'Militant Democracy: An Alien Concept For Australian Constitutional Law?' by Svetlana Tyulkina in (2016) 36(2)
Adelaide Law Review 517 comments
This article presents an overview of the development and growth of the concept of militant democracy in contemporary constitutional theory and practice, and its relevance to Australia. Militant democracy refers to a form of constitutional democracy authorised to protect its continued existence as democracy by pre-emptively restricting the exercise of civil and political freedoms. Initially, militant democracy focused on electoral integrity, adopting measures such as the prohibition of allegedly undemocratic political parties. However, in recent years militant democracy has expanded to include policies aimed at addressing threats such as religious fundamentalism and global terrorism. This article examines the extent to which Australia can be said to be a militant democracy. It investigates how militant democracy is manifesting itself in contemporary Australian democracy by analysing provisions of the Australian Constitution, relevant legislation and jurisprudence of the High Court of Australia. The article attempts to reconceptualise certain features of the Australian constitutional system through the lens of the militant democracy concept.
Tyulkina states
Over the past few decades militant democracy has emerged as an important way of understanding constitutional systems around the world. Generally speaking, militant democracy is a form of constitutional democracy authorised
to protect its continued existence as a democracy by pre-emptively restricting the exercise of civil and political freedoms. Initially militant democracy focused on electoral integrity, adopting measures such as the prohibition of allegedly undemo- cratic political parties. However, in recent years militant democracy has expanded to include policies aimed at addressing, for example, the threats of religious fundamentalism and global terrorism.
The concept of militant democracy provides a different perspective to the liberal view of the state. Under the latter view, democracy is understood as an accommodating political system premised on there being a plurality of ideas and opinions. However, liberalism presents a serious dilemma for democracy: how should it defend itself against non-democratic political collective or individual actors? The concept of militant democracy was introduced to legal scholarship and constitutional practice as an attempt to address this challenge.
Militant democracy is widely used to better understand constitutional systems and evaluate and explore their practical operation, particularly in relation to the actions of the state directed at self-defence from internal threats. It is especially useful where it provides a rationale for constitutional concepts and approaches that might otherwise be considered outside the liberal conception of democracy. An example of this is the most obvious dilemma of any democracy — how to protect democracy from its potential ‘enemies’ and remain true to itself. Despite the importance of the idea of militant democracy and its wide use in constitutional scholarship, the concept’s application has not been investigated in respect of the Australian Constitution. This article fills this gap by explaining and developing the concept, and by determining whether and to what extent it applies to Australian constitutional law.
This article first focuses in Part II on the concept of militant democracy and its growth in contemporary constitutional theory and practice. It argues that all democracies are militant to some extent, but warns that the concept should not be idealised, as its practical application can be problematic. Part III then examines the modern interpretation and application of this concept outside Australia. It will also discuss how the concept of militant democracy is being applied to address the ‘new’ types of threats faced by democracies. This discussion lays the background for Part IV, where the relevance and potential application of militant democracy in the Australian context is explored. This analysis draws upon the text of the Australian Constitution, legislation for the proscription of unlawful associations and examples from the constitutional jurisprudence of the High Court of Australia. Part V then concludes that despite the common perception of the Australian Constitution as a liberal document, militant democracy does have an important role to play in understanding the Constitution and explaining the way it operates.
