The democratic state is a social value that deserves and demands protection in criminal law. Dissolution of the democratic regime is a direct and immediate violation of the fundamental rights of its citizens, which creates a basis for the continuous and tone infringement of the rights of those living under an undemocratic regime. The protection of a democratic regime derives from the protection granted to its citizens; the individual can only maintain and exercise his fundamental rights within a properly functioning physical and political framework.
Offences against the democratic regime include: revolutionary activity, including attempts and preparations for a revolution, as well as the establishment of an organization and participation as a leader or member in an organization whose aim is the use or the threat of the use of force to establish or change the system of government, to destroy or to harm a government institution, or to unlawfully harm the proper constitutional functioning of the institutions of a government.
An activity that harms or endangers the organizational and functional structure of the democratic state with the aim of destroying it or its institutions is a very dangerous activity. Such activity might include revolution, i.e. activities that prevent the state`s institutions from performing their constitutional duties. The dangers and the criminal nature of a revolution derive from two cumulative factors: the severity of the objective – to harm the democratic state – and the element of association for this purpose. Proper protection of the democratic regime requires prohibiting acts including attempts and preparations for a revolution; the sentence for acts of preparation should be at half of the maximum sentence prescribed by law for revolution and attempted revolution.
The establishment of an organization and participation as a leader or member in an organization whose goal is the use or threat of the use of force against the democratic regime and its institutions are a criminal phenomena and offence; such organizations are unconstitutional party and unlawful organization against the regime. Prohibited is the active, not passive, membership, i.e. intensive participation in activities to advance the purpose of the organization.
The use and threat of the use of force against a state institution (e.g. the Parliament, the Government or one of its members) with the objective of influencing its functioning or his or her performance, is a special and more serious – although more limited – from the regular phenomenon of extortion. Extortion of state officials while acting in an official capacity could harm the entire public or, at least, a large sector of the public. Nonviolent strike do not fall within the bounds of grave actions that state officials are unable to withstand, and therefore, does not fall within the scope of the offence.
Offences against the structure and functioning of a regime, such as sedition, are political crimes ensuing from conflict between the perpetrator of the offence and the political regime of the state. Democracy in government is a vital social interest that deserves and demands legal protection. The protection of democratic forms of government is a corollary of the protection granted to citizens of the state. It is designed to enable the state to perform its duty to protect the fundamental rights and interests of the citizens of that state. Thus, protection of the democratic system and its functioning is a means to achieve the supreme goal of protecting the individual. The individual can only maintain and exercise his fundamental rights within a properly functioning democratic framework. The dissolution of democracy directly and immediately violates the fundamental rights of the citizens and creates a basis for the continuous and tone infringement of the rights of those living in the non-democratic regime. Therefore, subversion of the political framework harms the state`s ability to act on behalf of its citizens.1 There can be no doubt that society’s interest in protecting democracy is of vital importance.
This article will discuss de lege lata and lege ferenda of offences against the democratic regime, i.e., harm to the structure and functioning of the democratic regime.
The development of the offense of sedition in English common law has influenced the development of the offense of sedition in modern English, Canadian, Australian, Israeli and even American law. The offense of sedition in English law was created and shaped by case law.3 The offense was born within the monarchical system of government where to rule was perceived as a right vested in the King. The equation of the political entity with the royal family, many years before the emergence of such concepts as ‘peoples’ and ‘nations’, resulted in very few activities being accepted as legitimate opposition. Political opposition falling outside this narrow field was labeled ‘treason’. Legislation enacted in 1351 went so far as to prohibit a person from scheming or even imagining the death of the King, Queen, or the King’s eldest son, the heir to the throne. Naturally, any act accompanied by such intention was prohibited. The law also protected governmental functionaries (including judges), and prohibited any act that could infringe the royal family honor, title or governmental authority and rights, or violate the dignity of women belonging to the royal family.4 It is generally accepted that the origin of the offense of sedition in modern English law lies in the 1275 statute forbidding insults against public officials (scandalum magnatum). Following the abolition of the Star Chamber by Parliament in 1641, the jurisdiction to deal with, and indeed develop these offenses, was transferred to the ordinary courts.
Towards the end of the 19th century and with the beginning of the influence of currents of political thought supporting democracy, a certain change occurred in the formulation of the offense of sedition10 – primarily led by the courts. In the Burnes case,11 the court acquitted a labor leader who had been charged with sedition after giving a fiery speech at a massive demonstration in London, where he had called for a review of government policy towards the unemployed. When instructing the jury, the judge ruled that in order to prove the elements of the offense of sedition, it was necessary to show that the act was intended to lead to hatred, contempt or hostility towards the regime, or alternatively was intended to cause political or social changes through illegal means. The court emphasized that for a conviction to be obtained it had to be proved that the content of the expression and purpose of the speaker were directed at bringing about violence.
In terms of the mental element, the English offense of sedition requires intention on the part of the perpetrator: “Any act done … with a seditious intention”. The intention relates to the final purpose of the act, that is, the social consequences which it can cause and by reason of which it is prohibited.
The definition of sedition in Israeli law26 is identical to the definition given to the term in English law; however, while the minority view in Israeli law – similar to the position in England – is that the offence of sedition is only designed to protect the regime, the majority view holds that the offence of sedition is intended to protect public order, in the sense of public unity.27 Like in England, harsh criticism has been voiced against the offences of sedition in Israeli legislation and both the case law and the legal literature have argued that these clauses are an archaic remnant of the British Mandate, having originating in the common law of earlier centuries and contradicting fundamental principles of the democratic regime, criminal law and constitutional law.
Thus, for example, the Supreme Court of Israel held in the Kahane case: “The language of the offence is too vague and its boundaries are too broad. It reflects a world view which is not democratic. It is compatible with a Mandatory regime, which is not the government of the people, by the people, for the people. It does not give sufficient weight to freedom of expression.“28 The broad and vague boundaries of the offence of sedition can be misused by the state prosecution service or, at the least, might lead to a false conviction. An example can be seen in the Aliyya case decided by the Supreme Court, where the appellant, a Palestinian resident of the West Bank, photocopied flyers calling for a general strike. The Supreme Court ruled that:“a strike by the Arab population causes great damage to both property and people in the state and, in my view, the call to institute a one-day general strike is as serious as calling upon children to rise up against the state, throw stones against soldiers and passers-by and cause damage to vehicles traveling on the roads, thereby endangering human life.”29 Another relevant judgment is Anabtawi v. State of Israel,30 the circumstances of which were as follows: during the Gulf War in August 1990, in a drunken quarrel with a neighbor, Anabtawi shouted “kill the Jews… I will bring Saddam Hussein to kill you…I will bring an intifada upon you”. Anabtawi was convicted in respect of these statements for the offence of publishing acts of sedition and was sentenced to two years in prison. There is no doubt that the offence of sedition was never intended to apply to such a situation, namely a drunken dispute amongst neighbors where the statements were devoid of any potential political impact.
Canadian law absorbed the common law offence of sedition and defined the anti-regime acts which would be prohibited in Chapter II of the Penal Code, with some of the acts falling within the scope of the offence of treason and others within the scope of sedition. The offence of sedition prohibits acts made “with seditious intention”; however, no comprehensive definition is given of the term “sedition” and Section 59 states that a person who carried out one of the following acts will be deemed to have met the requirement: “teaches or advocates, or publishes or circulates any writing that advocates the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada”. Acts of sedition are “seditious words, seditious libel and seditious conspiracy”. Of particular importance is the Boucher judgment31 which, as noted, had an impact on the interpretation of the term “sedition” in English law.32 The defendant in that case was a member of the “Jehovah’s Witnesses” religious sect; he had distributed pamphlets sharply criticizing the treatment received by members of the sect, their persecution by the authorities, the attacks committed by large groups against individuals for proselytizing in certain neighborhoods, the fact that members of the sect had been convicted of breaches of the peace when in fact the driving force behind those convictions were members of the Roman Catholic Church. The charges against the defendant asserted that the distribution of the pamphlets could create hate and discontent between the members of the “Jehovah’s Witnesses” sect and those who were not members of the sect. The court ruled that sedition was a crime against the regime only. “Neither language calculated to promote feelings of ill will and hostility between different classes of His Majesty`s subjects nor criticizing the courts is seditious unless there is the intention to incite to violence or resistance to or defiance of constituted authority”.
Another case concerned Sharkey, Secretary of the Australian Communist Party. A journalist asked Sharkey in a telephone interview what he would do if Soviet troops landed in Australia –would he take the same position as that expressed by the leader of the French Communist Party, namely, join his communist colleagues and welcome the Soviet forces? Sharkey answered that such an event was not realistic because communism taught peace and the prevention of War, and that the Soviet Union would only go to War if attacked. In such a case the local workers would welcome the Soviets in the same way as they had welcomed them in Europe when the Soviet troops had liberated European nations from the yoke of the Nazi regime.37 In another case, a communist was convicted of the offence of sedition because of statements he had made about the Korean War and decrying Australia’s military involvement and assistance to South Korea.38 In all these cases, the courts convicted the defendants in unreasoned judgments, simply holding that the requirements of the offence of inciting sedition had been met, and as to the defendants’ mental state- that the offending conduct had been accompanied by the intention to cause violence or create public disorder or a public disturbance.
The prevailing view in Australian law is that the scope of the offence of sedition is both extremely broad and vague because it is satisfied with the “tendency” of the publication to breach public order, while the Australian courts – unlike the American courts –have failed to develop probability tests designed to protect freedom of expression, such as the “clear and present test” or “imminent lawless action” test.39 Moreover, the fact that the offence of sedition is worded in a broad and vague manner has allowed it to be used for illegitimate purposes and exploited for political repression and to achieve political convictions, as can be seen in the Burns and Sharkey examples described above. In the past, the offence of sedition was used to target communists, who were indeed convicted, even though an intense political debate was being waged at the time in which politicians from the ruling parties and journalists supporting them had made similar or even more serious statements, but were not prosecuted.
English law,47 Canadian law,48 Australian law49 and Israeli law50 allow the defence of good faith according to which legitimate criticism, legitimate political activity and the like are not deemed to be seditious purposes, even if they prima facie come within the definition of sedition – where the sole purpose of the publication is to correct a fault or defect in the work of the regime. The “Truth” is not a defence to the offence of sedition.
The prohibition of publications capable of exciting hatred, contempt or disloyalty towards the authorities of the state, or a publication capable of exciting dissatisfaction, disaffection or enmity among the public – are the result of an undemocratic regime and can be understood against the background of such a regime, which does not attach importance to freedom of expression. These prohibitions have no place in a democracy. The defence to criminal liability of (good faith) legitimate political criticism is incapable of removing the defect and saving the criminal prohibition. Defences are intended to negate the wrongful character of an act harming a protected social value. When an act does not cause any harm to a protected social value there is no room for a defence. Moreover, the broad and vague scope of the sedition offence allows, and indeed in the past allowed this provision in English, Israeli and Australian law to be used as a political weapon and as a means of suppressing political views.51 The prohibitions against sedition are contrary to the basic principles of criminal law, constitutional law and the values of a democratic regime, and therefore they must be repealed.
Thus, an examination of the characteristics of the democratic regime shows the existence of three sources of power and authority which are the fundamental elements of the democratic regime: all the individuals (the public), the political government (the government) and the framework of rules which regulate the relationships in society (the law). A complex relationship exists between these fundamental elements. In a democratic system, the individuals comprising society possess the fundamental power; in the deep sense of this concept they are the founders of the government and the law, as the source of the sovereignty of the state and the power of the authorities and the government depends on the citizens. This relationship between individuals and the government is made possible by means of rules of action at the heart of which is the grant of equal opportunity to all the individuals to influence the collective decision-making process.
Modern legal and political literature has expressed a different approach to democracy which is more far reaching than that described here. According to this approach, the public in a democratic regime is subject to a system of values and basic principles of the democratic political structure itself. These values and basic principles primarily include such elements as the separation of powers and the independence of the judiciary, as well as basic rights such as human dignity and liberty, freedom of expression, equality and the like – values and basic principles which are not established by the public and are not subject to change in accordance with the transient feelings of the time. As the system of democratic life is subject to universal basic principles, it is conducted within the boundaries of a system of values where the source of its validity is external to the political system and is not determined or examined by means of the democratic process.57 The basic system of values is not constituted in a democratic way and does not draw the justification for its existence from the consent of those being governed; this system of values sketches the boundaries of the democratic activity and provides the primary source of its legitimacy. Accordingly, the basic democratic principle is not the sovereignty of the citizens or the rule of the majority but rather the hegemony of the basic system of values. This principled system can also include the presumption that there is value to the very existence of a democratic regime which is not subject to the democratic system. This perception is different from the perception of democracy as unlimited sovereignty of the citizens, because under it the democratic regime is committed to preventing a situation where democratic decisions of the majority can change the very nature and character of the democratic regime. In order to prevent this situation of eradication or upheaval of the democratic system of government, this theory described the democratic regime as subject to an absolute system of values, which is not subject to rescission or change and is not dependent on the will of the public, whatever its size. This is the basis of the doctrine of a “fighting and defensive democracy”.
The modern theory of democracy may also be characterized by the fact that the system of absolute values underlying it is founded on the existence of the citizen as an equal between equals in society and one who possesses basic fundamental rights. It follows that this system of values does not fall outside the boundaries of the democratic system but within it – by means of the human beings who are members of it. Thus, for example, basic rights the validity of which is not dependent on the agreement of the public stem from the person being a human being, a social person and one who possesses independent existence. This is what leads to the approach towards basic human rights as “natural” rights, that is to say, rights originating in natural law. In the democratic regime which regards man as the goal and society as consisting of individuals who hold the powers of government, the basic rights of the individual and of the minority lie at the heart of the democratic ideal. It follows, that the perception of democracy (substantive, in contrast to formal) is inherent in man and his humanity, in the system of values which he represents, in his natural traits such as his sense of justice, and his basic rights such as freedom and equality. In this sense, the system of values of the democratic regime does not fall outside the system of values of the citizens.58 According to this view, the individual, like the public as a whole, in not entitled to waive his basic rights – just as the individual is not entitled to sell himself as a slave, so too the public is not entitled to waive its freedom. An autonomous decision of the moment – the moment of waiving the basic principle of a democratic regime – cannot supersede the autonomy of permanence, which is maintained and preserved by means of the democratic regime and is negated in a totalitarian regime.
Moreover, a democratic regime which is implemented in a particular society includes this system of values, as it is expressed in the social contract. From this point of view, the system of values is dependent on the will of the public as a whole and not the will of the majority of the public only, and accordingly its modification or abolition require the consent of the entire public.
This is why it is essential for government entities to make an account to the public, and why governmental actions must be transparent. The democratic regime is differentiated from every other type of regime (for example, a dictatorship) because it is a form of transparent politics: the political power and the acts of the governmental institutions must be open to the citizen. Opening political power and making the use of it transparent underlie the legitimacy of the democratic government, which is not entitled to act arbitrarily but only as trustee of the public, acting at its behest and for its benefit. Likewise, by the very nature of democratic government as transparent politics it is subject to the scrutiny of the citizens, as the eye which sees political power and its usage, places it in fetters. Visible power is limited and scrutinized power, and those who hold it are not free to use it arbitrarily. Without the act of continuous review citizens would be precluded from having an educated impact on the course of government and the figures leading it. Both the functioning and the legitimacy of the democratic regime stem, therefore, from the existence of a power scrutinizing the government. The expression of criticism, protest and opposition to the activities of the government form part of the essential elements of the democratic regime.
Offences against the regime are intended to protect the democratic regime in so far as the regime itself is deemed to be entitled to or worthy of protection by means of the criminal law. On the one hand, one may not allow the advantages offered by democracy, in terms of rights and freedoms, to be exploited in such a way as to undermine the pillars of the democratic regime and destroy it.61 On the other hand, of course, democracy cannot be protected in ways which might cause harm to the essence of democracy itself, namely, the democratic way of life. In contrast to dictatorships, democracy does not sanction every means taken to achieve a worthy purpose, and it is characterized by the cautious and measured choice of the means which it adopts. It follows that the choice of the means to be used to protect the democratic regime must also be compatible with the democratic nature of the regime. The primary difficulty remains the characterization of the boundaries between behaviour which democratic principles should tolerate, behaviour which should be condemned and fought against by means of the political, educational and cultural system, and behaviour which should be prohibited by criminal law on the grounds of the need to protect the democracy.
Which are the forms of behaviour which can and should be defined as criminal offences against the regime?
One of the most serious and dangerous phenomena facing the democratic regime and its institutions, and indirectly also society, is the performance of acts which harm or endanger the organizational and functional structure of the democratic regime with the aim of overthrowing the regime or its institutions. Next, we shall consider acts which clearly fall within this category.
Revolution means harm to the structure of the regime, in our context – the democratic regime, by means of its abolition or destruction by violence, starting with negating its ability to act and ending with it being replaced by another regime.
The democratic regime is an essential social value, and therefore its protection by means of the criminal law is justified and even critical. The critical nature of this protection stems both from the huge scope and nature of the expected infringements of basic rights as a result of the harm to the democratic regime – varied, harsh and persistent infringements – and the difficulty (and sometimes impossibility) of restoring the democratic regime.63 Clearly, until the restoration of the democratic regime, if this is possible (whether by civil revolution as occurred in Greece, or by the death of the undemocratic ruler as occurred in Franco’s Spain, or by the voluntary retirement of the undemocratic ruler as occurred in Chile), very serious damage may occur to society, including great injury and loss of human lives.64 Revolution is a dangerous phenomenon which is prohibited by all systems of law.65 Revolution draws its dangerous character and criminality from two cumulative factors: the purpose of the conspiracy (harm to the democratic regime) and the building of an organization for that purpose.
The second component which accords the revolution its particular gravity is the association of a group of people in order to achieve the stated purpose of harming the regime. In relation to the offence of revolution, it is difficult to imagine a situation in which an individual can act to change the structure of the regime by unlawful means in such a way as to endanger the regime – overthrowing it or preventing it from operating. In practical terms, it seems unrealistic to assert that an individual can engage in revolutionary behaviour which harms the structure of the regime. The origin of the approach whereby the act of an individual can be regarded as forming the offence of harming the structure of the regime lies in the perception of the regime as belonging to a single all-powerful ruler, who is identified with the regime itself. In such a case, physical harm to the ruler, which in practice can be carried out by a single person, comprises an offence against the regime. At the same time, in a democratic regime there is no identity between the regime and the physical person who officiates in a governmental capacity, and therefore causing harm to a person holding a democratic-governmental position will not necessarily comprise an offence against the structure of the regime. An attempt to harm the structure of the regime can be realistic, practical and dangerous if it entails the association of a number of people gathering for this purpose. When a number of people take violent action or threaten the use of force which is directed against the democratic regime by attacking its institutions, these acts fall within the framework of revolution aimed at changing the political regime.
As noted, the criminal prohibition on a revolutionary act prohibits causing harm to the structure of the democratic regime by overthrowing it or destroying it through violent means. It is possible to define a successful revolution as a completed criminal offence and therefore an attempt to commit it is prohibited by the penal law. It is noteworthy that according to the modern view inpenal law, the penalty for an attempt is identical, at least from a normative point of view, to the penalty imposed for a completed offence. In our opinion, this is not a proper definition of the offence of revolution. The case of revolution requires and demands a different approach.
Criminal proceedings only become possible70 should the previous regime be restored.71 Practical logic dictates that one should not rely on the likelihood of this happening. Accordingly, both from the point of view of sending a message of deterrence and from the point of view of enforcement policy, it is justifiable to characterize the prohibition of revolution as including attempted revolution and not only as a completed revolution. The effectiveness of the prohibition lies primarily in the prevention of attempted acts.
Generally, preparatory acts performed by an individual are not punishable74 – one reason is that the risk posed by such acts is distant; another more important reason is that an individual performing preparatory acts has not yet crossed the Rubicon from the point of view of the decision to commit the offence. Ultimately, this decision is tested by the commission of the act itself, and when a single individual is involved, it is more likely that he will refrain from actually executing the plan. The potential risk posed by a group of people associating in order to commit a criminal act (and in particular a grave criminal act) is more serious and dangerous than the potential risk posed by a single person, in particular because of the difficulty in withdrawing from a group, the members of which are mutually committed to the desired goal. Conspiring – or at least conspiring to commit a serious offence – is a prohibited criminal act. In addition, for the purpose of the offence of revolution, the need to prevent a regime of arbitrariness, repression and subjugation justifies the broad blanket of criminality.75 These considerations justify a distinction being drawn between completed and attempted acts of revolution, on the one hand, and the preparations taken to commit the revolution, on the other hand. When the preparation is not supported by an organization possessing a revolutionary aim it is highly likely that the act will be unsuccessful, and even regarded as eccentric. In order to fulfill the element of the offence, which carries with it a severe penalty, it is also necessary to show proof of real organization and present the preparatory acts in a realistic light.
Thus, alongside the prohibition of a completed act of revolution and attempted revolution there is also room for prohibiting acts which are preparatory to a revolution.
As noted, attempt and preparation to harm the regime are defined as complete offences. Accordingly, the doctrine of remorse [Rücktritt] as a general exception to criminal liability in European and Israeli law – relevant only to cases of attempt – does not apply.81 However, there is no logic to the non-application of the doctrine of remorse to the completed offence, when we are considering acts of attempt which are defined, in substantive terms in the law, as a complete offence. The definition of attempt as a complete offence need not hamper the application of the doctrine of remorse to acts of attempt, because in both cases the same rationale applies to the element of remorse.82 In particular, it is worth emphasizing the importance of the rationale whereby it is advisable to encourage those who intended to engage in offending behavior to retract. This is particularly important in the context of the offence of revolution. Moreover, if the doctrine of remorse applies to acts of attempt, which create a concrete or direct danger to a protected social value, then a fortiori it must apply to acts of preparation, which create a solely abstract danger.83 Likewise, if case law applies the exception of remorse to the offence of conspiracy84 then there is certainly justification for the exception of remorse in the situation under discussion here.
In this issue, the tension between the desirability of providing incentives to withdraw from criminal conduct and the need to provide the police and security services with an operational space in which to prevent serious harms should be mentioned and emphasized. Withdrawal from criminal conduct does not negate the unlawful and anti-social character of the committed act, but comprises a different type of act which thwarts or eliminates the danger posed by that criminal act. In other words, as long as the perpetrator has not taken steps to thwart the risk posed by the actions previously performed by him, the phenomenon remains criminal and the police and security forces have the right and duty to intervene and prevent the realization of the danger inherent in the dangerous acts. In contrast, the moment the perpetrator performs additional later acts that block the danger posed by his actions, intervention by the police and security forces is not needed to prevent the realization of the danger – which does not yet exist; police intervention in such a case is possible for the purpose of examining the existence of the conditions for withdrawal from criminal conduct that give rise to a defense against criminal liability.
Another preliminary act which it would be justified to criminalize is participation in a revolutionary organization.
When the association entails a concrete plan to perform revolutionary activities, there is room to weigh the offence of revolution; however, even if the association is not accompanied by a concrete plan as aforesaid, there is justification for prohibiting it by reason of the abstract risk of harm which it poses to the protected social value (the democratic regime). The gravity of the purpose (destruction of the democratic regime by the prohibited means of the use of violence or threat of violence) as well as the gravity of the phenomenon of association and its special dangers justify punishment at the early stage when the abstract risk of harm to the regime first arises. The greater the importance of the protected value, the lower need be the risk of it actually occurring.
When we are considering an organization which is a substitute for an unconstitutional party, a declaration that an organization is a substitute organization has a purely declarative function. In other words, the party which is a substitute for the unconstitutional party is unconstitutional by its very nature (ex tunc), and therefore there is justification for trying the people belonging to this association without an additional declaration that the party is a substitute. The view which holds that the declaration has a constitutive function, so that the substitute party and its activities are regarded as unlawful only upon a declaration being made, is illogical and even harms the democratic regime. Such a view will lead to the endless creation of parties to substitute for unlawful parties.
Active membership in an unlawful organization is an anti-social phenomenon and ought to be prohibited. The anti-social element in it stems from the fact that it helps to maintain the unlawful organization which endangers the regime and enables it to operate. Like the term “leadership”, the term “membership” is substantive and not formal; therefore, it is essential that the membership be accompanied by active and effective action on behalf of the organization. Passive membership, which is expressed by the agreement to join the organization, ought not to fall within the scope of the offence because the risk posed by such membership is negligible.101 Likewise, it may be that the act of joining the unlawful organization or refraining from leaving it, stems from the fear of the reaction of others, momentary weakness or the desire to be approved by others or impress others;102 refraining from leaving may also be the outcome of forgetfulness to leave or failure to attribute importance and significance to the membership.
Use of force and the threat of the use of force are phenomena which are unlawful per se, but when the use of force and the threat of the use of force are exercised against government officials whilst acting in their official capacity, the wrongfulness is twofold, as it also harms the functioning of the institutions of government.
Use of force and the threat of the use of force against government officials, such as members of parliament, with the aim of causing them to exercise their powers (in general or in a particular way) or refrain from exercising them, impairs the freedom of decision and freedom of action of the government officials, who are supposed to act in accordance with their conscience and discretion using their best judgment within the framework of their powers. In a regime which is a representative democracy, such harm also amounts to a distortion of the will of the electorate.106 Certain systems of law distinguish between the use of force or threats against government institutions as an organ (for example, imprisoning all the members of government with the object of forcing them to make or reject a particular decision) on the one hand and the use of force or threats against members of a government institution on the other hand. Thus, German107 and Austrian108 criminal law distinguish between influencing the freedom of action of a constitutional organ by force or threats (as a more severe offence) and the exercise of force or threats against the members of that same organ (as a lesser offence).
The question which must first be examined in this context is whether a special prohibition should be assigned to the phenomenon of the exercise of force against a government official as an individual in a government institution, or whether this phenomenon can be handled by means of the offence of extortion in the penal law.
In our opinion, extortion of government officials while engaged in their official business is an offence against the regime. It is more serious than ordinary extortion but on the other hand should also be defined more narrowly than ordinary extortion.
The phenomenon of ‘ordinary’ extortion relates to harm to the freedom of decision making and freedom of action of the individual. The direct social harm which it causes is generally confined to the victim of the extortion. In contrast, extortion of government officials while they are fulfilling their government business harms the proper functioning of the institutions of the democratic government by virtue of the very intervention in the exercise of the officials’ discretion and the introduction of extraneous considerations. It forces a conflict of interest upon decision makers making them incapable of acting properly. The decisions which the government officials make relate to the public as a whole or at least to a sizeable part of it, and therefore the prohibited influence on the officials’ decision-making may cause serious harm to public life, when the injured parties may be the whole or a section of the public. This is therefore a special offence which protects an interest which is different from that of ‘ordinary’ extortion.
The comparison between the prohibitions leads to an additional conclusion: the offence of extortion is intended to protect the freedom of decision making and freedom of action of every person, including in particular weak and vulnerable people who require special protection.109 It is justifiable and even essential to prohibit threats which are not necessarily grave in themselves, for example, a threat to a person’s honour or privacy. It is appropriate to assume110 that government officials are not “weak people”. Our expectation of government officials is that they will stand firm in the face of threats which are not particularly severe and will not be influenced by them. As an example, take a threat made against the speaker of the parliament that unless he exercises his powers in a particular way, an embarrassing personal affair will be exposed. The speaker of the parliament is expected to stand firm in the face of such a threat even if implementing the threat might harm his honour and reputation.111 The privacy and honour of government official are protected less than those of private individuals, and therefore a threat to harm them does not possess a sufficiently anti-social element to justify discrimination in favour of the official, particularly if the threat is made within the framework of a struggle for a political position (from the point of view of the person making the threat).112 Accordingly, and as may be seen from a comparative law analysis,113 the definition of extortion of a government official as an offence against the regime ought to be narrower than ‘ordinary’ extortion – the threat under consideration must be sufficiently serious to be capable of bending the will of the government official, and this quality only exists when the threat is one of the use of force. We must conclude that extortion of a government official in the process of fulfilling his duties is deleterious to the regime, and as such merits a special prohibition which is more serious but also narrower than ordinary extortion.
The prohibition can embrace not only verbal threats but also acts, i.e., coercion leading to extortion, such as blocking primary roads and paralyzing traffic. Such an act can be seen as extortion when it involves a serious and intensive act of coercion with which it is difficult to cope and which has the potential of influencing decision-makers to act otherwise than exclusively in accordance with their conscience and their discretion. This is, inter alia because it creates a significant risk of violence between the persons exercising the coercion and the citizens who are directly harmed by the coercion and between the persons exercising the coercion and law enforcement agents. It should be noted that in these cases the protection given by the prohibition does not relate to the value of public security and public order but to the value of the proper functioning of the government.
One may ask whether an unlawful strike can amount to harm to the freedom of decision making and freedom of action of a government official.
It may be argued that a strike may lead to paralysis of public life, for example, when a strike is instituted by workers of the Water Company or the Electric Corp. Strikes of this type may prima facie give rise to the offence. In Germany117 and in Israel118 it has been held that certain cases, unlawful strikes can amount to an offence against the regime (sedition).
In our opinion, even strikes which are serious and unlawful cannot satisfy the behavioral element of the offence. Strikes which do not entail the element of the use of force do not fall within the scope of ‘serious means’ which cannot be withstood by government officials. The state has legal measures available to it, such as injunctions, for ending strikes which cause severe interference to public life. There is therefore a clear distinction between the use of force and threat of the use of force, which have a potential for violence (such as blocking roads, as described above) on the one hand, and strikes which do not contain the element of violence or potential for violence, on the other hand. The absence of the element of violence is the reason for the expectation that responsible government officials will withstand these pressures.119 The difference between a lawful strike and an unlawful strike is too fine to form the basis for a grave offence against the regime. It may undermine public confidence in the criminal law.
Is there justification for and a need to criminalize utterances which repudiate the democratic system of government, deny its legitimacy and call for its rejection?
A distinction should be drawn between criticism of the prevailing democratic regime, which is in the nature of protection of the democratic regime and nurturing it, on one hand, and denial of it as a type of regime, on the other. Clearly, one should not regard utterances which criticize the prevailing democratic regime from a manifestly democratic perspective – for example, that it is insufficiently democratic, that it is insufficiently loyal to principles of equality, or that it is unfair to minorities – as repudiation of that regime. The democratic system has weaknesses, and pointing to them does not amount to total repudiation of them. The democratic regime is based on active participation of the entire population, and is in the nature of a social arrangement which is supposed to take into consideration the will of all the citizens, i.e., a system of government which establishes a balanced and appropriate arrangement between the will of the majority and the will of the minority. By the very nature of the democratic process, democratic decisions create minorities who lose, i.e., whose demands or preferences are not satisfied.
Here, one should point out the weaknesses of the democratic system of government and the tensions prevailing between the full right to participate and exert political influence held by all citizens and the decision making mechanism, where in the absence of the ability to reach complete consensus, reliance must be placed on the will of the majority. According to the logic of the democratic system, even if it is not possible to reach broad or complete consensus a decision is required which is based on the desires of the majority. From the practical point of view there may be cases in which the collective institutional decisions are tilted – whether by virtue of the decisions of an unrestrained majority or by virtue of the manipulations of parties possessing narrow interests and the ability to sway and control, whose practical power is greater than their share in the population. The necessary outcome in a democratic system of government, which is based on majority decision, is that in the absence of overall agreement, the minority does not succeed in realizing its will, and the situation of a permanent minority is particularly difficult and problematic. Furthermore, from a political point of view it is easy for a regime which is based on a majority to ignore the voice of the minority, in particular when the minority does not threaten to turn into a majority in subsequent elections, and that there is always the risk that the majority – as a principle of democratic decision-making – will act as a cover for the actions of the national group, which forms the majority, against the freedoms of the opposing national group, which forms the minority. Such a regime becomes a dictatorship of the majority and disenfranchises and represses the minority.
In flawed social situations, sections of the public may fail on a permanent basis in terms of the fulfillment of interests which are critical to them by reason of the inability to reach a majority in collective institutions. In other cases, the majority may even feel that notwithstanding its numerical supremacy, it cannot protect and further the interests which it regards as important. Such a situation may occur, for example, when great power is concentrated in the hands of a group which is pivotal politically. In practice, it is possible to identify two significant potential defects in the democratic decision-making process: in the first, the system does not accord adequate weight to significant interests of the minority, and in the second, the system accords excessive weight to the interests of the minority at the expense of the interests of the majority. In both cases, individuals belonging to the collective – prima facie possessing rights which are equal to those held by the rest of the population – are left outside the circle of beneficiaries of the advantages which the democratic system of government is supposed to grant to all the individuals who are partners in the social covenant. Those groups feel deprived and disadvantaged by the prevailing democratic concept and therefore may repudiate the prevailing democratic system of government.
These groups are entitled to demand changes to certain aspects of the regime in order to ensure the right to genuinely participate. This is because the freedom of the majority in the decision-making process is not unlimited, and the democratic regime grants rights to the minority which the majority cannot abrogate. When the rights of the minority are negated, it is natural for the latter to no longer accept the prevailing system. In these circumstances, repudiation of the prevailing democratic system of government is in fact a true democratic act, as it does not amount to repudiation of the substance of the democratic regime. The democratic regime does not exist merely for the sake of being, because a `fighting democracy’ is a democracy which fights for the realization of the liberal values underlying it.123 The democratic regime exists for the benefit of all the citizens, i.e., all the groups in society and it requires active participation of all the citizens in shaping political and public life. Accordingly, the democracy enables groups which are often disadvantaged and discriminated against to repudiate the prevailing system of government. As noted, the repudiation of the prevailing regime in these circumstances is a democratic act, the purpose of which is to establish a substantively democratic regime, in which the basic values and principles – including the rights of the minorities – are properly safeguarded.
Allowing these groups to voice their protest – which includes repudiation of the prevailing democratic system of government – may lessen the rage and frustration of the groups which feel deprived. Preventing protests against the regime and against the prevailing system of government creates the risk that a group which consistently finds itself in a minority, and knows that it can never turn into the majority, will regard the democratic process itself as isolating and not collaborative. This is particularly true if the decisions in which this group consistently loses relate to the practical manner of allocating resources and to the fundamental values of the political and social discourse and in the light of the condescending and separatist attitude of the majority. If these groups are not given due and fair opportunity to express their view of the prevailing democratic system of government, there will be increased fear of harm to social stability and in extreme cases even of harm by violent means to the pillars of the prevailing democratic regime. This is because consistent discrimination may lead the deprived group to conclude that violence is the sole means of realizing its rights or gaining attention to its plight.
Moreover, the expression of an opinion – including a repudiatory opinion – by groups which feel discriminated against may lead to public debate and handling of the problem in a proper manner and at the right time. “Repudiation” of the legitimacy of the prevailing democratic system of government does not amount to denial of the essence of the democratic system; this “repudiation” is a manifestly democratic act, as it is designed to bring about a true democratic regime which respects and upholds the basic principles and values of the democracy. There is therefore no justification for prohibiting publications which express this repudiation.
The next question is, therefore, whether it is appropriate to criminalize utterances or publications containing full repudiations of the democratic system of government and denials of its legitimacy.
The constitutional democratic regime which is the subject of our discussion recognizes fundamental values such as basic human rights, which cannot be abrogated by the public, whatever its size: certain basic values are not contingent upon the will of the public and do not draw their strength and legitimacy from it. These values are inherent in man by virtue of his human existence.124 Thus, for example, freedom of expression – as a component and the essence of democracy – does not draw its strength from the consent of the public, and the boundaries of this element are not set on the basis of public consent.
It may be argued that appealing against fundamental democratic principles and denial of the legitimacy of the democratic regime are incompatible with the democratic ideal125 and may even harm it.126 It is also arguable that “realization” of freedom of expression and freedom of association for the purpose of appealing against them or against the legitimacy of the democratic regime in effect exploits the advantages of the democratic system of government for the purpose of destroying it.
Denial of the legitimacy of the democratic regime may bring about its collapse and the rise of a repressive and tyrannical form of government. The restraint shown by the state towards publications which repudiate the democratic regime may be interpreted by sections of the public as an expression of uncertainty about democracy as a regime and may be seen as a sign of weakness. Such an interpretation lessens public support for democracy and encourages the enemies of democracy.
The very serious danger inherent in the repudiation of the democratic regime lies in the fact that it can assist in the replacement of the democratic regime with another non-democratic regime, i.e., by a tyrannical regime. Such a regime does not enable its own modification by persuasive and peaceful means, and harms the fundamental rights of the citizens, including the right to life, to human dignity, freedom and equality. Such was the Nazi regime which brought about catastrophe to the world, to the Jewish people and to Germany itself, and which was only “replaced” following its defeat in the war; this was also the case in Greece in which a military revolution took place and a dictatorship took control, which repressed fundamental rights and led to the deaths of many. This regime was replaced following a civil revolt.
To summarize, repudiation of the democratic regime can encourage the replacement of the democratic regime by another form of government, one which does not act for the benefit of the entire public and violates the fundamental rights of its citizens.
Accordingly, if the democratic regime embodies the principle of ‘rule by the people, for the people’, and as such is the most appropriate regime, then it must be protected. Democracy need not enable its enemies to improperly exploit its advantages with the aim of bringing about its destruction.129 Recognition of this premise is what has given rise to the concept of a defensive and even a fighting democracy, one which is allowed to fight against activities that aim at its destruction.130 This is particularly true of a democracy which is vulnerable and fragile and lacks a deeply rooted social and cultural infrastructure supporting the democratic way of life and politics. This stance is reflected in measures which have been put in place in order to disqualify a party, list or candidate posing a danger to the democratic regime.
These arguments prima facie justify the prohibition of publications which repudiate democracy. However, this is not the end of our examination. Protection of the democratic regime requires that only appropriate measures be taken to protect the regime. Excessive restrictions cannot be imposed on the freedom of individuals and the criminal law should not be used except where necessary. Attention must be given to considerations of justice, efficiency, practical understanding and necessity. It is our opinion, therefore, that utterances that oppose the democratic system of government should not be defined as a criminal offence against the regime, if they do not contain an element of incitement to violence.
First, democracy is a system of government which is committed to the process of free and open public debate as a condition for the shaping and adoption of value-laden views and attitudes. Democracy is bound by and conditioned upon a commitment to free speech on political and ideological issues. By violating this commitment – democracy betrays itself.
It follows from the above that peaceful opposition to democracy should not be criminalized.
Democracy is a social value that deserves and demands legal protection. The protection of a democratic form of government derives from the protection granted to its citizens; it is designed to enable the state to perform its duty to protect their fundamental rights and interests. The individual can only maintain and exercise his fundamental rights within a properly working physical and political framework; therefore, a subversion of the political framework harms the state`s ability to act on behalf of its citizens.
The phenomena against the democratic regime are: revolutionary activity, including attempts and preparations for a revolution, as well as the establishment of an organization and participation as a leader or member in an organization whose aim is the use or the threat of the use of force to establish or change the system of government, to destroy or to harm a government institution, or to unlawfully harm the proper constitutional functioning of the institutions of a government.
One of the most serious and most dangerous phenomena confronting the democratic system of government – and indirectly the society as well – are activities that harm or endanger the organizational and functional structure of the democratic state with the aim of destroying it or its institutions. The most obvious of these is a revolution, that is, the exchange of a democratic state for another regime or, at least, the incitement to overthrow the government or to cripple its ability to function. This includes activities that prevent the state`s institutions from performing their constitutional duties; for example, actions designed to neutralize the Parliament or the Government by preventing it from assembling and reaching decisions, such as through the imprisonment of Parliament members or Ministers. The dangers and the criminal nature of a revolution derive from two cumulative factors: the severity of the objective – to harm the democratic state – and the element of association for this purpose.
The offence of revolution also includes attempts and preparations for a revolution. If a revolution is successful, then this means that the existing political regime has been eliminated and the offenders (the revolutionaries) have risen to power. The revolutionaries (yesterday offenders) do not stand trial; the revolution is the basis of their power and it is presented as an essential and justified act – a civilian revolution designed to protect the state and its citizens. Criminal proceedings will only be possible, if and when the previous regime returns to power. Therefore, both as a deterrent and as law enforcement policy, it is justified to include also the prohibition of revolution attempts in the definition of the offence. Furthermore, democracy is an essential social value and, therefore, an abstract danger to the existence of the state should suffice, and the criminality of the activities should not depend on a tangible or direct danger to the state`s existence, provide that the acts that endanger the state are illegal in their own right (at least from the perspective of the goal). It is, therefore, also justified to prohibit acts of preparation to harm the state as an anomaly in criminal law. In order to clearly differentiate the offence of conspiracy from punishment for thoughts alone, the formulation of a plan to commit revolutionary and subversive acts against the state should be required. The plan does not have to contain details regarding all its means and objectives. However, in order for it to be considered an attempt to harm the state, it must include its strategies and the designed time and place for their implementation. Therefore, the revolution attempt is punishable because it is a typical case of a criminal act, and acts of preparation are punishable in light of the importance of protecting this value and the need to take preventive measures. Nevertheless, it is proposed – due to the severe criminal nature of attempted revolution, as opposed to acts of preparation – to set the punishment for acts of preparation at half of the maximum sentence prescribed by law for revolution and attempted revolution.
Conspiracy to undermine the democratic political system by harming its structure and its governmental institutions – through the use or threat to use of force – is an abuse of the democratic system. Therefore, it is justified to prohibit the establishment of an organization and participation as a leader or member in an organization whose goal is the use or threat of the use of force to establish or change the system of government, to eliminate or to harm a government institution, and to unlawfully impede the proper constitutional functioning of state institutions. Political parties, their branches and offshoots, as well as any other organizations that have the aforesaid goals, which have been rendered unconstitutional for this reason, all fall within the bounds of unlawful association. An illegal political party is one that has been declared as such by a conclusive decision. The prohibited activities that are affiliated with unlawful association include leadership and active membership in the organization, the maintenance or reinforcement of its organizational structure, and other acts of assistance.
Active membership is intensive participation in activities to advance the purpose of the organization. Passive membership, which reflects the willingness to join the organization, should not fall within the bounds of this offence since the danger posed by such participation is negligible. Furthermore, a person may have joined an illegal organization (or failed to leave one) because of momentary weakness, a desire to please or impress others, or a fear of their reaction. The failure to leave the organization may also be the result of forgetfulness or the lack of importance ascribed to membership in it.
The use and threat of the use of force against a state institution (e.g. the Parliament, the Government or one of its members) with the objective of influencing its functioning or his or her performance, is a special and more serious – although more limited – from the regular phenomenon of extortion. Regular extortion violates the individual freedom of decision and action, and the danger is confined to the victim of extortion. In contrast, the extortion of state officials while acting in an official capacity could harm the entire public or, at least, a large sector of the public. Nevertheless, a state official, who is naturally in a position of power, is expected to withstand threats that are not very serious. Therefore, the prohibition of the threat to use force against a state institution or its officials should be more limited than that of the regular offence of extortion and should only include threats that are liable to influence the performance of the government officials. Some examples of threats of this nature are the threat to use force, which includes the threat of physical harm to the government official or to his or her close relatives; a serious threat to harm society or part of it (e.g. spreading an epidemic, polluting the drinking water, or burning down a factory that is crucial to the state); a threat to cause severe and intensive harm to public life, which would be difficult to cope with and, thus, has a potential to influence decision makers and prevent them from acting with a clear conscience and sound judgment (e.g. blocking major roads and paralyzing traffic in order to force the Parliament or the Government to act in a particular manner).
Nonviolent strike do not fall within the bounds of grave actions that state officials are unable to withstand. The state has lawful means to bring an end to strikes that seriously harm public life. Moreover, in certain cases, by dealing with illegal strikes as offences against the state, it is liable to create the impression that it is fighting workers, i.e. a hostile governmental view of workers – an outlook that is incompatible with a democratic regime.
(a) Government institution – the parliament, its committees and the government.
(b) Violence – use of force and threat of the use of force against a person.
(c) Unlawful means – violence and acts which are capable of harming infrastructure or essential public services.
(3) To use unlawful means against the members of a governmental institution with the purpose of preventing them or causing them to exercise their governmental powers.
(a) A person founding a revolutionary organization against the regime, fills a leadership position therein or performs an act aimed at maintaining or strengthening its organizational structure – shall be liable to imprisonment for five years. A person fills a leadership position if he holds a senior post in the organization, such as the person standing at the head of the organization, his deputy, second-in-command, heads of branches and also a person who does not perform an organizational function but has special influence over the members of the organization such as a spiritual leader.
(b) A person who fills active membership in a revolutionary organization against the regime – is liable to imprisonment for three years.
(c) A person who provides assistance to a revolutionary organization against the regime – or fundraises for the organization – shall be liable to imprisonment for three years.
shall be liable to imprisonment for twenty years.
subsection (a) with the purpose of committing it – shall be liable to imprisonment for ten years.
governmental power in a particular way or refrain from exercising it, with the said purpose – shall be liable to imprisonment for five years.
shall be liable to imprisonment for 5 years.
(b) In this section “incitement” – includes calls to implement the aforesaid objectives, publication of words of praise for their implementation and publication of words of encouragement, sympathy, support or identification, provided that they were performed with the purpose of implementing the aforesaid objectives.
* Faculty of Law, University of Haifa. LLB, LLM University of Cologne, Germany, LLD Hebrew University of Jerusalem.
** Faculty of Law, Hebrew University of Jerusalem, and Vice-President, Israel democracy Institute.
1 See also HW Laufhuette, Leipziger Kommentar zum StGB – Grosskommentar, 11 Aufl., 4. Lieferung (Berlin 1992) vor §80 para 21; Law Reform Commission of Canada, Working Paper 45, Crimes against the State (Ottawa 1986) 43; A Barak, “The Function of the Supreme Court in a Democratic Society”, in R Cohen-Elmagor (edn), Basic Issues in Israeli Democracy (Tel Aviv 1999) 129, 132 (IN HEBREW).
3 See Stephen, A History of The Criminal Law of England, Vol. II. (London 1883) 298ff; JWC Turner, Kenny’s Outlines of Criminal Law (19th edn, Cambridge 1966) 410f; Law Reform Commission (n 1 above) 6.
“Whereas divers opinions have been before this time what case treason shall be said, and in what not; the King, at the request of the lords and the commons, hath made a declaration in the manner as hereafter followeth, that is to say; When a man doth compass or imagine the death of our Lord the King, or of our Lady his Queen or of their eldest son and heir; or if a man do violate the King’s companion, or the King’s eldest daughter unmarried, or the wife of the King’s eldest son and heir; or if a man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, or elsewhere, and thereof be proveably attainted of open deed by the people of their conditional: And if a man counterfeit the King’s great or privy seal, or his money; and if a man bring false money into his realm, counterfeit to the money of England as the money called Lushburgh, or other, like to the said money of England, knowing the money to be false, to merchandise or make payment in deceit of our said Lord the King and of his people; and if a man slay the chancellor, treasurer or the King’s justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places, doing their offices: And it is to be understood, that in the cases above rehearsed, that ought to be judged treason which extends to our Lord the King, and his royal majesty: And of such treason the forfeiture of the escheats pertaineth to our sovereign Lord, as well of the lands and tenements holden of other, as of himself”.
See Law Reform Commission (n 1 above) 5; United Kingdom Law Commission No. 72, 7, 64; Pollock & Maitland, The History of English Law before the Time of Edward I, vol II (2d edn, Cambridge 1968) 502ff; Kenny`s Outlines of Criminal Law (n 3 above) 395ff; Archbold, Criminal Pleading, Evidence and Practice 2003 (London 2003) 2018ff.
5 See Law Reform Commission (n 1 above) 6; Stephen (n 3 above) 300ff.
6 The Unlawful Oaths Act 1797 prohibited any association (conspiracy) one of the aims of which was revolt against the regime or disruption of internal order.
7 Thus, for example, before the French Revolution there were approximately two convictions per year for the offense of sedition, whereas between 1789 and 1810 there were 103 convictions, and occasionally 33 convictions per year; see M Lobban, “From Seditious Libel to Unlawful Assembly: Peterloo and the Changing Face of Political Crime 1770–1820”, (1990) 10 Oxford Journal of Legal Studies307, 309. The position taken by English law inspired the German Reich law of 1871; see FC Schroeder, Der Schutz von Staat und Verfassung im Strafrecht (Munich 1970) 236.
8 See the decision of the court in R v Tutchin (1704), stated that “no government could survive if people were not called to account for making people think ill of it, and that all people should have a good opinion of government”; this citation appears in Lobban (n 7 above)314.
9 Stephen (n 3 above)348.
10 See Lobban (n 7 above)307ff.
11 R v Burnes 16 Cox C.C. 355 (1886).
12 By Stephen (n 3 above)299.
13 Stephen’s formulation is currently applied. See Law Commission 72 (n 4 above) 42; 11(1) Halsbury’s Laws of England (4th edn, London 1990) paras 89–90; P Murphy (ed), Blackstone’s Criminal Practice (London 2001) 740.
14 See Archbold (n 4 above)2136.
15 Thus, for example, Mahatma Gandhi was convicted of sedition after protesting against and expressing dissatisfaction with the regime.
17 R v Aldred 22 Cox CC 1 (1909).
20 R v Chief of Metropolitan Stipendiary Magistrate, ex parte Choudhury  1 All ER 306(CA).
21 Examination of Trials for Sedition in Scotland (1888) 8.
22 ex parte Choudhury (n 20 above) 322–323.
23 On the Canadian Boucher Case, see text below at n 31–33.
25 See Law Commission 72 (n 4 above) 46–48; E Barendt, Freedom of Speech (Oxford 1985) 152, 159–160.
26 Section 136 of the Penal Code.
27 See FCrH 6696/96 State of Israel v Kahana, 54(5) PD 145; M Kremnitzer and K Ghanayim, Incitement not Sedition (Israel Democracy Institute 2002) 11; M Kremnizer and L Levanon-Morag, “Limiting Freedom of Speech for the Prevention of Violence”, (2004) 7 Law and Government 305, 306.
28 CrApp 6696/96 Kahana v State of Israel, 52(1) PD 535, 584. Similar criticism may be found in FCrH 1789/98 State of Israel v Kahana, 54(5) PD 154, 158: “the offence of sedition […] is an anachronistic remnant from the time of the British Mandate in Palestine.” See also Kremnitzer and Ghanayim, ibid, 11.
29 CrApp 294/89 Aliyya v Attorney General, 43(4) PD 627, 629.
30 CrApp 1448/91 Anabtawi v State of Israel, Tak-El 1991, vol 91(3) 2396.
31 Boucher v the King  SCR 265.
32 See n 23 above.
33 See Law Reform Commission (n 1 above) 32, 41–45;; AW Mewett and M Manning, On Criminal Law (3rd edn, Toronto 1994) 604–605.
34 See Law Reform Commission (n 1 above) 49.
35 See Review of Commonwealth Criminal Law, Fifth Interim Report, June 1991, Part V: Offences Relating to the Security and Defence of the Commonwealth, para 32.10; LW Maher, “Use and Abuse of Sedition” (1992) 14 Sydney L Rev 287.
36 Burns v Ransley (1949) 79 CLR 101; regarding this case see also Maher, ibid, 287.
37 See R v Sharkey (1949) 79 CLR 121; regarding this case see also Maher, ibid, 301–302.
38 See Maher (n 35 above) 295–311.
39 See Maher (n 35 above) 291.
40 Dennis v US 341 US 494 (1951).
41 Gitlow v New York 268 US 652 (1925).
42 Dennis v US 341 US 494, 539–540 (1951); it is worth noting that Justice Frankfurter was very supportive of the judicial-self-restraint doctrine; see West Virginia Board of Education v Barnette 319 US 624, 650 (1943).
44 Yates v US 354 US 298 (1957).
45 Scales v US 367 US 203, 222–224 (1961).
46 Brandenburg v Ohio, 395 US 444, 447 (1969); see also Hess v Indiana 414 US 105; NAACP v California Hardware Inc. 458 US 886 (1982).
47 See Archbold (n 4 above)2136.
51 In the nineteenth century and first half of the twentieth century, German law too employed offences against the regime, primarily against student associations, professors, and liberal, communist and social-democratic parliamentarians. See AS Liourdi, Herkunft und Zweck der Strafbestimmungen zum Ehrenschutz des Staatsoberhaupts unter Beruecksichtigung des deutschen und griechischen Rechts (Goettingen 1990) 47. For the Law Against Social Democracy, see Schroeder (n 7 above) 101.
52 This is one of the important concepts developed by Locke and Rousseau, on social contract.
53 See also P Glotz, ‚Am Widerstand scheiden sich die Geister‘ in Glotz (ed), Ziviler Ungehorsam und Rechtsstaat (Frankfurt 1983) 8; HJ Schwagerl, Verfassungsschutz in der Bundesrepublik Deutschland (Heidelberg 1985) 5ff; CrApp 6696/96 Kahane v State of Israel, 52(1) PD 552.
54 See J Habermas, „Ziviler Ungehorsam –Testfall für den demokratischen Rechtsstaat. Wider den autoritaeren Legalismus in der Bundesrepublik“ in Glotz (ed), Ziviler Ungehorsam im Rechtsstaat (Frankfurt 1983) 29, 37f.
55 See Law Reform Commission (n 1 above) 42; see also Y Tamir, Liberal Nationalism (Princeton 1993) 35ff.
57 See R. Dworkin, A Matter of Principle (Cambridge 1985) 198; J Raz, Ethics in the Public Domain (Oxford 1994) 97.
58 See also HP Schneider, “Gesetzgeber in eigener Sache – Zur Problematik parlamentarischer Selbstbetroffenheit im demokratischen Parteistaat”, in Grimm and Maihpfer (eds), Gesetzgebungstheorie und Rechtspolitik, 13. Jahrbuch fuer Rechtssoziologie und Rechtstheorie (Opladen 1988) 327, 334.
59 HCJ 142/70 Shapira v District Committee of Chamber of Advocates, Jerusalem, 25(1) PD 325, 331.
60 See also Laufhuette (n 1 above)(n 1 above) vor §80 para 21; see also EA 84/2 Neiman v Chairman of the Central Election Committee, 39(2) PD 225, 310, 314; FH 9/77 Electric Corp of Israel v Ha’aretz Press Ltd, 32(3) PD 337.
61 See J Rawls, A Theory of Justice (Cambridge 1971) 214; Schwagerl (n 53 above) 9; BVerfGE 25, 88, 100; BVerfGE 28, 36, 48f.
62 See N Livos, Grundlagen der Strafbarkeit wegen Hochverrats (Pfaffenweiler 1984) 235.
63 To these, one must add, of course, the dangers which non-democratic regimes pose to world peace.
64 See also Boventer (n 2 above) 241.
65 As in German law, Swiss law, Austrian law, Greek law, English law, Australian law, Canadian law and US law.
66 See also Laufhuette (n 1 above)(n 1 above) §83 para 9; G Stratenwerth, Schweizerisches Strafrecht, Besonderer Teil (5th edn, Bern 2000), 237; Livos (n 62 above) 315; BGHSt 7, 6, 8.
67 See D Spinellis, “Probleme des Hochverrats im Lichte der Erfahrungen aus der juengen griechischen Geschichte und Rechtsprechung”, ZStW 94 (1982), 1080, 1085; Livos (n 62 above) 177.
68 See, for example, the revolution which took place in Greece in 1967, when, after the civil revolt and the return of the democratic regime in 1976, the rebels were tried for offences against the pre-revolutionary regime; the dictator had not changed the law in relation to offences against the regime; the offences remained in place and continued to be valid even after the civil revolt. See SE Kareklas and C Papacharalambous, Strafrecht in Reaktion auf Systemunrecht: Griechenland (Freiburg 2001) 65.
69 Quotation from BL Ingraham, Political Crime in Europe: A Comparative Study of France, Germany and England (Berkley 1979) 26. Shakespeare also expressed this view, when he stated: “Treason never prospers; if it prospers, we dare call it treason”. See also Livos (n 62 above) 163, 172.
70 And not as occurred in Chile.
71 For the distinction between (permitted and positive) civil rebellion and (prohibited) revolution, see Livos (n 62 above) 171–192 in relation to Greece.
72 See also Schroeder (n 7 above) 308; Dennis v US 341 US 509f; E/A 2/84 Neiman v. Central Elections Committee of the Eleventh Knesset, 39(2) PD 225, 311, 314; see also A Bendor, “The Right of Parties to Participate in Elections to the Knesset”, (1988) 18 Mishpatim 269, 280–287 (IN HEBREW); in contrast, see Justice Cohn in Yardur v Chairman of the Central Elections Committee of the Sixth Knesset, 13(3) PD 367, 381. See also SZ Feller, Elements of Criminal Law, Part 2 (Jerusalem 1987) paras 67–70 (IN HEBREW).
73 See also U Beck, Unrechtsbegründung und Vorfeldkriminalisierung (Berlin 1992).
74 Except in cases where the state has a very strong justification, such as the phenomenon of terrorism, treason and others.
75 The position whereby harm to the regime amounts to harm to the basic rights of all the citizens and therefore is very grave, finds expression in German criminal law, which defines harm to the regime in the first part of the specific section of the criminal law; see Beck (n 73 above) 91; Entwurf eines Strafgesetzbuches (StGB) E 1960 mit Begründung (Bonn 1960) 508; see also Law Reform Commission (n 1 above) 1.
76 See Sections 81, 83 of the German Penal Code, Sections 165, 275 of the Swiss Penal Code, Section 242 of the Austrian Penal Code, Section 134 of the Greek Penal Code, Section 46 of the Canadian Criminal Code and Section 28 of the Proposal in Law Reform Commission (n 1 above); Section 2384 of the Federal Criminal Code and Gitlow v New York U.S. 652 (1925); Dennis v US 341 US 494 (1951); Yates v US 354 U.S. 298 (1957).
77 See M Mischka, Hochverrat und Staatsgefährdung in der Rechtsprechung des Bundesgerichtshofs (Bonn 1962) 99ff on German law; and also E Simeonidou-Kastanidou, “Der strafrechtliche Schutz der Demokratie”, in Bemmann & Manoledakis (eds), Der strafrechtliche Schutz des Staates (Neuwied 1987) 16 on Greek law. It is clear that if the conspiracy is not expressed solely by agreement but also by the creation of a continuing framework for the performance of the revolutionary activity, the risk becomes greater and more serious.
78 Section 83; see BGHSt 7, 11; Schroeder (n 7 above) 300.
79 Section 165; see Stratenwerth (n 66 above) 201.
80 See text below accompanying n86ff.
81 See also W Stree and D Sternberg-Lieben, Schoenke/Schroder, Strafgesetzbuch Kommentar (26th edn, Munich 2001) §83a para 1; Laufhuette (n 1 above)(n 1 above) §83a para 1.
82 See also Stree and Sternberg-Lieben, ibid, §83a para 2; Laufhuette (n 1 above)(n 1 above) §83a para 1.
83 See also Stree and Sternberg-Lieben, ibid, §83a para 11.
84 See also CrA 290/88 Gerar v State of Israel 43(4) PD 696, 701ff, and here it is irrelevant if the conspiracy is an independent offence as required by the Anglo-American approach or is an act of preparation to commit an offence with a co-perpetrator, i.e., it is a derivative offence and the first stage of performance as required by the European-Continental approach.
85 An arrangement in this spirit exists in Section 83a of the German Penal Code, Sections 243 and 245 of the Austrian Penal Code, and Section 137 of the Greek Penal Code.
86 See also E/A 2/84 Neiman v Central Elections Committee of the Eleventh Knesset 39(2) PD 225, 290–291; G. Willms, “Zur strafrechtlichen Absicherung von Organisationsverboten”, in FS Lackner (Berlin 1987) 471.
87 See Beck (n 73 above) 204ff.
88 See O Leukauf and H Steininger, Kommentar zum Strafgesetzbuch (2nd edn, Prugg 1979) §246 para 5; E Foregger in Wiener Kommentar, 6. Lieferung (Wien 1999) §246 para 5.
89 As we are concerned with policy considerations, choosing a different number would be equally acceptable.
90 See also Stree and Sternberg-Lieben (n 81 above) vor§ 80ff para 5ff; Laufhuette (n 1 above) vor §80 paras 25ff; Entwurf eines Strafgesetzbuches (StGB) E 1960 (n 75 above) 509; E/A 84/2 Neiman v Central Elections Committee of the Eleventh Knesset 39(2) PD 225, 270.
91 See also Stree and Sternberg-Lieben (n 81 above) §84 para 2; Willms (n 86 above) 471ff.
92 See also Laufhuette (n 1 above) §84 para 1; Schroeder (n 7 above) 314, 469.
93 See R Maurach, C Schroeder, and M Maiwald, Strafrecht Besonderer Teil, Teilband 2 (8th edn, Heidelberg 1999) 328.
94 See Maurach et al, ibid 328.
95 See BVerfGE 12, 296ff.
96 See also C/A 1282/93 Registrar of Associations v Kahane et al, 47(4) PD 100, 106.
97 See also BGHSt 19, 110ff; BGHSt 20, 74f; BGH NJW 1965, 161; BGHSt 18, 296ff; Stree and Sternberg-Lieben (n 81 above) §84 para 10.
98 See also Maurach et al (n 93 above) 329; BGHSt 6, 129, 130; BGHSt 7, 279; BGHSt 19, 109ff; Stree and Sternberg-Lieben (n 81 above) §84 paras 11ff; Laufhuette (n 1 above) §84 para 7.
99 See BGHSt 20, 45, 53; BGHSt 20, 287ff; BGHSt 16, 298ff; Stree and Sternberg-Lieben (n 81 above)(n 81 above)§ 84 para 12; Laufhuette(n 1 above)§ 84 para 6.
100 See also BGHSt 20, 287, 289; Stree and Sternberg-Lieben(n 81 above)§ 84 para 12.
101 See also Stratenwerth (n 66 above) 236; for American law, see US v Robel, 389 US 258, 266, 282.
102 See also Maurach et al (n 93 above) 329; Stree and Sternberg-Lieben (n 81 above) § 84 para 15; Laufhuette (n 1 above)§ 84 para 9; BGH NJW 1960, 1772, 1773; US v Robel, 389 US 258, 266, 282.
103 See also Maurach et al (n 93 above) 329; H Krauth, W Kurfess, and H Wulf, “Zur Reform des Staatsschutz-Strafrechts durch das Achte Strafrechtsaenderungsgesetz”, JZ 1968, 577, 580; BGHSt 26, p. 258; Stree and Sternberg-Lieben (n 81 above) §84 para 15.
104 See also BGHSt 26, 258f; Maurach et al (n 93 above) 329; Stree and Sternberg-Lieben (n 81 above) § 84 para 16.
105 See also BGHSt 23, 64, 70; Stree and Sternberg-Lieben (n 81 above) §86 para 2. This is also a challenge to the decisions of the regime which prohibit any action by the organization, and therefore, harm to governmental authority, i.e., the democratic regime in which the governmental decisions are solely within the competence of the government institutions.
106 See also Maurach et al(n 93 above) 360.
107 Sections 106, 106 of the German Penal Code.
108 Sections 250, 251 of the Austrian Penal Code.
109 See also A Brenner, ” Political Pressures as Extortion'” (2000) 8 Plilim 299, 307–308 (IN HEBREW).
110 This is a dual presumption: empirical and normative.
111 See Entwurf eines Strafgesetzbuches (StGB) E 1960 (n 75 above) 543; BGHSt 32, 170, 172–173; Maurach et al(n 93 above) 323, 361. For a different position, see Brenner (n 109 above) 331, 334.
112 See also Entwurf eines Strafgesetzbuches (StGB) E 1960 (n 75 above) 543; Brenner, supra note 109, 311.
113 See also the official proposal for reform of the German criminal law of 1960- Entwurf eines Strafgesetzbuches (StGB) E 1960 (n 75 above); and regarding Canadian law, see Law Reform Commission (n 1 above) 49.
114 See also Maurach et al (n 93 above) 361; BGHSt 32, 165, 172.
115 See CrF 3996/95 State of Israel v Feiglin et al, judgment of the Magistrate’s Court of Jerusalem, given on 2 November 1997 (unpublished).
116 It should be noted that the defendant’s acts were designed to coerce the government to change its policy rather than to influence public opinion.
117 See BGHSt 6, 336, 340; BGHSt 8, 102; Maurach et al(n 93 above) 323; Stree and Sternberg-Lieben(n 81 above) §81 para 4.
118 CrApp 294/98 Aliyya v Attorney General, 43(4) PD 627, 629 (in Hebrew).
119 For the view that mass strikes do not fall within the framework of the use of force which is capable of leading to the capitulation of a government official, see Stratenwerth, supra note 66, 201.
120 See also Maurach et al(n 93 above) 323, 362; BGHSt 32, 165, 172.
121 In these cases, the offence of ‘regular’ extortion which is intended to protect the freedom of decision and freedom of action of every person is inapplicable; the protected interests are different; there is no nexus between the offence of ‘regular’ extortion and the government official, when the latter functions within the framework of his government position.See also BGHSt 32, 165, 176; G Arzt, “Anmerkung zu BGH-Urteil”, JZ 1984, 428, 429; Maurach et al(n 93 above) 362.
122 See also Schroeder (n 7 above) 204.
123 See A Marmur, “On the Boundaries of Democracy: Political Science following the Murder of Rabin”, (1996) 1 Israel Year Book 29 (IN HEBREW); also C Leggewie and H Meier, Republikschutz (Hamburg 1995) 155.
124 See text above accompanying notes 55–58.
125 See also A Vitkon, “Queries and Some Youthful Recollections on Freedom of the Press”, in Gavison (ed), Civil Rights in Israel: Collation of Articles in Honour of Haim H. Cohn (Jerusalem 1982) 153, 161 (IN HEBREW); Simeonidou-Kastanidou (n 77 above) 11, 14ff; J Frowein, “How to save Democracy from itself?” (1996) 26 Israel Yearbook on Human Rights 201; U Backes, Schutz des Staates (Opladen 1998) 40–41.
126 See the approach taken by Justice Matza (dissenting opinion in CrApp Kahana); FCrH 1789 State of Israel v Kahana 54(5) PD 166 (in Hebrew).
127 Quotation from I Canu, Der Schutz der Demokratie in Deutschland und Frankreich (Opladen 1997) 190.
128 See also O Backes, Rechtsstaatsgefaehrdungsdelikte und Grundgesetz (Cologne 1970) 15f; EA 1/65 in Yardur v Chairman of the Central Elections Committee of the Sixth Knesset, 13(3) PD 367, 387–388, 389; Vitkon (n 125 above) 165.
129 See R Langer-Stein, Legitimation und Interpretation der strafrectlichen Verbote krimineller und terroristischer Vereinigungen (Munich 1987) 95–97.
130 For defensive democracy, see K Loewenstein, “Militant Democracy and Fundamental Rights” (1997) 31 American Political Science Review 417–432, 638–658; Schwagerl (n 53 above) 9ff; S Baer, “Violence, Dilemmas of Democracy and Law”, in Kretzmer and Hazan (eds), Freedom of Speech and Incitement against Democracy (The Hague 2000) 63, 81ff; Rawls, (n 61 above) 214; BVerfGE 25, 88, 100; BVerfGE 28, 36, 48f; M Kutscha, Verfassung und “streitbare Demokratie” (Cologne 1979) 26ff; EA 1/65 in Yardur v Chairman of the Central Elections Committee of the Sixth Knesset 13(3) PD 365, 390; FCrH 1789/98 State of Israel v Kahana 54(5) PD 166; EA 84/2 Neiman v Chairman of the Central Election Committee of the Eleventh Knesset 39(2) PD 225, 242, 313; and also Boventer (n 2 above) on defensive democracy according to American, German, French, Italian, Austrian, British, Swiss, Greek, Spanish, and Portuguese law.
131 See also HCJ 73/53 Kol H’am v Minister of the Interior 7 PD 877; Abrams et al v US 40 S Ct Rep 17, 22 (1919). In this context, the comments of the Supreme Court are apposite: “Generally, there is a good chance that the truth will ultimately triumph, and therefore if there is just sufficient time, it is best to act – to cancel the influence of the false information which was published in the newspaper […] by means of examination, education and counter explanation. ‘If there is time to discover the lie and mistakes by means of discussion, and prevent the tort by means of educational processes, then the remedy which must be sought is actually talk and not silence which is enforced”. HCJ 73/53 Kol H’am v Minister of the Interior, 7 PD 891.
132 See JS Mill, On Freedom (1859).
133 See also the statement of Justice Agranat: “Frequently the very act of repression – the very stopping of the appearance of the newspaper in which the improper statements were published – vests these with a value which is exaggerated in the eyes of the public. In places where enemies of freedom encounter denial of freedom, many people who possess good will may think that notwithstanding this, there is something behind the dictatorship which is prohibited. Failing doctrines are only helped by oppression. They die with the disclosure of their conceptual basis”. HCJ 73/53 Kol H’am v. Minister of the Interior, ibid.
134 See Kutscha (n 130 above).
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