States of Emergency - Centre for Policy Alternatives

who use them to attack or undermine the free democratic basic
order, and Article 21 (2) allows the declaration as unconstitutional
any political party that has similar goals. In two of its earliest
cases, the German Constitutional Court used these provisions to
declare unconstitutional the Socialist Reich Party and the
Communist Party. 178 The constitution of Turkey has strong
prohibitions on advocacy against its unitary and secular character,
which have been the subject of litigation in the European Court of
Human Rights under Article 17 of the European Convention of
Human Rights, itself considered an explication of militant
democracy. 179
Thus, was the Sri Lankan government’s emergency response of the
Sixth Amendment a case of entrenchment of militant democracy
It is doubtful if it can be described as such. Germany, unlike
Turkey, is a highly liberal constitutional order that protects
minorities through a variety of mechanisms, including the federal
principle. If minority protection of that nature had been a feature
of the Sri Lankan State, perhaps ethnic pluralism may not have
spilled over into violent conLlict. In any event, neither the sponsors
of the amendment nor its subsequent defenders have attempted to
justify it on these grounds, but rather as an element of the
necessary legal and constitutional framework with which to,
militarily, meet the threat of armed secessionism. But for the
purposes of this discussion, the Sixth Amendment is an illustration
of the range of measures that becomes politically available to the
executive to implement, in this case, a constitutional amendment
178
The
Socialist
Reich
Party
Case
(1952) 2 BVerGE 1; The
Communist
Party
Case
(1956) 5 BVerGE 85
179
Refah
Partisi
v.
Turkey
(2003) 37 EHHR 1; Paul Harvey (2004) ‘Militant
Democracy
and
the
European
Convention
on
Human
Rights’ 29 European
Law
Review
407
104