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Streitbare Demokratie

The political system of the Federal Republic of Germany is also called wehrhafte or streitbare Demokratie (fortified democracy). This implies that the government (Bundesregierung), the parliament (Bundestag) and the judiciary are given extensive powers and duties to defend the freiheitlich-demokratische Grundordnung (liberal democratic order) against those who want to abolish it. The idea behind the concept is the notion that even a majority rule of the people cannot be allowed to install a totalitarian or autocratic regime like as Enabling Act of 1933, thereby violating the principles of the German constitution, the Basic Law.

Tools of the 'Streitbare Demokratie'

Several articles of the German constitution allow a range of different measures to "defend the liberal democratic order".

  • Art. 9 allows for social groups to be labelled "verfassungsfeindlich" ("hostile to the constitution") and to be prohibited by the federal government. Political parties can only be labelled enemies to the constitution by Germany's highest court, the Bundesverfassungsgericht (federal constitutional court), according to Art. 21 II.
  • According to Art. 18, the Bundesverfassungsgericht can restrict the basic rights of people who fight against the "verfassungsgemäße Ordnung" (constitutional order). As of 2008, this has never happened in the history of the Federal Republic.
  • The federal and state bureaucracies can exclude people deemed "hostile to the constitution" from the civil service according to Art. 33 (Berufsverbot). Every civil servant is sworn to defend the constitution and the constitutional order.
  • According to Art. 20, every German citizen has the right to resistance against anyone who wants to abolish the constitutional order, though only as a last resort.

Literature

  • Andras Sajo. From militant democracy to the preventive state? Constitutional Law Review No. 1
  • Rory O'Connell Militant Democracy and Human Rights Principles Constitutional Law Review No. 1
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