Theories of Democracy and Their Relevance to Judicial Review By Cheryl L.

Daytec-Yagot In matters of conscience, the law of majority has no place. Mahatma Gandhi1 Abraham Lincoln defined democracy as a government for the people, of the people and by the people.2 And yet, it is a word that invites endless discourses in the political and academic communities as it is attached to a motley of meanings advanced by political theorists and legal philosophers. Disciples of democracy all agree that democratic politics aims at the widest distribution of power among the citizenry.3 Yet debates among democratic theorists about what power means and who legitimately exercises it for the people see no resolution. Democracy is thus a thorny issue and is further compounded by other issues as the role of the Constitution and the power of the judiciary in it. Majoritarianism: The Tyranny of Numbers Majoritarian democracy is a government by majority will enforced through elected representatives. Some pejoratively call it the
Katherine van Wormer (ed.) Restorative Justice Across the East and West; available at http://www.aasw-asia.net/bk_rest.pdf 2Abraham Lincoln. The Gettysburg Address; available online at http://showcase.netins.net/web/creative/lincoln/speeches/gettysburg.htm. 3 Ronald J. Terchek and Thomas C. Conte. Lanham: Rowman and Littlefield, 2001 Theories of Democracy; available online at http://www.bsos.umd.edu/gvpt/terchek/reader_intro.pdf.
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rule of the mob or populist democracy because of the belief that it lacks inherent capacity for institutional controls against the will of the majority.4 The limitation of majoritarian democratic power is that a current majority cannot prohibit the emergence of a new majority as when a part of the majority shifts its position to join the minority to form a new majority. Likewise, the majority cannot disenfranchise the minority from its right to participate in the democratic process, thus opening the possibility of a shift in the balance of power. Opponents of majoritarianism call it tyranny of the majority5 because a decision of the majority is democratic even if incompatible with justice6 and can ultimately lead to the collapse of the rule of law.7 However, John Hart Ely, a disciple of majoritarianism does not share this. Ely asserts that democracy is procedural and is divorced from the dimensions of political morality. It safeguards processes by which the majoritys will surfaces in terms of substantive norms. Under his representative reinforcement proposition, the Constitution merely defines the democratic processes by which substantive norms may be imposed.

Roberto Gargarella, A Majoritarian Reading of the Rule of Law in Adam Przewroski, et al. (eds) Democracy and the Rule of Law. Cambridge: Cambridge University Press (2003), p. 147
4 5Kerry

Burch. How Toquevilles Theory of Tyranny of the Majority Can Benefit Social Justice Pedagogies; accessed from 6 Dworkin, Is Democracy Possible Here. Principles for a New Political Debate. New Jersey: Princeton University Press, 2006. 7 Roberto Gargarella, A Majoritarian Reading of the Rule of Law in Adam Przewroski, et al. (eds) Democracy and the Rule of Law. Cambridge: Cambridge University Press (2003), p. 148

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Ely believes that the judiciary is the most insulated branch of government8 owing to the fact that judges enjoy security of tenure, and, to a limited degree the mode of their selection. This relative insulation, from the democratic process, Ely argues, situates them well to police malfunctions in the process especially in cases of conspiracy between the legislature and the executive supplanting the majoritys will.9 But like Rawls, Ely advocates that the Constitution should, in large measure, proffer procedural guarantees thinner than the substantive values individual members of the society hold.10 He espouses that the very nature of a Constitution is to create procedural framework rather than to resolve substantive issues.11 But the similarity between the two may end here because Rawls does not share the position that substantive values have no place in the Constitution.
12

What is the role of judges? To Ely, the Constitution is a naked document, stripped of matters of substance and values. Hence, judicial interpretation should be divorced from notions of principles and values. To read moral rights values in the Constitution is to go against the very notion of democracy. Speaking of the American model, Ely notes that Supreme Court justices are not elected and possess unlimited tenure. This poses an anomaly in the exercise of judicial review because

John Hart Ely, War and Responsibility: Constitutional Lessons of Viet Nam and Its Aftermath. New Jersey: Princeton University Press (1993), p. 54 9 Ibid. 10Michael C. Dorf, Putting the Democracy in Democracy and Distrust: The Coherent Case for Representation Reinforcement. 58 Univ of Toronto L.J. 335 11 Ibid. 12 Ibid.
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a body that is not elected or otherwise politically responsible in any significant way is telling the peoples elected representatives that they cannot govern as they would like.13 Courts should construe the Constitution to fortify and strengthen democratic processes and popular self-government through ensuring equal representation in the political process. Constitutional adjudication of substantive matters should be abstracted from the judiciarys hands, a constitutionally unrepresentative branch, and handed to the majoritarian legislature. This reinforces constitutional interpretation through the appropriate legislation. What the courts can do is to give to the elected officials the power to interpret the Constitution rather than arrogate the power unto them since they were not elected and are not representatives of the people. However, the courts can strike down the decisions of the elected officials if they are self-serving, are adverse to the political process or affect discrete or insular minorities.14 Elys conception rejoices at the Baker v Carr15 decision where the US Supreme Court recognized the reapportionment of legislative districts as a justifiable concern. Strasbourg jurisprudence or the jurisprudence of the European Court of Human Rights is replete with cases of a supranational judicial organ overriding majoritarian decisions. In United Communist Party of
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), p. 5 Tina Hunter. Interpretive Theories: Dowrkin, Sunstein and Ely. BondLawReview.Vol17,Issue2 15 369 U.S. 186 (1962),
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Turkey v. Turkey,16 a political party was banned for advocating the right of internal self-determination of the Kurdish people. But the ECtHR ruled that the ban violated the political rights of association and expression, declaring that there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the States population and to take part in the nations political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned.17 In Socialist Party and Others v. Turkey,18 the ECtHR castigated Turkey for banning a party asserting the Kurdish peoples right of secession as it also campaigned for binational and bilingual federal constitutional order under which Kurdish and Turkish peoples could peacefully co-exist. The court pronounced that it is the essence of democracy to allow diverse political programs to be proposed and debated, even those that call into question the way a State is currently organized, provided that they do not harm democracy itself.19 In Freedom and Democracy Party v. Turkey,20 the Court upheld the right of a political party to advocate the establishment of a democratic assembly of elected representatives to address the place of the Kurdish people in the Turkish constitutional order.

Application number (133/1996/752/951). United Communist Party of Turkey and Others v. Turkey, App. No. 133/1996/752/951. 18 Socialist Party and Others v. Turkey, App. No. 20/1997/804/1007, 27 EUR. H.R. REP. 51 (1998). 19 Ibid. 20Application no. 23885/94
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Liberal Democracy: Building Partnerships Liberal democracy or constitutional democracy is a form of representative democracy that subscribes to the rule of the majority in electing representatives but propounds that the powers of these elected representatives are restricted by the Constitution or the fundamental law to protect individual liberties and the rights of minorities. It is principle features include a system of checks and balances and entrenched individual rights protected by an independent judiciary.21According to Dworkin, liberalism has a partnership view of democracy, that is, The people govern themselves each as a full partner in a collective political enterprise so that a majoritys decisions are met that protect the status and interests of each citizen as a full partner in that enterprise.22 Unlike majoritarianism, liberalism does not defer to absolute majority rule, except when electing representatives. Thus, the will of the majority, expressed through elected representatives, cannot be absolute as it is subject to restrictions flowing from the Constitution. In Dworkins conception, even though officials of a community are elected by impeccably majoritarian means, it is not democratic if it steadily ignores the interest of some minority or other group.23 Assailing positivism which rejects the concept of natural law, Dworkins thesis is that individuals can have rights against the state

Roberto Gargarella, supra., p. 148 Ronald Dworkin, Is Democracy Possible Here? P. 131 23 Ronald Dworkin, ibid., p.
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which exist prior to the rights created by explicit legislation24 and this rights, while textually absent in the Constitution spiritually pervade the fundamental law. Unlike the majoritarian conception of democracy, liberalism or partnership conception is both a substantive and procedural ideal as it does not make democracy independent of the rest of political morality; on that conception, we need a theory of equal partnership to decide what is or is not a democratic decision, and we need to consult ideas about justice, equality and liberty in order to construct such a theory.25 While he believes that a judges discretion like the hole in the donut does not exist except as an area surrounded by a belt of restrictions,26 Dworkin propounds that judicial review must accomplish more than determining the constitutionality of acts of the majoritarian branches,27 a procedural exercise, but must search in those laws substratal principles protecting individual rights. The silence or vagueness of laws which positivists call open texture,28 must be confronted by judges by examining the principles underlying the laws which reflect societys morality. 29 Thus, Dworkin endorses with alacrity the US Supreme Court decisions30 where it declared rights textually
Ronald Dworkin, Taking Rights Seriously (2002) (1977). Dworkin, Is Democracy Possible Here? Principles for a New Political Debate, supra., p. 134 26 Dworkin, Taking Rights Seriously, supra., 27 Dowrkin, Is Democracy Possible Here? Principles for a New Political Debate, p. 136 28 H.L.A. Hart, The Concept of Law (1994), pp. 121-132 29 Ronald Dworkin, Taking Rights Seriously (2002), p. 22. 30 Sunh as Roe v Wade, Katz v. US, Bower v Hardwick and Griswold v Connecticut
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absent in the Constitution as penumbras of existing constitutionally guaranteed rights. But why should judges resort to penumbras? Why not, as liberalists argue, leave it to the majoritarian branches to enact the substantive norms? First, the substantive norms already exist, although not textually but as principles underlying the laws and legislation would be a mere superfluity. Second, questions concerning rights are better addressed by the judiciary than by the majoritarian branches of government because rights are essentially the ultimate protection- or trumps31- against the will of the majority. The majoritarian branchesthe branches run by officials elected by the majority- cannot fulfill this function as they have been catapulted to power by the majority. But courts are cloistered from pressures of popular will. Militant Democracy: The Paradox of Adopting Undemocratic Means to Promote Democracy Disillusioned by the legalistic self-complacency of democracies whose norms ironically served as the the Trojan horse by which the enemy enters the city32 and thus allowed fascism to progress, Karl Lowenstein in 1937 proposed militant democracy. It refers to a form of constitutional democracy authorized to protect civil and political freedom by preemptively restricting the exercise of such freedoms.33
Jeremy Waldron, Pildes on Dworkin's Theory of Rights. The Journal of Legal Studies, vol. 29 (January 2000), p. 1 32 Karl Loewenstein, Militant Democracy and Fundamental Rights, The American Political Science Review, vol XXXI, 3, 417ff. and vol. XXXI, 4, 638ff., both of 1937. 33 Karl Lowenstein, Militant Democracy and Fundamental Rights I, 31 AM. POL. SCI. REV. 417 (1937).
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In short, it is a democracy capable of defending itself,34 a concept reinforced by the ECtHR in declaring that democracy . . . appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.35 Theoretically, militant democracy acts within constitutional boundaries (and therefore within legal metes) in a manner antithetical to democracy to quash threats that undermine it. Clearly, the European experience, particularly the Holocaust, during World War II and the Cold War provides a strong historical and cultural anchor for militant democracy. Its earlier traditional manifestations include hate-speech legislations, the banning of political parties and organizations and, in the case of Germany, the imposition of loyalty tests on civil servants, in lieu of banning political parties. Its recent conspicuous manifestations include the raft of antiterrorism legislative initiatives adopted by many states introduced in the aftermath of the September 11, 2001 terrorist attack on the United States. Courts have become instrumental in perpetuating militant democracy, justifying their actions with the claim that central to their role is watching over basic values (of democracy) and protecting them against those who challenge them.36

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Art. 21, German Basic Law United Communist Party of Turkey Aharon Barak, The Judge in a Democracy. New Jersey: Princeton University Press (2006), p. 22

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Consider the Socialist Reich Party Case.37 Germany banned a political party espousing neo-Nazi ideology, destructive of democracy. But subsequent decisions revealed a dramatic softening of militancy in banning parties surfacing the rising sentiment among the justices that it would be more prudent to allow the party to bury itself in an open political contest than to have it banned by judicial decree38 perhaps owing to the fact that the threats were no longer as proximate as the morning after the dominion of Nazism. Thus, in the Communist Party Case,39 the German Constitutional Court threw out the challenge on the Communist Partys constitutionality. In the National Democratic Party Case,40 the Court acknowledged the unconstitutionality of certain principles of a neo-Nazi right-wing party without banning it, demonstrating relaxed militancy. But still clutching militant democracy by the coattails, it threw out the constitutional challenge instituted by the party against the States action of publicly branding it (the party) as an enemy of freedom and democracy. Sustaining the States finding that the party espoused undemocratic tenets, the Court unmasked to the public the partys anti-democratic character, an obvious act of influencing the democratic process- elections- that would determine the partys political fate. The shift from banning parties smoothly glided to creating a loyal bureaucracy by imposing loyalty tests on civil servants. Thus, in Kosick v. Germany,41 a school teacher was dismissed for failing to meet
2 BVerfGE I (1952) P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany. London: Duke University Press (1997), p. 222 39 Although this case was instituted in 1951 ahead of the Socialist Party Case, it was only in 1956 that it was decided. 40 40 BVerfGE 287 (1975) 41 (1986) 9 EHRR 328
37 38Donald

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the "personal qualifications" for appointment to the "civil service" which included commitment to "the principles of the free democratic constitutional system" of West Germany and the non-membership in any organization "actively opposed to those principles." The teacher was a member of an extremist right-wing organization branded as democracys enemy. The concept of militant democracy has spilled over to the European Court of Human Rights. In K.D.P. v. Germany, the ECtHR upheld the disenfranchisement from electoral participation of individuals who disseminated racist materials.42 In B.H., M.W., H.P. and G.K. v Austria,43 Strasbourg said that National Socialism principles are beyond the ambit of protection out of respect for the historical past forming the background to the Convention declaring, National Socialism is a totalitarian doctrine incompatible with democracy and human rights. In Yazar and others v. Turkey,44 the Court held that a transformative political agenda must be compatible with fundamental democratic principles, and the means chosen to implement such an agenda themselves must be legal and democratic.45 In several cases where it overruled constitutional court decisions banning political parties, the ECtHR justified its decisions declaring that the concerned parties did not constitute threats to democracy, suggesting that the presence of such threats are justifications for militancy.

1 Y.B. Eur. Conv. H.R. 222 (Eur. Commn on H.R.). B.H., M.W., H.P. and G.K. v. Austria, 12 October 1989, Application No. 12774/87 44 Application No: 00042713/98 date of judgment 22 Sep 2004. 45 Yazar and others v. Turkey, App. Nos. 22723/93, 22724/93 and 22725/93, Judgment of April 9, 2002, at para. 49.
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However, another face of the effect in Europe of militant democracy is that, paradoxically, undemocratic means to preserve democracy have been legitimized by the courts. This is shown in the earlier German cases discussed. The more recent case is Refah Partisi et al v. Turkey.46 The European Court of Human Rights (ECtHR) upheld the militant manner by which Turkey banned Refah Partisi, a political party that advocated the introduction of Shariah Law into the Turkish legal order which was held to militate against the principle of secularism advocated by Turkey. The decision is anomalous for two things: one, Refah Partisi was democratically elected by an overwhelming majority; and two, the party was pushing for legal pluralism, which Strasbourg has stated in more than one decision is necessary, like tolerance and broadmindedness, to democracy.47 One could argue and not unconvincingly- that the consequence of judgments like Refah Partisi of suppressing legitimate political activity in a setting of democratic pluralism hearkens back, ironically, to the very ignoble strategies employed by many tyrannical regimes that gave rise to the need for the Strasbourg institutions and the United Nations itself. By condoning the political disenfranchisement of a democratically elected organization on the reason alone that it upsets mainstream doctrines, Strasbourg is indubitably nourishing the very

Case of Refah Partisi (The Welfare Party) and Others v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98 and 41344/98, 35 EUR. H.R. REP. 3 (2001).
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Mslm Gndz v. Turkey, Application no. 35071/97 of 4 December 2003; Karatas v Turkey (GC), supra.; Vogt v. Germany, Application No. 7/1994/454/535, 2 September 1995.
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social and cultural attitudes that saw the ascension of despots to the thrones of power. Assessing Risks to Democracy and Judicial Review In assessing risks to democracy as consequence of the exercise of political rights, courts may adopt either of two postures: riskassumption posture or a risk-averting one. Militant democracies resort to risk-prevention while liberal and majoritarian democracies would rather assume risks now and prosecute later when necessary. Representative democracies believe that an open market of ideas and free association and assembly liberate individuals. Exercising their political rights, they are able to resist manipulation and thus participate intelligently in democratic processes and contribute to a vibrant democracy. As John Stuart Mill said, The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.48 Thus, in liberal and majoritarian democracies, judicial review sets in only when there is an actual case or controversy, that is, when the exercise of political rights clashes with the right of others including the
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John Stuart Mill, On Liberty. Toronto: Dover Publication, 2002.

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State. In other words, these democracies will respect the autonomy of individuals or organizations to act and press the brakes only when danger is present; thus, subsequent punishment is preferable to prior restraint. As early as in 1931, the US Supreme Court in Near v. Minnesota,49 decreed that prior restraints on expression are unconstitutional, except in extremely limited circumstances, such as national security issues where there is clear and present danger. Courts in a preventive state dodge risks by taking over the brakes and stepping on them before an act is committed by an individual or group to promote an agenda antithetical to democratic tenets. But what factors justify a courts operating in a risk-averting mode? In assessing whether preventive intervention is legitimate, the ECtHR considers three factors: timing of the intervention, proof of threat to democracy and the probability of danger.50 As regards timing and probability of danger, preemptive action may take place before a party seizes power and advances its ideology incompatible with democracy as long as the danger is sufficiently imminent.51 When is the danger sufficiently imminent? The rise of a political party advocating anti-democratic tenets does not per se give rise to a justification for preventive action. But when, by the sheer force of its number and political strength, it has the strong potential to seize power and swing into action, for example by tabling bills in parliament, in order to implement its plans,52 aborting the risk is justified.
283 U.S. 697 (1931). Refah Partisi v Turkey, supra 51 Ibid. 52 Ibid.
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This shares a family resemblance with Dennis v. United States53 where the United States Supreme Court ruled that the guarantee of free speech, publication and assembly did not extend to acts in furtherance of a communist conspiracy to overthrow the government. The difference is that while the imminence of threat mattered to the ECtHR, it did not to the US Supreme Court. But in the latter case of Brandenburg v. Ohio54, the US Supreme Court adopted the doctrine of grave and imminent danger. It declared that speech however inflammatory is not punishable unless it is intended to incite and likely incites imminent lawless action and thus invalidated an Ohio penal law prohibiting mere advocacy of violence. In other words, only imminence of danger can justify prior restraint on the exercise of political rights. As regards proof of threat to democracy, the ECtHR in Refah Partisi held that plausible evidence is sufficient.55 This is quite dangerous as it may likewise destroy the very tenets of democracy by suppressing the exercise of political rights on mere plausibility of imminent threat to danger. And yet, an examination of Strasbourg jurisprudence shows that it has had shown a soft side to the exercise of political rights. In drawing the demarcation line between permissible and impermissible expression, Strasbourg evaluates intent, content and context. Thus, in Vogt v. Germany, 56 it was held that although
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341 U.S. 494 (1951) 395 U.S. 444 (1969) Refah Partisi v Turkey, supra. Application No. 7/1994/454/535, 2 September 1995.

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communism is regarded reprehensible to democracy, sheer membership in a communist organization not legally banned is insufficient basis to penalize an individual especially where the latter has not advocated violence and this intent to promote disorder cannot be presumed. Mere use of aggressive language does not legitimize interference. In Vajnai v Hungary,57 a politician who was also a leader of a labor party, wore the symbol of the workers movement when he spoke in a public demonstration. He was prosecuted for promoting totalitarianism, a conclusion drawn by the State from his wearing the symbol which was also associated with communism. The ECHR held that the use of an equivocal symbol associated both with communism and proletariat struggle for better labor conditions does not promote totalitarian propaganda, especially in light of the fact that the politician wearing it was not known for promoting totalitarian agenda. His act of wearing a symbol did not present a clear and present danger to democracy. Parting Comments This paper delved into liberal democracy, majoritarian democracy and militant democracy and how constitutional adjudication of cases involving political rights are approached under each theory. It also tackled the different assessment of risks and their relevance to judicial review. In the end, what comes out is the picture that there is no theory of democracy. There are however theories of democracy and, sometimes, they compliment each other while at other times they negate each other, enriching the perpetual debate on what democracy means. The literature on democracy is wealthy but so are the
57Application

No. 33629/06

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confusions that they sow. In the ultimate analysis, what matters is for the judiciary to exercise its role of saying what the law is 58 however it conceives that role in manner responsive to the prevailing sociopolitical climate.

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Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803)

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