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Published online by Cambridge University Press: 02 January 2018
Systems of representative democracy require that the electorate be given at regular intervals the opportunity to replace the party in government with a rival political association. In this context, the right of individuals to freedom of association permits the formation of competitor parties and prevents forms of state intervention that might otherwise privilege existing office holders and their political programmes. It follows then that restrictions on the right to political association are deserving of particularly close scrutiny. At the same time, liberal democratic constitutions usually insist that participants in electoral process manifest a level of commitment to core liberal democratic norms (such as the rule of law, toleration, the equal worth of each individual and the peaceful resolution of grievances). In the case of intolerant, extremist parties that would reject some/most of these norms, the state may invoke a range of defensive measures up to and including proscription in order to safeguard democracy. This paper takes as its focus the constitutional issues raised by the banning in Spain of Batasuna – the political wing of ETA. A legal challenge to the ban is currently before the European Court of Human Rights. Making reference to work of John Rawls, this paper considers whether the ban on Batasuna is justifiable in terms of liberal political theory, before analysing the extent to which proscription conforms to international human rights law and European Court of Human Rights jurisprudence.
1. ETA has claimed responsibility for more than 800 terrorist killings in the period 1968– 2001: Alonso, R and Reinares, F Terrorism, human rights and law enforcement in Spain’ (2005) 17 Terrorism and Political Violence 265 CrossRefGoogle Scholar, citing Spanish Ministry of Interior statistics. Writing in 2003, Sawyer noted that ETA has accepted responsibility for 3391 terrorist incidents in which 836 people have been killed and 2367 injured; see .
2. The term ‘political wing’ itself is controversial. Some commentators argue that it obscures the fact that such ‘wings’ are usually subordinate to the terrorist organisations with which they are associated: Richards, A Terrorist groups and political fronts: the Ira, Sinn Fein, the peace process and democracy’ (2001) 13 Terrorism and Political Violence 72 CrossRefGoogle Scholar.
3. Leading members of ‘Spearhead’ were however convicted in 1962 of the offence of organising or training members of a paramilitary organisation contrary to the Public Order Act 1936, s 2(1).
4. For a list of currently banned organisations, see Sch 2 to the Terrorism Act 2000 (as amended).
5. See specifically Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2005, SI 2005/2892; Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2002, SI 2002/2724; and Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2001, SI 2001/1261 amending the original list set out in 2000. In July 2006, the Home Secretary added two other Islamic groups (al-Ghurabba and the Saved Sect) using the wider criteria in the Terrorist Act 2006, which allows proscription where a group is not directly involved but merely ‘glorifies’ terrorism: A Travis ‘Reid uses new laws to ban two Islamic groups for glorifying terrorism’ The Guardian 18 July 2006.
6. Actual bans were imposed however in 1953 and 1998. See further J van Donselaar ‘Patterns of response to the extreme right in Europe’ in Merkl, P and Weinberg, L (eds) Right-Wing Extremism in the Twenty-First Century (London: Frank Cass, 2003) p 282. Google Scholar
7. GH Fox and G Nolte ‘Intolerant democracies’ (1995) 36 Harvard Intl LJ 1. Examples include the Bulgarian Constitution 1991, Art 11 that proscribes parties which ‘seek the violent usurpation of the state power’; cited in C Tomuschat ‘Democratic pluralism: the right to political opposition’ in Rosas, A and Helgesen, J (eds) The Strength of Diversity (Dordrecht: Martinus Nijhoff, 1992) p 35. Google Scholar
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10. Aristotle himself defines a citizen as someone who ‘participated in giving judgment and holding office’: The Politics (Harmondsworth: Penguin, 1981) p 169 Google ScholarPubMed.
11. See thus Pericles’ Funeral Oration, ‘Here each individual is interested not only in his own affairs but in the affairs of the state as well: even those who are mostly occupied with their own business are extremely well informed on general politics – this is a peculiarity of ours: we do not say that a man who takes no interest in politics minds his own business; we say that he has no business here at all’; quoted in Thucydides The Peloponnesian War (Harmondsworth: Penguin, 1972) p 147 and see commentary by Held, above n 9, pp 15–20.
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18. For Locke’s influence on US constitutional thinking and design, see, inter alia, Held, above n 9, ch 3.
19. Madison, Hamilton and Jay, above n 15, No X. Here Madison states, ‘A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilised nations, actuated by differing sentiments and views’.
20. Ibid.
21. Above n 12, p 228.
22. (London: Allen & Unwin, 1976 (first published in 1942)). Unlike Schumpeter however, Mill did express the hope that, over time, freedom of expression and assembly would generate greater numbers of citizens capable of holding public office.
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27. Fox and Nolte, above n 7, 15–16.
28. For comment among the vast literature on Mill, see, inter alia, Barendt, E Freedom of Speech (Oxford: Clarendon Press, 1985)Google Scholar ch 2 and T Campbell ‘Rationales for freedom of communication’ in . ch 8.
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35. The US Constitution does not explicitly protect freedom of association and so convictions for membership of a ‘subversive’ organisation have tended to be challenged in constitutional courts under the free speech guarantee in the First Amendment.
36. 250 US 616 (1919), 630 and joined by Brandeis J.
37. See thus the US Supreme Court’s upholding of convictions for subversive advocacy in Gitlow v New York 268 US 652 (1925) and Whitney v California 274 US 357 (1927).
38. For analysis, see Greenawalt, K Speech, Crime and the Uses of Language (Oxford: Oxford University Press, 1989)Google Scholar ch 11.
39. 341 US 494 (1951). The Smith Act made it illegal to ‘organize or conspiring to organize a group that advocates the overthrow of the government’. The ruling can best be explained by reference to the wider international context of Cold War politics and fears in the USA about domestic communist activities. For details on how Dennis cut back on the scope of First Amendment protection, see Greenawalt, above n 38, pp 201–204; and Gunther, G Constitutional Law (New York: The Foundation Press, 11th edn, 1985) pp 1015–1036. Google Scholar
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46. (1956) 5 BVerGE 85. For commentary, see Kommers, DP The Constitutional Jurisprudence of the Federal Republic of Germany (Durham: Duke University Press, 2nd edn, 1997) pp 217–238; Google ScholarL Kestel and L Godmer ‘Inclusion and exclusion of extreme-right parties’ in Eatwell and Mudde, above n 33, pp 135–136; R Youngs ‘Freedom of speech and the protection of democracy’[1996] Public Law 225.
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48. Fox and Nolte, above n 7, at 17.
49. Page references here are taken from The Theory of Justice (Oxford: Oxford University Press, revised edn, 1999).
50. Ibid, pp 190–194.
51. Ibid, p 193.
52. Ibid, p 192.
53. A Pedahzur ‘The defending democracy and the extreme right’ in Eatwell and Mudde, above n 33.
54. For evidence of the resort by liberal democracies to rights-infringing methods against perceived threats to stability, see RD Crelinsten and AP Schmid, ‘Western responses to terrorism: a twenty-five year balance sheet’ (1992) 4 Terrorism and Political Violence 307.
55. In the absence of an express provision, the state may sometimes be assisted by judicial implication of the power to proscribe; see in the case of Israel, E A 1/65, Yardor v Chairman of Central Elections Committee for Sixth Knesset 19(3) PD 365 where the court arrogated to itself a power to proscribe a party that denied the existence of the state of Israel.
56. For strong judicial support of a rule of law-based response to anti-democratic forces, see A Barak ‘Foreword: a judge on judging: the role of a supreme court in a democracy’ (2002) 116 Harv L Rev 16 at 148–162 and M Kirby ‘Australian law – after 11 September 2001’ (2001) 21 Austl B Rev 21 at 32.
57. Discussed in R Eatwell and C Mudde ‘Introduction’ in Eatwell and Mudde, above n 33.
58. M Wievorka ‘ETA and Basque Political Violence’ in Aptner, D (ed) The Legitimization of Violence (Basingstoke: MacMillan, 1997)CrossRefGoogle Scholar. See also
59. Wievorka, above n 58, p 300.
60. These included attacks on police and government buildings and a unsuccessful attempt in 1961 to blow up a train carrying Fascist veterans to a Civil War memorial rally in San Sebastian.
61. The assassination was described by the historian Raymond Carr as ‘one of the most brilliantly planned in the history of terrorism’: Spain 1870–75 (Oxford: Clarendon Press, 2nd edn, 1982) p 734.
62. Preston, P The Triumph of Democracy in Spain (London: Methuen & Co, 1986).CrossRefGoogle Scholar
63. Article 1(2).
64. Article 9(1). The citizens and public powers are subject to the Constitution and legal order.
65. Article 33.
66. Article 32.
67. Significantly, the various ‘autonomous’ communities in Spain enjoy highly individualised statutes of autonomy that reflect each communities' distinctive relationship with Madrid. For commentary, see Donaghy, P and Newton, M Spain – A Guide to Political and Economic Institutions (Cambridge: Cambridge University Press, 1987)Google Scholar ch 7.
68. Article 149.
69. It is generally agreed that the Statute of Autonomy has given the Basque country the greatest degree of regional self-government within the EU: J Mata ‘Terrorism and nationalist conflict: the weakness of democracy in the Basque Country’ in Balfour, S (ed) The Politics of Contemporary Spain (Oxford: Routledge, 2005).Google Scholar
70. Mees, L Between votes and bullets: confronting ethnic identities in the Basque Country’ (2001) 24 Ethnic and Racial Studies 798 CrossRefGoogle Scholar.
71. For example in June 1987, a car bomb was exploded outside a department store in Barcelona killing 21 persons and wounding scores of others.
72. Woodworth, P Dirty War, Clean Hands – ETA, the GAL and Spanish Democracy (New Haven: Yale University Press, 2001).Google Scholar
73. For analysis of this period of state terrorism see P Woodworth ‘Using terror against terrorists – the Spanish experience’ in Balfour, S (ed) The Politics of Contemporary Spain (Oxford: Routledge, 2005).Google Scholar
74. The sentences were later reduced on appeal.
75. See Annual Report on Spain (London: Amnesty International, 1999).Google ScholarPubMed
76. Francisco Tomas y Valiente was assassinated on 14 February 1996 in his university office.
77. The peace campaign group Gesto por la Paz claimed in 2002 that 42,000 persons have been subjected to intimidation and harassment by ETA and its supporters (quoted in El Pais 9 November 2002). See further F Reinares ‘Democratization and state responses to protracted terrorism in Spain’ in Van Leeuwen, M (ed) Confronting Terrorism – European Experiences, Threat Perceptions and Policies (The Hague: Kluwer Law International, 2003) p 68. Google Scholar
78. Subsequently, the Constitutional Court ruled that the convictions did not to interfere with defendants’ entitlement to freedom of expression: STC 136/99. For discussion, see further Cram, I A Virtue Less Cloistered (Oxford: Hart Publishing, 2002) pp 201–202. Google Scholar
79. Sawyer, above n 1, at 1540.
80. Known as the Estella-Lizarra Pact of 12 September 1998.
81. ‘Terrorism, human rights and law enforcement in Spain’ [2005] 17 Terrorism and Political Violence 265 at 267.
82. CommDH (2001) 2, s III.
83. CommDH (2005) 8, para 166.
84. Ley Orgánica 5/2000. On the economic impact of the measures to suppress terrorist violence and intimidation, see CP Barros, GM Caporale and L Gil-Alana ETA Terrorism: Police Action, Political Measures and the Influence of Violence on Economic Activity in the Basque Country University of Brunel, Economics and Finance Working Papers (2006), available at http://www.brunel.ac.uk/329/efwps/0603.pdf.
85. For analysis, see E Roller ‘The Basque Country and Spain: continued deadlock?’ (2002) 7 Mediterranean Politics 113.
86. Ley Orgánica de Partídos Politicos 6/2002 which came into effect in June 2002 when it was published in the Official Bulletin of the State. When the legislature wishes to reform fundamental rights or liberties recognised in s 1 of ch 2 of the 1978 Constitution, the Lower House is required to pass amending measures in the form of a ley orgánica, which must secure an absolute majority.
87. Council Regulation (EC) No 2580/2001 of 27 December 2001 on Specific Restrictive Measures Directed Against Persons and Entities with a View to Combating Terrorism [2001] OJ L344/70, Art 2(3).
88. ETA’s response to the agreement between the Partido Popular and the Socialist opposition was made clear within 48 hours when it assassinated a politician in Barcelona.
89. BCommDH (2003) 15 at Appendix A (Spanish Government's response to Commissioner Gil-Robles' 2001 Report).
90. See further I Cram ‘Regulating the media: some neglected freedom of expression issues in the United Kingdom's counter-terrorism strategy’ (2006) 18 Terrorism & Political Violence 335.
91. Exclusive jurisdiction is vested in a panel of the Supreme Court by Art 10 of the Ley Orgánica de Partidos Políticos.
92. Article 11
93. I am adopting with gratitude the text of Katherine Sawyer’s translation in ‘Rejection of Weimarian Politics or Betrayal of Democracy?’, above n 1, at 1546, n 83.
94. Reported at STC 48/2003, 12 March 2003.
95. Citing the European Court of Human Rights’ ruling in Refah Partisi v Turkey (2003) 37 EHRR 1.
96. Autos acumulados No 6 and 7/2002, 26 March 2003 Ilegalizacíon de los Partidos Políticos Herri Batasuna, Euskal Herritok y Batasuna. See further Turano, L Spain: banning political parties as a response to Basque terrorism’ (2003) 1 International Jo of Constitutional Law 730 CrossRefGoogle Scholar.
97. See, eg, the conviction of Arnaldo Otegi in 1989 for kidnapping.
98. For criticism, see J Pérez Royo ‘El derecho de Batasuna a no condenar’ El Pais 20 August 2002 and N Rosenblum Partisan Faith paper presented at Multiculturalism and the Antidiscrimination Principle Conference (Tel Aviv, December 2005).
99. M Jesus Funes Rivas La salido del silencio – Movilizaciones por la paz en Euskadi 1986–98 (Madrid: Ediciones Akal, 1998). Other organisations include El Colectivo de Victimas del Terrorismo representing the victims of terrorist activities and Basta ya! set up by those concerned at the intimidation suffered by non-nationalist Basque citizens.
100. Claims alleging breach of Arts 6 and 7 were also made the Basque Government.
101. Government of the Autonomous Basque Community v Spain (Application No 29134/03) 3 February 2004.
102. The word ‘real’ is used by the court in United Communist Party v Turkey (1998) 26 EHRR 121 at 153.
103. Declaration of the Spanish Government as follows: ‘The Spanish Government accedes to the Optional Protocol to the International Covenant on Civil and Political Rights, on the understanding that the provisions of article 5, paragraph 2, of that Protocol mean that the Human Rights Committee shall not consider any communication from an individual unless it has ascertained that the same matter has not been or is not being examined under another procedure of international investigation or settlement’: Optional Protocol to the International Covenant on Civil and Political Rights New York 16 December 1966 - Declarations and Reservations.
104. It is also worth noting that Art 4 of the ICCPR allows exceptionally for temporary derogation of Covenant obligations during a state of emergency. The measures taken must be limited to the ‘extent strictly required by the situation’. I do not address these restrictions in any detail here.
105. Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies – Note by the Secretariat HRI/GEN/1/Rev.7, General Comment No 10: Art 19 (Freedom of Opinion) 12 May 2004. And see thus Nowak, M The UN Covenant on Civil and Political Rights (Kehl: Engel, 1993) pp 394–396. Google Scholar
106. UN Doc E/Cn.4/1984/4/Annex (1984) and reproduced at (1985) HRQ 3–14. The standards were drafted by a group of international human rights experts and are considered to enjoy the status of ‘soft’ or persuasive norms within international law. The current Special Rapporteur on the Promotion and Protection of Human Rights while Countering Rerrorism has referred to the principles as offering ‘important, authoritative guidance to the meaning of terms contained in the Covenant’: (A/61/267, 2006) para 11, n 7.
107. Ibid, Principle 20.
108. Ibid, Principle 29.
109. Protecting Human Rights and Fundamental Freedoms while Countering Terrorism (A/61/267, 2006) para 22.
110. See Nowak’s comment that Art 20 is an ‘alien element in the system of the Covenant’ in Nowak, above n 105, p 359. For an example of a Human Rights Committee opinion on the scope of Art 20, see JRT and the WG Party v Canada 104/81, UN Doc CCPR/C/OP/2 (1984) at 25.
111. CETS 196 – Prevention of Terrorism, 16.V.2005, Art 5(1) states ‘For the purposes of this Convention, “public provocation to commit a terrorist offence” means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed’.
112. JP Laborde and M DeFeo ‘Problems and prospects of implementing UN action against terrorism’ [2006] J Int Criminal Justice 1087 at 1094–1096.
113. The UN Special Rapporteur, Martin Sheinin, has criticised the new UK laws on glorification and indirect encouragement of terrorism for lacking clarity on the issue of mens rea; see A/61/267, above n 109, para 7.
114. 117/81. The decision has been criticised for failing to examine Italy’s restriction on Art 22 on its merits; see McGoldrick, D The Human Rights Committee – Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Oxford University Press, 1991) pp 166–167. Google Scholar
115. See thus Ayres, T Batasuna banned: the dissolution of political parties under the European Convention of Human Rights’ (2004) 27 Boston College International and Comparative Law 99 Google Scholar; ; Sawyer, above n 1.
116. Sawyer, above n 1.
117. (2003) 37 EHRR 1
118. Ibid, at para 47.
119. See further Justice Michael Kirby Terrorism and the Democratic Response: A tribute to the European Court of Human Rights Robert Schumann Lecture delivered at the National Europe Centre, The Australian National University (Canberra, 11 November 2004), available at http://www.delaus.cec.eu.int/pressandinformation/speeches/speech_Kirby.htm.
120. European Convention on Human Rights, Art 1.
121. United Communist Party v Turkey, above n 102, at 149; Castells v Spain (1992) 14 EHRR 445.
122. Refah Partisi v Turkey, above n 95, at 36.
123. United Communist Party v Turkey, above n 102, at 149.
124. Christian Democratic People’s Party v Moldova (Application No 28793/02) Judgment 14 February 2006.
125. United Communist Party v Turkey, above n 102, at 148.
126. (1999) 27 EHRR 667. The Venice Commission standards on the proscription of political parties appear to distinguish between cases in which the anti-democratic speech emanates from members with authority to act as spokepersons and those without: ‘No political party should be held responsible for the behaviour of its members. Any restrictive measure taken against a political party on the basis of the behaviour of its members should be supported by evidence that he or she acted with the support of the party in question or that such behaviour was the result of the party’s programme or political aims. In the case that these links are missing or cannot be established the responsibility should fall entirely on the party member’: European Commission for Democracy through Law Explanatory Report on Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures (CDL-PP 001, 1999), para 12.
127. The Socialist Party and Others v Turkey (1998) 27 EHRR 51.
128. For details of various published comments made by ETA sympathisers, see the text of the Government’s case for prohibition, available at http://www.elmundo.es/documentos/2002/09/demanda.pdf, pp 19–28.
129. Above n 95, at paras 107–108. The minority dissent in Refah stressed conversely the drastic nature of proscription and suggested that the evidence linking the party to pose a serious threat to the democratic order in Turkey was not present. See further E Brems ‘Freedom of political association and the question of party closures’ in Sadurski, W (ed) Political Rights under Stress in 21st Century Europe (Oxford: Oxford University Press, 2006) pp 179–187 CrossRefGoogle Scholar, who notes that the majority did not require Turkey to demonstrate that less restrictive measures had been tried and found wanting in the case of Refah members.
130. CommDH (2005) 8, paras 166–167.
131. ‘Democratic pluralism: the right to political opposition’ in Rosas, A and Helgesen, J (eds) The Strength of Diversity (Dordrecht: Martinus Nijhoff, 1992) p 27. Google Scholar
132. Review of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987 Cmd 1115, 1990, para 15.4.
133. Fox and Nolte, above n 7.
