with certain political parties in Taiwan as well as the attempts on information warfare to influence Taiwan’s domestic politics have been well-documented through the years.
In this first article, the theoretical framework is analysed, along with the controversies surrounding the concept of militant democracy as well as its practices. The following post then examines the legal realities of Taiwan, namely the design of the Constitution which potentially allows for the implementation of militant mechanisms (party proscription) and the legal plausibility of regulating fake news. The seminal research question addresses the feasibility of such militant instruments being enforced in Taiwan. It ultimately finds that an approach akin to that of Germany may run into obstacles related to the banning of political parties, along with the restriction on the right to freedom of expression.
Article I
Militant Democracy: Theory and Practice
Introduction
‘Militant democracy’, a term coined by political scientist Karl Löwenstein in 1937, refers to a form of constitutional democracy authorised to protect civil and political freedom by pre-emptively restricting the exercise of such freedoms.[1] However, this protection is also criticised for its potential for infringing on the right to freedom of expression. The backdrop to the emergence of this concept was a response to the wave of fascism storming in Europe in the 1930s, particularly in Germany and Italy. Designed to ‘fight fire with fire’, the notion of militant democracy was first incorporated into the Basic Law of West Germany (Grundgesetz or GG) in the aftermath of the Second World War.[2]
Initially placing focus on the ban/dissolution of hostile political parties in the domestic context, the advancement of internet and technology have given this threat against the ‘liberal democratic basic order’ and freedom of speech a transnational aspect. This may refer to an external menace, be it terrorism, the spread of misinformation and disinformation, or election manipulation sponsored by foreign powers that have had significant detrimental impact in domestic politics.
The response in specific jurisdictions has been widespread and increasingly prescriptive. The German Network Enforcement Act or Netzdurchsetzungsgesetz (NetzDG) of 2017 being the primary example.[3] The interference with the right to freedom of expression has sparked numerous contentions. Sceptics cite the possibility of abuse and effectively ‘doing the work of the enemies of democracy for them’, and the inherent arbitrariness in defining what constitutes an ‘enemy’ of democracy.[4]
Trapped in the plight of statehood, Taiwan is a young democracy and is particularly vulnerable to such external hazard. Such hazards are typified in the People’s Republic of China’s influence on the democratic practices in Taiwan. Beijing’s alleged meddling in the municipal elections/referenda in 2018 has been widely and expressly recognised as aggressive.[5] Of China’s varied manoeuvres, this post addresses the indirect sponsorship of pro-unification parties such as the Chinese Unity Promotion Party (CUPP), and China’s mis-/disinformation campaigns.[6] Examining these experiences ultimately provides a useful lens into the practices of militant democracy.
- The ‘paradox of democracy’ – the problem militant democracy is meant to address and its instruments
Dubbed “the paradox of democracy”, the design of a liberal democracy provides its enemies with the means to fight against it.[7] Militant democracy was constructed to counter such democratic backsliding initially within the context of fascism. The seminal idea is to ‘nip fundamental opposition to democracy in the bud’.[8] The following section addresses this issue by following Jan-Werner Müller’s line of thought. This bifurcates the issue into the two main instruments militant democracy often employs – party proscription and the restriction on the right to freedom of expression. It uses as an example the account of Germany, a liberal democracy commonly regarded as the prototype of militant democracy.
1.1 The banning of political parties
Given its past of lethal populism and the remarkable success story of post-war nation-building, Germany arguably offers the most fitting legal infrastructure for analysis on militant democracy in action.[9]
The traumatic experience of National-Socialism made the Federal Republic of Germany particularly sensitive to the in-built risk of extremist political ideas succeeding in its competition and subsequently undermining the democracy from within. The drafting of GG, therefore, incorporated various safeguards in order to protect this conception of ‘substantive democracy’, which contends that democracy must not stand idly when facing an extremist threat.[10]
The most central mechanism in the repertoire of safeguards laid out in the GG is perhaps article 21(2), which confers the FCC the duty to ban associations and political parties that ‘seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany’.[11] As of 2019, there have been two cases of political parties being proscribed by the FCC in post-war Germany. Both proscriptions took place in the 1950s, a period of time in which West Germany was ‘a still fragile democracy wanted to demonstrate its strength’.[12]
Subsequently, as West Germany’s democracy became an exemplar in the following decades, the confidence in the German democratic institutions solidified. The proscription provision had not been invoked since the disband of KPD up until 2001, when the Bundestag and the Bundesrat launched a joint petition to ban a right-wing extremist party, Nationaldemokratische Partei Deutschlands (NPD).[13] NPD’s constitutionality was once again challenged in 2015 (commonly referred to as NPD II), with the FCC deciding, on a substantive level, against proscribing the party at the beginning of 2017.[14] The reasoning was based on the grounds that, while the NPD’s ambition to establish an ‘ethnic nation-state’ is undoubtedly anti-constitutional (verfassungsfeindlich), the party, not having any representative in the federal parliament and having only one Member in the European Parliament, did not have the capacity to pose a notable threat to Germany’s democratic institutions, therefore was not unconstitutional (verfassungswidrig).[15] The Court asserted that it must be at least possible that a party’s actions can threaten the ‘free democratic basic order’ to invoke the ban.
This introduction of ‘potentiality’ (Potentialität) marked a dramatic shift in the Court’s interpretation with regard to the notion of ‘seeking’, which, along with the subsequent constitutional amendments, corresponds with the notion Müller proclaimed to be hard and soft militant democracy: the outright ban of SRP and KPD would be a mechanism of a hard militant democracy, and mechanisms leaving room for judgment concerning the likelihood of political radicalisation and moderation would be called that of a soft militant democracy.[16] This concept is integral to the analysis of the mirroring situation in Taiwan, where constitutional ban of political parties is also included in its constitution.
1.2 The restrictions on the freedom of expression
Restraints on the right to freedom of expression are commonly observed in various international human rights treaties. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), for example, sets out limitations to the exercise of the right to freedom of expression in paragraph 3. This prescribes that the exercise of freedom of expression may be restricted as long as the restrictions themselves are ‘provided by law and are necessary’.[17] The provision further lays out the grounds on which freedom of expression could be restricted: ‘for the respect of the rights or reputations of others’ and ‘for the protection of national security or of public order, or of public health or morals’. Article 10 of the European Convention of Human Rights also contains limitations akin to those of ICCPR (‘prescribed by law’ and ‘necessary in a democratic society) in paragraph 2, and similar provisions exist in numerous democracies around the world. Even in the United States, where the Constitution does not limit freedom of speech per se, the extensive case law has developed barriers on the exercise of First Amendment right, such as the prohibition of defamation and obscenity.[18] European countries, in particular, tend to set legal restraints on freedom of speech regarding the war crimes Nazi Germany committed during the war.[19]
Within the Euro-American debate on hate speech regulations, the subject most relevant to the purpose of this paper is the restriction on the political expressions attempting to subvert democratic institutions.[20] In addition, beyond the traditional contention, the technological development represents a renewed challenge for democracies today: that of the dissemination of subversive misinformation and disinformation in cyberspace.[21]
While severe restraint such as prohibiting criticisms the Head of State[22] certainly would not be accepted by liberal democracies today, it would be difficult to deny that the internet and social media have provided subversive speech, hate speech, and mis-/disinformation campaigns with a significantly more fast-paced and powerful platform.[23] Naturally, evidence regarding the actual impacts of the internet on the rise of populism witnessed in recent years is a topic in itself requiring thorough and compact empirical research; yet there is no denying that liberal democratic governments are seeking solutions to this issue. Some have supported the measure of setting roadblocks on the funding of websites that spread subversive speech or fake news, but the weakness to this measure is that, as research has shown, propaganda machine and ‘trolling’ are not necessarily motivated by financial motives, therefore the effect would not necessarily be optimal. Some have faith in the social media conglomerates’ self-regulation on mitigation and moderation of the content shared on their platforms, but their commitment has been dubious to say the least.[24] Counter-solution via educational means, such as the fortification of media literacy, is perhaps the least controversial, but like the other fields of education, media literacy faces the issues of time consumption, the uneven distribution of educational resources, the limitation of its reach, and the questionable efficacy.[25] The shortcomings of each of these proposals have given liberal democracies incentives to draft concrete laws to counter fake news. Or better put, internet speech in general.[26]
Various governments have responded to the peril of mis-/disinformation and hate message campaigns. A well-known attempt would be Germany’s NetzDG.[27] The Act stipulates that the social network providers are obliged to delete any unlawful content within 24 hours (or seven days; dependent on how ‘evident’ the unlawfulness is). In addition, providers that have received more than 100 complaints per calendar year are inflicted an obligation to publish reports on the handling of complaints.[28] Owing to the character of the bill, the Act has naturally sparked numerous controversies not only within Germany but also within the Continent, with the general criticism referencing potential violations of the e-Commerce Directive and of the right to freedom of expression.[29]
Conclusion – the feasibility of militant mechanisms in Taiwan
The conception of militant democracy has always been met with reluctance as its machineries evidently infringe certain aspects of fundamental rights – namely the rights to freedom of association and to freedom of expression.[30] Another argument commonly referred to by sceptics is the arbitrariness of militant democracy. To distinguish between which parties and what kind of speech can and cannot be tolerated within a democracy would always involve authoritarian exercise of power. An exercise which contradicts the very logic liberal democracy seeks to protect.[31] These concerns can be handily observed in FCC’s evolving attitude with regard to the disbandment of communist parties as well as the controversies surrounding bills regulating online speech.
Having experienced a monumental defeat in 2018, the Taiwanese incumbent government has also expressed interest in curtailing the People’s Republic of China (PRC) influence of mis-/disinformation campaigns on election cycles.[32] Political clout over several political parties advocating reunification with China has also come under examination.[33] On the one hand, having experienced decades of military dictatorship, combined with the transnational aspect of China’s influence and international Realpolitik today, Taiwan would fit the description of a ‘fragile democracy’, a term used to describe deeply divided society in which the prospect of the erosion of democracy is a realistic possibility.[34] Yet, on the other hand, many are justifiably worried that the militant measures could potentially fall into the paradox or the ‘arbitrary’ trap, thereby endanger the hard-fought democracy. In the second part of this post, the current political reality as to why there has been advocacy of militant measures in Taiwan is briefly examined, followed by a detailed legal analysis of the feasibility of these measures, namely the banning of political parties and restrictions on freedom of speech. This will occur through the lenses of human rights law, as well as possible alternatives.
[1] Patrick Macklem, ‘Militant democracy, legal pluralism, and the paradox of self-determination’ (2006) 4(3) ICON 488.
[2] The ‘teeth’ of this law would include the Federal Constitutional Court’s (FCC) authority to forfeit the rights of those who seek to undermine the aforementioned constitutional order (articles 18), the ‘right to resistance’ of the German people against those who pose a threat to the constitutional order (article 20 [4]), and the FCC’s duty to dissolve any unconstitutional political party (article 21); Rory O’Connell, ‘Militant Democracy and Human Rights Principles’ (2009) 1 Constitutional Law Review 84, 85.
[3] A new German law stipulating that social network providers are obliged to delete any unlawful content within 24 hours (or 7 days; dependent on how ‘evident’ the unlawfulness is).
[4] Macklem (n 1) 489; Carlo Invernizzi Accetti and Ian Zuckerman, ‘What’s Wrong with Militant Democracy’, (2017) 65(1s) Political Studies 182, 183.
[5] Jon Berkeley, ‘How Putin meddles in Western democracies’ The Economist (22 February 2018) <www.economist.com/node/21737326/audio-edition> accessed 25 March 2019; Yi-Zheng Lian, ‘Will Taiwan Be the First Domino to Fall to China?’ New York Times (27 November 2018) <www.nytimes.com/2018/11/27/opinion/taiwan-election-china-interference-domino-theory.html> accessed 25 March 2019.
[6] ‘The White Wolf’ The Economist (Taipei, 4 September 2014) <www.economist.com/banyan/2014/09/04/the-white-wolf> accessed 25 March 2019.
[7] Jan-Werner Müller, ‘Protecting Popular Self-Government from the People? New Normative Perspectives on “Militant Democracy”’ [2016] 19 Annu. Rev. Political Sci. 249, 251.
[8] ibid 250.
[9] Nancy L Rosenblum, On the Side of the Angels: An Appreciation of Parties and Partisanship (Princeton University Press, 2008) 412-455.
[10] Franca Feisel, ‘Is the spectre of Weimar still haunting?: ‘Militant democracy’ and party proscription in contemporary Germany’ (2017) 3 MaRBLe Research Papers <https://openjournals.maastrichtuniversity.nl/Marble/article/view/554> accessed 15 April 2019, 2-3.
[11] Art 21(2) Grundgesetz; Claudia E Haupt, ‘The Scope of Democratic Public Discourse: Defending Democracy, Tolerating Intolerance, and the Problem of Neo-Nazi Demonstrations in Germany’ (2008) 20 Fla J Int’l L 169, 178.
[12] The dissolution of the Sozialistische Reichspartei (SRP) in 1952 and of the Kommunistische Partei Deutschlands (KPD) in 1956.
[13] Claudia E. Haupt, ‘The Scope of Democratic Public Discourse: Defending Democracy, Tolerating Intolerance, and the Problem of Neo-Nazi Demonstrations in Germany’ [2008] 20 Fla. J. Int’l L. 169, 178.
[14] BVerfG, Judgment of the Second Senate of 17 January 2017 – 2 BvB 1/13 -, [1]-[1010].
[15] Gelijn Molier and Bastiaan Rijpkema, ‘Germany’s New Militant Democracy Regime: National Democratic Party II and the German Federal Constitutional Court’s ‘Potentiality’ Criterion for Party Bans’ (2018) 14 EuConst 394, 394-395.
[16] ibid 397; Müller (n 7) 258 – 260.
[17] Article 19, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171.
[18] Article 10, European Convention of Human Rights; Kathleen Ann Ruane, ‘Freedom of Speech and Press: Exceptions to the First Amendment’ (2014) <https://fas.org/sgp/crs/misc/95-815.pdf> accessed 17 April 2019.
[19] Peter R Teachout, ‘Making ‘Holocaust Denial’ a Crime: Reflections on European Anti-Negation Laws from the Perspective of US Constitutional Experience’ (2006) 30 Vt L Rev 655.
[20] Robert A Kahn, ‘Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein and Robert Post’ (2013) 41(3) Hofstra Law Review 557.
[21] Ari Ezra Waldman, ‘The Marketplace of Fake News’ (2018) 20(4) Univ Pa J Const Law 846.
[22] Which was employed by Czechoslovak and Finnish authorities in the 1920s and 1930s.
[23] Karl Löwenstein, ‘Legislative Control of Political Extremism in European Democracies II’ {1938} 38(5) Colum L Rev 725, 738 – 741.
[24] Market Verstraete, Derek E Bambauer, and Jane R Bambauer, ‘Identifying and Countering Fake News’ (2017) 17(15) Arizona Legal Studies Discussion Paper 17-18; Sandy Parakilas, ‘We Can’t Trust Facebook to Regulate Itself’ New York Times (19 November 2017) <www.nytimes.com/2017/11/19/opinion/facebook-regulation-incentive.html> accessed 18 April 2019.
[25] Monica Bulger and Patrick Davison, ‘The Promises, Challenges, and Futures of Media Literacy’ (2018) 10(1) Journal of Media Literacy Education 16.
[26] Ari Ezra Waldman, ‘The Marketplace of Fake News’ [2018] 20(4) Univ. Pa. J. Const. Law. 846, 847.847.
[27] ‘Germany is silencing ‘hate speech’, but cannot define it’ The Economist (Berlin, 13 January 2018) <www.economist.com/europe/2018/01/13/germany-is-silencing-hate-speech-but-cannot-define-it> accessed 19 April 2019.
[28] Wolfgang Schulz, ‘Regulating Intermediaries to Protect Privacy Online – the Case of the German NetzDG’ (2018) HIIG Discussion Paper Series 5-6.
[29] ibid 6.
[30] Müller (n 7) 253.
[31] Accetti and Zuckerman (n 4) 190.
[32] Edward White, ‘Taiwan warns of “rampant’”fake news amid China interference fears’ Financial Times (Taipei, 2 April 2019) <www.ft.com/content/0edbf61e-01a6-11e9-99df-6183d3002ee1> accessed 19 April 2019.
[33] Edward White, ‘Alarm in Taiwan over Triad Ties with Pro-China Groups’ Financial Times (Taipei, 27 October 2017) <www.ft.com/content/b09de5d0-aa76-11e7-93c5-648314d2c72c> accessed 21 April 2019.
[34] Müller (n 7) 253-254; Samuel Issacharoff, ‘Fragile Democracies’ (2007) 120(6) Harv Law Rev 1405.