The significance of the doctrine of proportionality in the context of militant democracy to protect the freedom of expression

Abstract

This study is about the dilemma whether democratic societies are justified in employing militant and repressive actions in defence of their democratic futures. Anti-terrorism laws enacted by these societies have been roundly criticised for curtailing and even violating fundamental human rights and freedoms. The research argues that the concept of ‘militant democracy’ provides a justification for these anti-terrorism laws and the security of people in democratic societies. It suggests that the European Court of Human Rights (ECtHR) has adopted this concept by providing a latitude to State Parties to protect their citizens against terrorist threats, thereby allowing them to create laws to limit certain human rights and freedoms. In essence, the research sets out to examine if there is a way to ensure that antiterrorism laws, legitimized by militant democracy, can continue to safeguard human rights and freedoms in democratic societies. It focuses on the application of ‘militant democracy’ and the application and utility of the ‘doctrine of proportionality’ in the UK judicial system. It views the doctrine of proportionality as a tool in the judicial review process, which checks the balance between “the interest of the society and the rights of individuals. In this respect, it examines some of the key components of proportionality to ascertain if it could alleviate the shortcomings of the UK legal system, which have been attributed to its long-term application of the Wednesbury “unreasonableness” principle. It is of vital importance since the ECtHR for human rights violations has on a number of occasions found the UK legal system liable. This research finally evaluates whether the doctrine of proportionality should be integrated into the UK legal system.