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Francesca Corcella hold’s a master degree in Human Rights and Multi-level Governance from the University of Padua. This In Focus article is an excerpt from her master thesis discussed in March 2020 under the supervision of Prof. Sara Pennicino.
Today’s political situation in Europe is worrisome. Considering the recent developments, the political populist radical right (see e.g. Mudde, 2010, Rydgren, 2007) has arguably been having its heydays for the past five years at least, not only in Europe but also worldwide. The major preoccupations possibly derive from the fact that, even in the countries boasting the most long-standing democratic tradition, we are witnessing a raise - in number and, most importantly, public legitimacy - of political movements and parties that, notwithstanding their general acceptance of procedural democracy, aspire to the concretisation of ideals which «in many ways» run «counter to the pluralistic values of liberal democracy» (Rydgren, 2007: 243) - thus potentially corroding democracy from within, subtly.
This article analyses the reactions to such processes in the context of three out of the five Nordic countries (generally considered liberal democracies par excellence): the Scandinavian countries, i.e. Norway, Denmark, Sweden. The heart of the matter is: what kind of protection (if any) do the Scandinavian legal systems envisage for the democratic order they stand for, in view of challenging times as those we are living today?
This question is better answered by comparing the rather old Danish Constitutional Act, the younger Swedish Fundamental Laws and the youngest Norwegian Constitution, and related ordinary legislations. The topical focus is on freedom of political association and freedom of expression. Particular attention is paid to the possible presence of constitutional or ordinary legislation specifically targeting “hateful speech” or banning political parties. These measures, typical of “militant democracies”, are understood as limits to said fundamental freedoms for the sake of others’ dignity and rights and, more generally, aim at safeguarding a liberal democracy’s tolerant, pluralist, non-discriminating core.
The Scandinavian countries are often pictured as symbols of peaceful and well-governed democracies, by the external observers and at least one step above the rest of the European context, possibly considered as models to take inspiration from. Consistently ranking among the most pacific countries, displaying high development levels, strong economies, low corruption levels, one of the most advanced welfare state systems, elevated levels of social cohesion and stability, upholding human rights to the most elevated standards (Husa et al., 2007; Krunke et al., 2018), it is not hard to find a substance to their perceived extraordinariness. Their constitutional systems and societies are built upon a solid substrate of fundamental principles (e.g. transparency, tolerance, humanitarianism, pluralism, non-discrimination, rule of law), and on a quite unique conception of democracy: the State is essentially at the service of its citizens who, in turn, profoundly trust the State and its institutions - see the almost unquestioning confidence in their Parliaments, considered the essential representatives of democracy itself and, thus, the supreme interpreters of law constitutionality (Smith, 2018). Adding the decades-long predominance of social-democratic governments to the equation, it seems legitimate to wonder why the populist radical right has conquered, if not yet a political majority, at least a stable position at the forefront of the electoral stage.
Populist radical right parties have succeeded in establishing themselves outside of political niches as increasingly influential political forces. As a result, despite fluctuating electoral fortunes, the Norwegian Progress Party, the Danish People’s Party and the Sweden Democrats have consistently ranked among the top three biggest parties in their countries for the past ten years at least (even supporting their respective governments in Norway and Denmark), experiencing a consolidation in the levels of electoral support, legitimacy and popular consensus even more decisively during the past five years. Actually, these parties represent nothing new in the Scandinavian political landscape: their histories date back up to the 1970s, but they started to gain electoral terrain after the 1980s-1990s, then onward and upward during the following twenty years. The real novelty is the extent of their electoral appeal and influence on the perception of political priorities’ saliency (Widfeldt, 2018). The ideas these parties are inspired by collision rather strikingly with the values the Scandinavian identity is rooted in, thus contributing to shape an ideological and political milieu bearer of non-negligible challenges - resulting in e.g. rising nationalism and xenophobia, manifestations of intolerance, laws shrouded in illiberalism and anti-pluralism, weak solidarity at the European level, and so forth. How are the constitutional systems of the Scandinavian liberal democracies equipped in view of potential challenges such as these?
Freedom of expression and of (political) association are arguably the exterior concretisation of the essence of a country's democratic identity. As universally recognised human rights, they find extensive protection under international and regional conventions (e.g. UDHR, 1948; ICERD, 1965; ICCPR, 1966; ECHR, 1953). Their centrality has consistently been underlined by the European Court of Human Rights (ECtHR) throughout its caselaw: weight-bearing columns of any democratic system and society. They are indispensable for both the self-development of each individual and the formation of tolerant, diverse, and plural societies (Handyside, 1976).
Through its caselaw, the ECtHR has probably developed, at the international level, the most significant body of recommendations and standards on freedom of expression and on those particular types of associations that are political parties, including on political parties State bans (ECtHR Press Unit, 2016). The Court has clarified that the demands of a democratic society can only be satisfied if both freedom of expression and the presence of diverse (political) associations are guaranteed, especially referring to ideas or information that offend, disturb, and shock (Glimmerveen and Hagenbeek, 1979; Garaudy, 2003; Norwood, 2004), and to political associations that may promote a change in a State’s constitutional structures (United Communist Party of Turkey and Others, 1998; Refah Partisi and Others, 2003; Herri Batasuna and Batasuna, 2009). Nonetheless, these rights are not absolute limitations to their enjoyment are allowed under well determined conditions - threefold test (legitimacy, legality, proportionality), plus, e.g. art. 10(2), 11(2), 17 ECHR. However, any restriction on such fundamental freedoms must be construed strictly, for only compelling reasons can justify it, especially when said restrictions are of a particularly strong nature, such as political party bans or dissolution of political parties(ECtHR Guidelines, 2019).
The Scandinavian countries follow the international understanding of these two rights. Besides the specificities in their constitutional interpretation, Denmark, Norway and Sweden all uphold high the value of freedom of expression and of freedom of (political) association by dedicating to their protection ample space in their respective Constitutional Acts - art. 100, 101 Norwegian Const. and art. 77, 78 Danish Const. Act. Sweden was even the first country (in Europe at least) to dedicate an entirely separate Constitutional Act exclusively to freedom of expression via the press (the 1949 Freedom of the Press Act, first adopted in 1766) to which, later on, two more were added: the Instrument of Government (1974, first adopted in 1812) and the Fundamental Law on Freedom of Expression (1991).
In limiting these rights, it appears that the Scandinavian countries do not operate following the same idea of “militant democracy” that can be found in other European countries such as Germany, France or Italy (Frosini and Pennicino, 2017). This means that neither the constitutional nor the ordinary legislation norms (Criminal Code, mainly) setting restrictions to these rights envisage any application, interpretation or limitation specifically tailored for cases of potentially dangerous political parties - not even extremist groups such as neo-Nazi or neo-Fascist. Let’s consider some examples from the Criminal Codes: they contain norms directly (Norway) or indirectly (Denmark, Sweden) criminalising “hate speech” acts - i.e. Denmark: art. 266b on “group defamation”; Norway; art. 185 on “hate speech”; Sweden: art. 8 Ch. 16 on "agitation against a population group”. However, none of them seems to envisage measures as drastic as preventive political party bans. All (political) associations can be formed, but their members can incur criminal liability if so established by the law. Only art. 78 Danish Const. Act allows for permanent or temporary dissolution of political associations as well, not preventively banning any of them though (and never applied so far). The approach generally preferred would rather seem to be that of seeking to punish whatever unlawful acts or utterances the possible political party or party members may commit, if they occur. Alternatively, other strategies tend to be adopted to defend a certain set of values from possible threats posed by political actors, e.g. electoral thresholds, preventive talks, and political strategies like “demarcation” (Mudde, 2019; Widfeldt, 2018).
The Scandinavian courts’ caselaw clearly mirrors these findings: these courts have often been called to judge on cases regarding hate speech, or otherwise discriminatory, defamatory, and degrading utterances, demonstrating the willingness of the relevant national authorities to prosecute and convict such acts (Kjuus case, 1997; Jyllands-Posten case, 2005; Åke Green case, 2005). Being often hard to strike a fair balance between competing interests when such essential rights are at stake, a number of cases have even been brought before international adjudication fora like the ECtHR (e.g. Jersild, 1994; Vejdeland and Others, 2012) or the CERD (e.g. Boot Boys, 2003). However, none can be found regarding preventive bans, or ex-post dissolution, of political parties. This may well be due to the fact that no cases have been published, but it is more likely because no ban against specific political parties is envisaged by these countries’ legislations.
It appears that, in safeguarding their democratic core, Scandinavian countries do not operate following the same “militant” approach that other liberal democracies adopt. This conclusion actually opens to further questions and inserts this article in a broader debate.
Indeed, it remains challenging to strike a fair balance between competing interests when fundamental rights are at stake; hence such decisions should not be political or made by political institutions, which may risk leaving a too wide margin of appreciation depending on the general political mood the moment. However, in the Scandinavian countries, the Parliament plays the role of both legislator and primary interpreter of law constitutionality. From an outside perspective, it is not easy to be pacific with the idea that in these countries individuals “simply” rely on the awareness that their Parliaments will always act according to the democratic values each one of their members is culturally educated to respect. In the light of the populist radical right’s increasing success, why do not the Scandinavian democracies feel the urgency to adopt more “militant” strategies to defend themselves?
Some scholars suggest that one of the elements characterising northern European societies is conformity, «which […] includes a high trust in state actors and institutions», and even «the most intolerant people [are] also the most conformist» (Mudde, 2016: 120). Conformity, together with a sort of automatic self-censorship applied by each citizen where it may be felt necessary, would have then contributed to render the Nordic countries among the most tolerant worldwide. Relying on that, it may be that the legislative power has never experienced a pressure so strong to feel the need to adopt legislation banning specific typologies of parties, not even the most extremist. This also relates to that general sentiment, apparently characterising these societies, of essential trust in the choices of the majority and in the fundamental righteousness of their Parliaments, hence somehow unquestionably assuming that they would never let their countries take a truly illiberal turn.
More generally, it may be that the Scandinavian countries find themselves rather aligned with the idea, also expressed by the ECtHR, that dissolving or, more drastically, banning a political party represents a measure of very last resort, thus preferring a more “reactive” approach or adopting alternative political strategies to defend their essence from possibly dangerous political actors - e.g. isolating the unwanted political parties. The problem with populist radical right political parties, even in the Scandinavian countries, is that the ideas they promote are catching on among the electorate; the language through which they frame salient political issues is being also used by the political mainstream, both right and left-wing; and they have grown sufficiently to weigh on the balance between the governmental majority (or minority) and governmental opposition (e.g. BBC, 2020).
Hence, the analysis of the Scandinavian countries’ approach to freedom of expression and freedom of political association provides food for thoughts and opens to a more general reflection on, possibly, one of the more crucial conundrums that liberal democracies are called to face, somehow a “catch-22” question: how to avoid weakening their very core principles while defending themselves against possible threats embodying values opposite to the liberal democratic ones?