Guidelines to Assist National Minority Participation in the Electoral Process Page: 14 Although States are permitted to regulate the exercise of the freedom to associate, the State may not interfere with it unless the interference is justified on compelling grounds. In both international law and comparative constitutional law, any interference with the freedom is strictly scrutinised.21 The interference may be justified only if - the interference is prescribed by law - the law permits interference on the following grounds only ! national security ! public order and safety ! the protection of health or morals ! the protection of the rights and freedoms of others (as stipulated in international human rights instruments) - the interference is necessary in a democratic society. The restrictions on associations promoting the interests of national minorities are normally based on national security. Unless the association promotes the use of violence in order to achieve its objectives, the restriction is unlikely to be justified as a threat to national security. The European Court of Human Rights has consistently held that unless there is a call to use violence or act undemocratically, an association that seeks to change the existing structures of the State peacefully and democratically does not, on that ground alone, threaten national security.22 The fact that a political party seeks to mobilise a national minority to pursue its interests does not of itself justify interference. Although it is normally left to the State to decide if it wishes to curtail the activities of an association in terms of the law, there are positive obligations on States to prohibit certain kinds of activities that may include the prohibition of the associations themselves. Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination requires States to adopt positive measures such as the prohibition of organisations that promote and incite racial discrimination. The principle applies to all associations and not to political associations only. For the purpose of these guidelines the principle applies to political parties, cultural and community associations that represent national minorities and non-governmental associations that support those minorities. The application of the principle in the context of national minorities clearly contemplates the right to establish associations based on communal identities and those that organise across communities. Although States may take steps to encourage associations to diversify their constituencies, the State must guarantee national minorities the right within the law to establish associations based on a communal identity. It is clear that while it is imperative for each State to find the best way to respond to the polarity of interests of its diverse populations, it must, at the very minimum, ensure that there is freedom of association. Provided the activities of those individuals mobilising along communal identity lines to 21 22 members of majorities. Majorities cannot establish trade unions which are closed to members of minorities, nor can professional organisations be set up to which members of minorities have no access. The same principle applies to associations set up by members of minorities. States must prohibit exclusions on, for example, ethnic or national grounds. Thus, associations set up by minorities to promote the culture of a minority, cannot exclude a person belonging to other groups from membership if they want. See for example the approach adopted by the European Court of Human Rights in Sidiropoulos & others v Greece (57/1997/841/1047) in which the Court states that “[e]xceptions to freedom of association must be narrowly interpreted”, at para 38. In The Socialist Party & Others v Turkey (00021237/93) the ECHR held that the fact that a political party’s “political programme is considered incompatible with the current principles and structures of the … State does not make it incompatible with the rules of democracy. It is the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way the State is currently organised, provided that they do not harm democracy itself”, at para 47.