States of Emergency - Centre for Policy Alternatives

conLlict, but the character of the Sixth Amendment as an
emergency measure, designed ostensibly to combat an armed
challenge to the constitutional order and the integrity of the State.
Despite the opprobrium it has attracted among liberal opinion in
Sri Lanka, 173 the rationale underpinning the Sixth Amendment has
a remarkably liberal democratic pedigree.
Theoretically developed as a liberal response to the instrumental
use of the majoritarian principle and democratic institutions by
Nazis and Fascists in pre‐World War II Europe by Loewenstein, the
concept of militant democracy 174 has found expression in the post‐
World War II Basic Law of the Federal Republic of Germany as a
fundamental constitutional principle. Loewenstein’s concern was
that a fundamentalist adherence to the ‘exaggerated formalism of
the rule of law’ would be self‐defeating for the democratic
constitutional order in the face of the fascist challenge. Instead he
advocated the concept of militant democracy, which would
abandon the formalistic application of the rule of law, including
constitutionally recognised fundamental rights, in the defence of
the core values of liberal democracy. Loewenstein believed in the
173
Council for Liberal Democracy (1986) ‘Statement
calling
for
the
Repeal
of
the
Sixth
Amendment
to
the
Constitution’ in Chanaka Amaratunga (Ed.)
(1990) Liberalism
in
Sri
Lanka
1981
–
1991:
A
Documentary
Record
(Colombo: Council for Liberal Democracy and Friedrich Naumann
Stiftung): p.132
174
On ‘militant democracy’ as a legal and political concept, see Gregory H.
Fox & Georg Nolte (1995) ‘Intolerant
Democracies’ 36 Harvard
International
Law
Journal
1; Martti Koskenniemi (1996) “Intolerant
Democracies’:
A
Reaction’ 37 Harvard
International
Law
Journal
231;
Brad R. Roth (1996) ‘Democratic
Intolerance:
Observations
on
Fox
and
Nolte’ 37 Harvard
International
Law
Journal
235; Gregory H. Fox &
Georg Nolte (1996) ‘Fox
&
Nolte
Response’ 37 Harvard
International
Law
Journal
238; Dan Gordon (1987) ‘Limits
on
Extremist
Political
Parties:
A
Comparison
of
Israeli
Jurisprudence
with
that
of
the
United
States
and
West
Germany’ 10 Hastings
International
and
Comparative
Law
Review
347
102