After the Referendum

Nation, Democracy, and the Integration of Russophones

With the restoration of independence in 1991, nation-building became an important element of militant democracy in Latvia. Policy, which would guarantee the leading role of ethnic Latvians in the Latvian demos, was considered a necessary pre-condition for the democratic development of the country. The main reason for this was the changes in the ethnic composition of the country during the Soviet rule. If before the Soviet occupation of 1940, 75 percent of the population of Latvia was ethnically Latvian, in 1989, the proportion of ethnic Latvians had decreased to 52 percent—mainly due to mass immigration of Russians, Belorussians, and Ukrainians during the Soviet period. ¹² Most of them didn’t speak Latvian, had weak ties with Latvian society and culture, as well as considerable sympathies towards the Russian Federation. Since the Russophone minority (which constituted a majority in most of the largest cities) was perceived as a threat to Latvian democratic statehood, the Latvian political elite opted for the exclusion of the Soviet-era immigrants from automatic citizenship. According to the so-called state continuity doctrine ¹³ adopted by the Latvian elite in the early 1990s, an automatic right to membership in the polity was initially given only to the citizens of interwar Latvia and their descendants. The naturalization procedures were intended to provide only for gradual inclusion of the Soviet-era immigrants, which would secure the cultural integration of new citizens and their loyalty to the Latvian state. Securing the dominance of ethnic Latvians among the Latvian citizenship was not primarily a question of permanent ethnic domination over the non-core groups, but of securing the liberal-democratic and pro-Western development of the country. At the same time, this policy concentrated political power and influence in the hands of the ethnic Latvian political elite, and this fact deeply influenced the policies of nation-building.

Vello Pettai and Klara Hallik have described the largely analogous Estonian situation in terms of “ethnic control,” that is, the majority’s peaceful domination over a significant minority by means of segmentation, dependence, and co-optation. Mentioning the Moldovan scenario as the negative counterpart, they note that in Estonia there exists a “general consensus that this remarkably swift ‘return to the Western world’ would not have been possible without the rapid consolidation of Estonian political power.” ¹⁴ Similarly, in Latvia, the initial exclusion of the Soviet-era immigrants from the Latvian demos was seen as a precondition for democracy, and a particular type of nation-building, centred on the ethnic Latvian nation, as a necessary limitation of democracy for the sake of democracy itself. The legal façade of historical restorationism and international law is not separable from the political content of the Latvian citizenship policy, that is, from the militant attempt to prevent the self-destruction of the new democratic statehood. Not denying the presence of strong ethnic sentiments, at least ideally, this type of nation-building was closer to the liberal republican approach than to ethnic democracy. It presupposed the principal openness of the Latvian civic nation on the basis of shared public culture and loyalty to the Latvian state.

Further developments in relations between democracy and nation-building in Latvia have been analysed from various perspectives. International actors, whose impact has deeply affected the development of Latvian democracy, played an important role. The EU and OECD have exercised significant influence on Latvian minority policies; ¹⁵ a prominent role has been played by the EU’s conditionality and the prospect of Latvia’s joining this organization. ¹⁶ On the other hand, the development of the Latvian nation-building has been constantly influenced also by the Russian Federation acting as a patron for the sizeable Russophone minority. ¹⁷ The main contested policy areas are citizenship, language, and educational policies. Unlike Estonia, Latvia established the naturalization procedure relatively late, in 1994, and initially the regulation was very restrictive. It took the intervention of international actors and a referendum in 1998 to liberalize it according to European norms. ¹⁸ Nevertheless, the success of the liberalization was only limited. After a brief naturalization boom in 2004–2006, caused mainly by the country’s accession to the EU, the number of applications dropped to around 1,500 a year. Taking into account that there are still 290,000 non-citizens in the country, ¹⁹ one can hardly speak of successful naturalization of non-citizens.

A large (some would say, excessive) emphasis in the Latvian nation-building policy has been put on the state language policy. Since most Russophone immigrants had very little motivation to learn Latvian during the Soviet period, the “nationalisation” of the linguistic sphere ²⁰ was one of the most important tasks of the Latvian state. Latvian is the only state language in Latvia; its use is mandatory for all public sector and many private sector positions. In many policy documents, the knowledge of Latvian is regarded as a necessary precondition for the integration of Latvian society. However, the language policy was also the cause for the only case of a mass protest of Russophones. In 2004, the Latvian government tried to implement an education reform providing for the complete Latvianization of the Russian-language schools from the ninth grade. Although a compromise on teaching in both Latvian and Russian in the proportion of 60/40 percent in minority schools was found in the aftermath of protests, the language of education is still a hotly discussed topic. The language policy in Latvia has been successful in terms of knowledge of the state language, which has clearly improved, especially among young Russophones. It doesn’t mean, however, that the self-sufficiency of the Russian language would be seriously challenged in Latvia in the nearest future, since the everyday use of the state language among Russophones is still rather limited. ²¹

From the late 1990s on, the nation-building policies in Latvia have been conceived in terms of “social integration.” In 2001, the State Programme of social integration was adopted (renewed 2011), which provided the framework for the inclusion of non-Latvians in Latvian society:

Social integration is directed towards mutual understanding of individuals and groups in the legal framework of the Latvian state on the basis of Latvian language as the state language, on loyalty towards the state of Latvia. The aim of integration is to create a democratic, consolidated civil society, rooted in common values. ²²

This perceived necessity to integrate the Soviet-era immigrants into Latvian society was to a large extent encouraged by Latvia’s international partners. When facing the prospect of entering the EU and NATO, Latvia introduced a governmental post of the Special Assignments Minister for Societal Integration Affairs (abolished 2009). Also, the Social Integration Foundation was established in 2001 whose task is to promote the accessible teaching of the Latvian language and to distribute funds to civil society initiatives. ²³ Nevertheless, if during the 1990s and early 2000s many scholars were quite optimistic about the rapid integration of Russophones, ²⁴ especially due to the country’s successful integration into Western structures, later on this optimism waned. Relations between ethnic Latvians and Russophones have been generally peaceful; there are relatively few socioeconomic differences between the two groups ²⁵ and a high level of mixed marriages; ²⁶ the knowledge of the Latvian language among the Russophones has clearly improved. A broad consensus exists among both Latvians and Russophones about many social values, like the necessity to pay taxes and to defend one’s own civil rights. However, the majority of Russian speakers are still alienated from the Latvian state. This alienation mainly concerns aspects of nation-building. Zepa et al. describe the disagreement on the desirable strategies of acculturation among ethnic Latvians and Russophones: a significant proportion of Latvians support the strategy of Russophone assimilation, and a significant proportion of Russophones themselves prefer the strategy of separation. ²⁷ Muižnieks, Rozenvalds, and Birka too are critical about the results of the integration policy in terms of the Russophone minority’s sense of belonging to Latvia. They conclude that the “emphasis on the majority language and culture as a prerequisite to citizenship and formal membership has enhanced the threat-perceptions of minorities and led to their alienation or identification with the external homeland of Russia.” ²⁸ The widespread lack of Russophone self-identification with Latvia as an obstacle to successful nation-building is also explored by Duvold and Berglund. ²⁹ Attention has been also devoted to remarkable differences in historical memories and commemoration practices between Latvians and Russophones in Latvia. ³⁰

In recent years, the political aspects of nation-building have attracted increasing scholarly attention. The democratic credentials of Latvian political decision-makers have often been put into question; their self-declared willingness to promote a liberal and democratic integration policy has been regarded as only outwardly induced and insincere. ³¹ Agarin describes the Baltic democratization as a superficial “cat’s lick” and emphasizes the systematic lack of minority involvement in the democratization process. ³² The noticeably higher political salience of ethnopolitical issues in Latvia in comparison with neighboring Estonia has recently attracted attention to the comparative aspects of the Baltic party systems. As several authors note, the persistence of the ethnic cleavage in Latvian party politics doesn’t contribute to successful nation-building—despite the fact that in Latvia, unlike Estonia, the Russophone minority is given its “own” voice in the party system. ³³ The ethnic polarization constantly leads to bitter fights on nation-building issues, like citizenship, language, and education, constantly (mis)used by political parties. It helps to explain both the current consolidation of the Russophone electorate around the “Harmony Centre” party, as well as the radicalism of the main Latvian nationalist party TB/LNNK (now called the National Alliance). ³⁴

These developments show that the initial combination of a particular type of nation-building with democratization has led to problematic results. Latvia has successfully “returned” to the Western democratic world, and according to most democracy indexes such as “Freedom House” or Bertelsmann, it is clearly recognized as a free country and a democracy. On the other hand, the nation-building or “social integration” can be scarcely regarded as successful. A significant part of Latvia’s sizeable Russophone population is alienated from the democratic state; it sympathizes with Vladimir Putin’s Russia and often has authoritarian preferences. ³⁵ Earlier optimistic assumptions about the gradual acquisition of citizenship and increasing loyalty to the Latvian state among minorities have proved largely unfounded. Also, because of the predominance of ethnic cleavage in party politics, the Russophone minority is still often regarded by the Latvian majority as a threat to democratic statehood. It would seem the democratic nation-building process has not been substantially facilitated by the country’s membership in the EU and NATO. On the contrary, the tensions between nation-building and democracy have gained salience during the years 2011–2014, when a widely attended referendum on the introduction of Russian as the second state language caused an increase in the militant democracy measures.

Latvian Militant Democracy before 2011

In order to explore the increasing militancy of Latvian democracy and the role of nation-building in it, it is necessary to look briefly at the previous development of democratic “self-defence” and its main areas. Gregory H. Fox and Georg Nolte’s distinction between the procedural and substantive approaches to democracy has already become classic in militant democracy studies. ³⁶ Although its explanatory scope has been contested, ³⁷ in our view it is still useful to distinguish between the two types of approaches to democracy. The procedural view holds that democracy is mainly a rational procedure for arriving at decisions. In a democratic society, there are no authorities and values that stand above the different positions in the political debate: “In giving up its claim to truth, the modern secular political order takes no position when a plurality of truths is asserted.” ³⁸ In principle, it presumes that alternatives to democracy can also be debated. If the majority of citizens can establish a democratic order, it can also disband it. The substantive view, on the contrary, holds that certain democratic principles cannot be subjected to the decision of fluid majorities. This is a democracy, where “the majority rule is made meaningful” in the sense that even the majority cannot eliminate the foundational values of the society of citizens: “the principles of justice undergirding a democratic society, while tolerant of virtually all forms of dissent, cannot be understood as permitting their own alienation.” ³⁹

Several commentators on Fox and Nolte have noted that the distinction between procedural and substantive democracies falls too short. ⁴⁰ It is rather a diverse continuum, where different democracies choose different approaches to militancy, reacting to different threats. However, when approaching the Latvian case, we can observe a distinct move from the procedural to the substantive approach, where the majoritarian conception of democracy gives way to a more value-based understanding. Latvia is the only post-communist country, which, after the collapse of the Soviet Union, restored its inter-war constitution. It is to a large extent based on the Weimar model. Initially, it included very few substantive elements; even the bill of rights was introduced into the Satversme only in 1998. During the last decades we have observed gradual attempts to make Latvian democracy more substantive, particularly with regard to the preeminent role of the Latvian ethnic identity in the Latvian state. However, before 2011, Latvia still employed a mostly procedural approach to democracy with relatively little militancy. The main institutional sources of this approach were the 1922 Weimar-style constitution, as well as increasing involvement in Western organizations—first and foremost, the EU and NATO. As Andras Sajó suggests, on the international level, the introduction of militant democracy measures are often perceived as a symptom of vulnerability. ⁴¹ In the pre-accession period and immediately after, it was important for Latvia not to appear vulnerable. Therefore, it did little to introduce substantive measures in defence of its democratic statehood.

In order to describe the earlier Latvian approach to militant democracy in more detail, I will use four of the institutional provisions or “clusters” of militant democracy as classified by Markus Thiel. ⁴² They comprise: the protection of the “constitutional core”; treatment of extremist parties and other organizations; misuse of fundamental rights and freedoms; and regulations and measures taken with regard to the institutions of the “state” (e.g., allegiance requirements of public servants). These four “clusters” are the most relevant in the present context; others, such as the regulation of states of emergency or administrative protection of the constitution, do not play a significant role in the Latvian context.

The Trigger Event: The 2012 Referendum

The situation started to change in 2011, when a group of Russophone radicals succeeded in initiating a referendum on the introduction of Russian as the second state language in Latvia. Writing on the Western European countries’ responses to the extreme right, Jaap van Donselaar analyzes the “trigger events” (mostly violence or shocking public statements by radical leaders) as a significant stimulating factor for the introduction of militant democracy measures. The 2012 referendum falls into this category, also because it illustrates van Donselaar’s thesis that “the link between the seriousness or actual power of a specific event and the shock created by it is not necessarily proportionate.” ⁵¹ Taking into account the specific referendum regulations in Latvia, as well as previous experience, the chance of successful constitutional amendment was insignificant. However, the referendum served as a trigger event for a wide variety of militant democracy measures.

The group that initially stood behind the referendum consisted of Russophone extremists. Vladimirs Lindermans, a Latvian non-citizen and simultaneously a leading figure in Russia’s National Bolshevik party, and Jevgeņijs Osipovs, the leader of a small left-wing extremist group in the city of Liepāja were the authors of the initiative. Lindermans himself admitted its symbolic nature: the aim was to demonstrate the real influence of Russians in Latvia:

Latvian politicians have always said that there is no problem with the Russophone population. They said that to Europe too. Now this problem cannot be concealed anymore; it has become fully visible. . . . This is an argument for Europe, for pragmatic Latvians, even for us ourselves. ⁵²

This group succeeded in gathering the initial ten thousand signatures required for the second stage of a popular initiative, organized by the state and requiring the signatures of one-tenth of Latvian citizens. This second stage, which took place in October 2011, most probably would not have enough popular support if the mainstream Russian politicians had stayed out. They did not, and the initiative was publicly endorsed by the moderate Russophone party “Harmony Centre” and its charismatic leader, Nils Ušakovs. The participation of the “Harmony Centre” secured broad support for the initiative and led to a highly divisive referendum. This supports the thesis about the prominent role of party politics in the interethnic relations in Latvia. ⁵³ “Harmony Centre” support for the referendum reinforced its perception as a threat among Latvian politicians. Its electoral influence had grown incessantly: from 2009 it controlled Riga municipality, and, from 2011, it was the largest parliamentary faction in Saeima. Support for the referendum was seen as a clear sign of the party’s disloyalty to the Latvian state, and reinforced the ethnic cleavage.

The referendum took place on 18 February 2012. It was one of the most widely attended referendums after the restoration of independence, with 71.13 percent of Latvian citizens coming to the polls. It produced a rather unambiguous result, with 74.8 percent voting against the motion. However, the clear majority voting for the status quo did not calm the situation down. Since the result reflects the ethnic composition of Latvian citizens, it was rather interpreted as a dangerous sign. The fact that the majority of Russophones do not recognize Latvian as the only state language in Latvia was seen as a sign of the disintegration of Latvian society that might jeopardize the very existence of independent, democratic Latvia. The emotional intensity of the referendum campaign was high on both sides. The Russophone side campaigned against Latvian ethnic “totalitarianism” that wants to deprive Russian families of their children. On the Latvian side, the referendum was treated as an existential issue. On the eve of the referendum, the Latvian State President, the Prime Minister, and the Speaker of the Saeima addressed the people, urging them to vote against the motion. A group of prominent Latvian intellectuals published an open letter, where they invoked the “rights obtained by the blood of our forefathers” and compared the referendum to “an attempt to rape a woman or abuse a child.” ⁵⁴

However, along with the short-term effects of ethnic mobilization and emotional upheaval, the referendum also led to institutional changes in the direction of substantive, militant democracy. The easy way of initiating a referendum on such a fundamental issue like the state language forced politicians, legal scholars and public intellectuals to rethink the earlier proceduralist approach to democracy and the institutional foundations of the Latvian state.

“Constitutional Core” and Preamble

As noted before, the support of the Russophone party “Harmony Centre” was crucial for the referendum initiative. The ruling coalition of ethnic Latvian parties, dominated by the centre-right “Unity”, however, was only one of several authors of the militant response. This allows us to qualify the thesis about the primacy of party politics in the nation-building in Latvia. ⁵⁵ Indeed, in some cases party politicians and the ruling coalition only followed militant initiatives proposed by other actors in the public sphere. Along with political parties, an outstanding role was played by non-partisan constitutional lawyers, by judges of the Supreme and Constitutional courts, as well as by the non-partisan State President.

Mainly due to the referendum, the possibilities to limit such constitutional amendments were increasingly debated. On 20 December 2011, the State President Andris Bērziņš reluctantly fulfilled his constitutional obligation and submitted the two-languages initiative to the Saeima, whose refusal to adopt it, according to the Latvian Constitution, leads to an obligatory referendum. In a public letter to the Speaker of the Saeima, he simultaneously stated that such initiatives lead to “giving up Latvia as a national state and are in contradiction with the core of constitution, with ideas fundamental for the establishment and restoration of independence of the Republic of Latvia.” ⁵⁶ Bērziņš asked his presidential Constitutional Law Commission to produce a report on the defence of the foundations of the Latvian state.

In September 2012, the Commission, consisting of five prominent legal scholars and led by a Judge of the European Court of Justice, Egils Levits, produced its Opinion on the Constitutional Foundations of the Latvian State and the Inviolable Core of the Satversme. ⁵⁷ Despite its unpretentious title, the Opinion contains the most elaborated conception of Latvian militant democracy and nation-building. It serves as the theoretical justification of militancy not only in the interpretation of the Satversme but also in other spheres. Written mainly by German-educated Levits, this document explicitly denounces “Weimar positivism” and heavily employs the concept of militant or self-defending democracy (pašaizsargājošā demokrātija). ⁵⁸ Its primary aim is the protection of the basic foundations of the Latvian state, first of all, the pre-eminent role of the Latvian language and culture. At the same time, the Opinion provides us with a particular conception of democracy that strongly ties together democratic and nation-building elements.

The first task of the Commission was to prove the existence of an inviolable core of the Latvian constitution. This task was particularly problematic since the written text of the Satversme does not envisage immutable clauses. Moreover, it explicitly states (Article 77) that even the basic articles dealing with the democratic, republican form of governance, Latvian as the only state language, and territory, can be amended—albeit only by a popular referendum. In order to prevent such amendments, the Commission decided to introduce the idea of the constitutional core, which makes certain principles inviolable despite the possibility to amend them ostensibly provided for in the written text. The unwritten core of the Constitution protects the identity of the state:

The core of the Satversme includes the constitutional identity of the Latvian state and posits its defence (inviolability). In this context, the core of the Satversme would be defined as a principle of constitutional law (accordingly, an unwritten norm), which supplements the written text of the Satversme by not allowing the constitutional legislator to change the constitutional identity of the Latvian state. ⁵⁹

According to the Commission, the identity of a state consists of two elements—the legal identity (valststiesiskā identitāte) of a state and the identity of the state order (valsts iekārtas identitāte). The legal identity is logically and empirically prior to the identity of the state order. A state may change its political regimes without changing its legal identity. The legal identity provides an answer to the existential question, Why was the state of Latvia established? What is the purpose and meaning of the state of Latvia? ⁶⁰

The answer to this question lies in the national nature of the Latvian state. That is, the purpose and meaning of the state of Latvia is to express the will for self-determination of the Latvian nation, which is conceived here as an ethno-cultural entity and, at the same time, as the pouvoir constituant. The terminology plays a role here. The text of the written constitution includes reference to the “People of Latvia” (Latvijas tauta) as the bearer of state sovereignty (Article 2)—as distinct from the term “Latvian people” (latviešu tauta), which, in Latvian, has an unambiguous ethno-cultural meaning and does not appear in the constitution. Traditionally, this constitutional statement has been regarded as an expression of liberal republican understanding of the Latvian nation—the sovereignty of the Latvian state was seen as founded on the will of its citizens of all nationalities. ⁶¹ With the Opinion this understanding of popular sovereignty was substantially redefined more in line with ethnic democracy. The identity of the Latvian state was fixed to the Latvian ethno-cultural identity:

To sum up: the state of Latvia was founded by the [ethnic] Latvian nation. The purpose of its foundation was to create a state-based framework where the Latvian nation as a political-legal subject could democratically determine itself. . . . Latvia is the national state of Latvians. ⁶²

The Commission provides mainly historical arguments for this statement. In 1918, Latvia was created in the ethnographic territories inhabited by Latvians; the founding fathers often appealed only to Latvians in their public pronouncements; minorities joined in only later, and the like. Since only Latvians initially needed Latvia, they are the “state-bearing nation” (valstsnācija) there: “the national state of Latvia is a project of exactly—and exclusively—the Latvian nation.” ⁶³ The existing constitutional formulation “people of Latvia” is only a political reformulation of the ethnic Latvian nation and includes ethnic minorities in order to make democratic governance possible.

The principle of democracy also belongs to the constitutional core. Latvia is committed to a Western-style democracy. It takes part in several international organizations that monitor compliance with the basic norms of democracy. However, democracy does not define the legal identity but the identity of the state order, and is logically subordinated to the legal identity, and correspondingly, to the principle of the national state. Latvia is a democratic country because the ethnic Latvian pouvoir constituant wanted it: “This type of government is already included in the constituent power of the Latvian nation to create its state with a particular political order.” ⁶⁴ Democracy is a value to be defended because the ethnic Latvian nation expressed its political will in this particular form.

In the final part of the Opinion, the authors expressed the need to make the core of the constitution visible in the written text of the Satversme by introducing a new preamble or introduction. The idea was eagerly accepted by Latvian right-wing political parties, especially “Unity” and the National Alliance, who saw it not only as the consolidation of the basic constitutional principles, but also as a means to secure their basic values against the growing influence of Russophone parties. The original draft of the Preamble was prepared again by Levits and included all the main ideas of the Opinion. ⁶⁵ During political negotiations, however, the text underwent significant changes. For example, the concept of the ethnically defined “state-bearing nation” was dismissed because of its ambiguity. The Saeima accepted the final version of the Preamble on 19 June 2014, ⁶⁶ with only twenty-nine “Harmony Centre” MPs voting against the motion. Its main purpose is largely expressed in the first sentence, which mentions Latvian ethno-cultural identity three times:

[1] The state of Latvia, which was proclaimed on 18 November 1918, has been established by uniting historical Latvian territories based on the unwavering will of the Latvian nation for its own State and on the inalienable right to self-determination in order to guarantee the existence and development of the Latvian nation, its language and culture for over centuries, to provide freedom and promote prosperity for the people of Latvia and for each individual.

The militant protection of the constitutional “core” emphasizes substantial values and a strong interdependence of nation-building and democracy: there is no democracy in Latvia without the ethnic Latvian nation. The amendment marks a move towards the model of ethnic democracy: since the Latvian state has been founded exclusively by the ethnic Latvian people, they also bear the sole responsibility for its future existence. It establishes a hierarchy among ethnic groups in Latvia, whereby the civic nation is only of secondary importance vis-à-vis the ethnic Latvian “state-bearing” nation. Latvia as a national state of ethnic Latvians is logically and historically prior to democracy, which is only one of the possible forms of governance.

Registering Parties

One of the areas where the doctrine of the core of the Satversme was used as an instrument of militant democracy is the policy towards political parties. As stated before, the Latvian approach to political parties had been rather liberal. The requirements for founding a party were largely procedural; no party had been banned or denied registration after the 1991 ban of the Communist Party. However, the situation changed in the aftermath of the 2012 referendum, when an already existing party was denied re-registration on grounds of democratic militancy.

The party “13th January Movement” was founded in 2009 and led by Vladimirs Lindermans, a Russophone activist and a leading figure behind the two-languages referendum. Shortly after the referendum, in July 2012, mainly out of a desire to exploit its increased public visibility, this previously marginal party changed its name to “For the Native Language!” (Par dzimto valodu!) Although the change was accepted by the Enterprise Register (the state authority responsible for registering parties), the Justice Minister Jānis Bordāns of the right-wing nationalist National Alliance declared: “A political force founded and led by such anti-state persons threatens societal security.” ⁶⁷ At the time, however, his words did not have any immediate consequences.

State authorities paid special attention to the party, since in January the Enterprise Register received information from the police about putative violations of law in the party registration process in 2009, which were never proved. In February 2013, the party decided to change its name once again, this time to “Linderman’s party ‘For the Native Language!’” When the new application of the name change arrived, the notary of the Enterprise Register Lilita Strode denied the registration of the party under the new name. Her decision was based on the fact that the new programme of the party included demands for Russian as the second state language and broad autonomy for Latgale, the South Eastern part of Latvia with a high proportion of Russophones. According to Strode, such demands were anti-constitutional, since they violate the basic principles of the constitution and its core—accordingly, the Latvian nature and the territorial unity of the state. ⁶⁸

This decision was regarded as highly controversial even among lawyers, since the written text of the constitution explicitly allows changing the corresponding clauses in a referendum. Moreover, if all proposals to amend the constitution were to be regarded as anti-constitutional, no constitutional change would ever take place. Article 20.4.1 of the Law on Political Parties states that the programme of a party cannot contradict the Satversme. However, by definition, all constitutional amendments contradict the Satversme in some way. The majority of lawyers supported Strode’s decision to refuse the registration. However, most of them doubted her argumentation, which basically declared all constitutional changes anti-constitutional. The final argument was provided again by Levits in his commentary on Strode’s decision. Upholding the decision, it was repeated word for word by the acting Notary General Sandis Karelis in his response to the party’s appeal:

What is meant by the word “Satversme” in the Law on Political Parties, Article 20.4.1, is not the whole Satversme, but only and exclusively its core. . . . No one is given the right to abolish the (existing) state of Latvia by either legal or illegal means, by eliminating or substantially amending any of the criteria that constitute the identity of the state, nor to abolish its democratic order by eliminating or substantially amending any of the basic principles that shape its democratic identity. ⁶⁹

The short-term consequences of the “For the Native Language!” case have been rather limited. The party continues to operate under its old name, gathering around 0.8 percent of support in opinion polls. Its representatives even won a libel case against Minister Bordāns for his expression about “anti-state persons.” However, the long-term consequences of this first case might be more disturbing. If a party can be denied registration by the Enterprise Register, referring to the unwritten core of the constitution, it might create a possible threat to political pluralism in Latvia in the future. This case shows how the previously largely procedural norms acquire a new substantial meaning, when, by challenging nation-building, a radical political party is seen as endangering democratic statehood itself. However, the defence of the Latvian language as the sole state language and the opposition to Latgallian autonomy cannot be regarded as a feature of ethnic democracy. The defence of a particular language can also be seen as an expression of liberal republicanism, emphasizing the civic equality and common public sphere. The same applies also to the autonomy of Latgale. Although the unitary nature of the Latvian state doesn’t belong to the constitutional core, the possibility that a region with the highest proportion of non-Latvians might proclaim its autonomy was seen as a threat to the Latvian nation-building.

Popular Initiatives and Referenda

Another field of increased militancy of Latvian democracy is the regulation of popular legislative initiatives and referenda. The 2012 referendum on Russian as the second state language created a sense of vulnerability among the Latvian political elite and consequently triggered the following surge of militancy. The institutional regulation of popular initiatives and referenda became the object of increased scrutiny—both from the procedural and substantive points of view. Also here, procedural norms were reinterpreted in a new, substantial manner, thus reinforcing the link between a particular type of nation-building and democracy.

The problematic role of referenda has already been noted by scholars of militant democracy, for example, Andras Sajó, who, following Karl Löwenstein, regards them as a form of “emotional politics.” ⁷⁰ Compared with other European constitutions, the Latvian Satversme provides a wide spectrum of instruments of direct democracy. One-tenth of Latvian citizens can submit a legislative proposal or a proposal for constitutional amendment (Article 78). The State President or at least one-third of the Saeima members can put any legislation to a national referendum after its adoption by the parliament (Article 72). The most significant constitutional amendments have to be ratified in a referendum (Article 77). And, since 2009, one-tenth of Latvian citizens even have the right to initiate a referendum on the dissolution of the Saeima (Article 14), a quite uncommon procedure in the European context. Not less uncommon is the regulation of the popular initiative, whose rejection by the parliament leads to an obligatory referendum. ⁷¹

According to this provision (Article 78), parliament has no right to reject or amend popular initiatives without having a referendum at the end. In recent Latvian history, this article has mostly been used by opposition forces in order to draw public attention to their causes. Since the quorum for referenda is quite high (half of Latvian citizens for constitutional amendments and half of the participants in the previous Saeima elections for ordinary laws), in most cases referenda have produced no binding results.

Nevertheless, the use of this provision for populist reasons has been quite widespread and the 2012 Russian-language referendum was a blatant example of this tendency. This led to a fundamental reconsideration of the direct democracy procedures both by the legislature and the Constitutional Court.

In January 2012, shortly before the Russian-language referendum, a group of Latvian right-wing MPs from “Unity” and the National Alliance turned to the Constitutional Court with a demand to suspend the referendum. ⁷² Their argument was as follows: a legislative initiative, which contradicts the basic principles of the Latvian state and the core of its constitution, cannot be regarded as “fully elaborated.” The Constitutional Court rejected the claim. However, it caused a widespread discussion among lawyers, politicians, and civil servants about which state institution is responsible for evaluating the “full elaborateness” of a legislative proposal—whether it is the Central Electoral Commission, responsible for the gathering of signatures, the State President, who is responsible for submitting the legislation to the Saeima, or some other institution. During this debate, the words “fully elaborated” acquired a completely new meaning. Until 2012 they were usually treated from a purely procedural point of view, which sometimes did not prevent even grammatically erroneous proposals from being regarded as “fully elaborated.” ⁷³ From now on, it increasingly meant the in-depth constitutional analysis of the proposed legislation, not only regarding the written text of the constitution, but also regarding its unwritten core.

This new, militant reading of the referendum legislation acquired concrete shape when, in autumn 2012, another group of Russophone radicals tried to initiate a referendum on citizenship. According to this initiative, all Latvian non-citizens were to be automatically given Latvian citizenship unless they refuse it themselves. There were no prima facie obstacles for such a referendum, especially because the Citizenship law has been voted upon in a referendum before, in 1998. This time, the Central Electoral Commission asked some of the most prominent legal scholars and institutions (universities, institutes, ministries) to provide their opinions on the permissibility of such a referendum. Although these experts provided diverse and even contradictory reasons, they all came to the conclusion that the referendum on the extension of citizenship is not permissible. These reasons were later summarized and elaborated in the judgment of the Senate of the Supreme Court, which denied the appeal of the authors of the initiative. ⁷⁴

First of all, the proposed initiative ostensibly contradicts the doctrine of the state continuity of Latvia, grounded in the Declaration of 4 May 1990. According to this doctrine, the Republic of Latvia is the legal continuation of the state founded in 1918, whose de facto independence was interrupted by foreign occupation. The continuity of the state also presupposes the continuity of citizenship, which cannot be arbitrarily enlarged. Therefore,

a massive, unconditional enlargement of the People of Latvia with persons, who have no historic connection with the original body of citizens (with those citizens, who were recognized as such in conformity with the 1919 Law on Citizenship, or with their descendants), distorts the legal statehood of Latvia. ⁷⁵

Of course, there have been cases in other countries when the body of citizens is extended without jeopardizing the identity of the state. It happened in Lithuania in 1991, for example, when the newly independent democratic regime chose the so-called zero-option for Soviet-era immigrants, at the same time not losing the country’s identity. However, according to the Latvian Supreme Court, such a comparison is not relevant, since in Lithuania the amount of Soviet-era immigrants is much smaller. The enlargement of the body of citizens is anti-constitutional and, as such, cannot be proposed for a referendum:

The People as an entity exists independently of its members. Its composition changes constantly, but slowly; however, with the passing of time, it retains its historic continuity and identity. Hence Latvia, like every other country, requires the individual who wants to become a member of the People of Latvia by becoming a citizen to be integrated in his new community. (18) ⁷⁶

This approach follows the liberal republican understanding of democracy. The Latvian language and public culture belong to the Latvian people as a whole, not only to ethnic Latvians. For newcomers, it is possible to become a part of the Latvian political nation. However, it requires acquisition of language and public culture, which can happen only slowly. Citizenship, however, is regarded as a result and not as a precondition of such integration.

In the judicial praxis, the element of militant democracy and emphasis on substantive principles in the regulation of referenda has been increasingly visible. However, the debate among legal scholars and institutions did not provide an unambiguous answer: which institution is responsible for the pre-emptive review of popular initiatives? Since the third popular initiative—again initiated by Lindermans—was under way, this time on the autonomy of Latgale, parliament decided to take legislative action to restrict such initiatives. This time, it was done by procedural means.

Until 2012, the procedure of popular initiatives included three stages, regulated in the Law on Popular Referenda and Legislative Initiative. At the first stage, ten thousand signatures have to be gathered in a year’s time, at the initiators’ expense. When these signatures are submitted to the Central Electoral Commission, it organizes a state-funded second stage of the signature gathering, which lasts for one month and has to gather signatures of one-tenth of Latvian citizens (currently around 150 000). If this stage is successful, the initiative counts as submitted, and if the parliament doesn’t adopt it without amendments, the referendum takes place. This three-stage regulation was very liberal, since it allowed ten thousand Latvian citizens to initiate a campaign for the second stage, funded and organized by the state. This procedure was amended immediately after the 2012 referendum, and significant restrictions on popular initiative were introduced. The authors of the amendment referred to the necessity to spare public money, to make the regulation more “comprehensive.” However, the main motive was provided by the Chairwoman of the Legal Affairs Committee, Ilma Čepāne: “A minority, say, 0.3 percent of citizens cannot be given the right to terrorize the majority.” ⁷⁷

The new legislation (The Law on Popular Referenda, Legislative Initiative, and European Citizens’ Initiative) was adopted by the Saeima on 8 November 2012. Along with establishing the European Citizens’ initiative, this legislation abolishes the first stage of the domestic initiative procedure and substantially reduces state participation in the initiative process. From 1 January 2015, the authors of the initiative will be obliged to gather the signatures of a tenth of citizens by themselves, previously submitting the text of their initiative to the Central Electoral Commission for review. In return, the state is obliged to provide a reliable system for gathering signatures online (as of June 2015, this system is still not available). Until 2015, the first stage is retained, however, with a significantly elevated participation threshold—thirty thousand instead of the previous ten thousand (the initial proposal of fifty thousand was rejected by the State President). These restrictions were upheld also by the Constitutional Court in February 2014. In its view, the restrictions were commensurate and justified, since a large amount of unprepared and possibly anti-constitutional initiatives may lead to dissatisfaction and political passivity among Latvian citizens: “The legislature has an obligation to prevent the decrease in civic participation, caused by careless legislation being proposed by means of citizens’ initiative.” ⁷⁸ This argument might seem somewhat circular and self-contradictory. Nevertheless, the court found it consistent with the understanding of democracy of the Latvian constitution.

Restrictions on popular initiatives and referenda in 2012–2014 were seen as an instance of self-defending democracy. The judiciary mainly chose the substantive approach, referring to the basic values and to the core of the Constitution. The legislature, however, opted for a more procedural approach, making the institutional regulation more complicated. However, the militant purpose has been acknowledged expressis verbis by the legal representatives of the Saeima, when the case appeared before the Constitutional Court. According to them, it was “necessary to defend the democratic state order by reducing the opportunities to promote careless proposals, or proposals exposing the basic foundations of the State to danger.” ⁷⁹

Citizenship Law

Along with constitutional change, alterations in the practice of party registration and referendum legislation, the wave of militancy after 2012 also affected some other institutional fields. Here, their impact has been less direct, and the link to the immediate threats posed by the two-languages referendum less obvious. In 2012, the Saeima decided to amend the Citizenship law. This law had not been amended for fifteen years and is regarded as one of the most important foundations of contemporary Latvian democracy—not least because of the incessant attention paid to the country’s citizenship issue by international organizations. Initially, the restriction on acquisition of citizenship was not among the reasons for amending the law. On the contrary, it was the necessity to broaden the possibilities of acquiring dual citizenship for ethnic Latvians living abroad—a task made urgent by the considerable emigration of Latvians to other EU countries. However, when the law was opened in the Saeima, parliamentarians decided to include other amendments having little to do with this initial purpose.

First of all, the new version of the Law, adopted on 9 May 2013, cemented the already existing right of ethnic Latvians to Latvian citizenship. The wording is important here. For the first time, when talking about ethnic Latvians, the legislator used the term “state-bearing nation” (valstsnācija). This term was initially coined by Egils Levits in the Opinion on the Constitutional Foundations of the Latvian State and the Inviolable Core of the Satversme and intended to underline the prominent role of the ethnic Latvian nation in the Latvian state. This conception was now integrated in the citizenship legislation, thus emphasizing the ethnic element of the nation-building. ⁸⁰

The changes to the naturalization procedure, however, were more in line with the liberal republican approach. First of all, the opportunities of the children of Latvian non-citizens to acquire citizenship were considerably broadened: although they still have no right to automatic citizenship, the children can acquire it, if at least one of the parents wants Latvian citizenship for the child. This liberal norm implicitly acknowledges that a person born in Latvia to Latvian non-citizens is integrated enough to became a part of the Latvian demos. Along with making citizenship policies more inclusive for the children of non-citizens, the amendments introduced a stricter approach to adult applicants. Naturalization can now be refused to those applicants whose

behaviour or actions that expose to danger the security of the Latvian state and society, the constitutional order, state independence and territorial integrity, including those who have opposed the independence of the Republic of Latvia, its democratic and parliamentarian system, or the existing state authority of Latvia. ⁸¹

The previous version of this Article demanded the judgement of the court in order to deny naturalization to those who had “opposed with anti-constitutional methods the independence of the Republic of Latvia, its democratic and parliamentarian system or the existing state authority of Latvia.” The new regulation, however, doesn’t demand such a ruling. Also, the words “with anti-constitutional methods” are absent from the amended version, considerably widening the scope of behaviour and action which may disqualify the applicant. Moreover, according to the new version, the final decision on the naturalization of a person is transferred from an apolitical state agency, the Board of Naturalization, to the Cabinet of Ministers, whose decision cannot be appealed.

Conclusion

Along with the changes described above, the wave of militancy involved other, smaller political initiatives intended to secure Latvian democracy and nation-building. On 15 May 2014, Saeima criminalized the denial, justification, public glorification, and gross trivialization of concrete episodes in Latvian history: the genocide committed by the USSR or Nazi Germany, of crimes against peace, or war crimes against the Republic of Latvia and its inhabitants. ⁸² These changes also fit in the broader tendency of increased protection of Latvian democracy and nation-building.

The analysis of this many-sided development leads us to several important conclusions. First of all, the earlier expectations that the political salience of nation-building will fade out with passing of time and development of democracy seem to be refuted. The nation-building does not necessarily precede democracy in time; it can also become a permanent element of democracy. After twenty years of independence and almost a decade of membership in the EU and NATO, the political significance of nation-building is clearly on the rise in Latvia. The militant measures, introduced by the Latvian political elite, demonstrate this tendency. The 2012 referendum served as a trigger event here: threats to the status of the Latvian language provoked the perceived need to defend the “nation” and, consequently, the Latvian democracy itself.

The understanding of the nation-building at the core of militant initiatives is, however, by no means unambiguous. The model of ethnic democracy is applicable to the Latvian elite’s conception of nation-building only with serious reservations. The new Preamble of Satversme, which emphasizes the hierarchically superior role of ethnic Latvians and their exclusive role as the “state-bearing nation,” the reassertion of their privileged status in the citizenship legislation—all these elements, emphasizing Latvia as a state of and for ethnic Latvians, belong to the repertoire of ethnic democracy. On the other hand, however, there are also significant elements of liberal republican approach in the recent wave of militant democracy, underlining loyalty to the state and its public culture. It is most clearly seen in the Supreme Court’s decision to ward off the attempts to automatically provide the Latvian citizenship to all non-citizens. In order to acquire citizenship, a person must be integrated in the Latvian society and express his or her individual willingness to belong to it. However, when an individual has acquired the citizenship, he or she is a full member of the Latvian polity without reference to his or her ethnic identity. Both approaches to democracy, ethnic and liberal republican, are present in the Latvian nation-building. Also, some earlier researchers have noted this conceptual incoherence of the Latvian approach to nation-building, ⁸³ with liberal elements often contradicting conservative and even ethnocratic approaches. It may have had possible negative influences on the very process of integration. The emphasis on the exclusivity and dominant role of ethnic Latvians may be hard to reconcile with the idea of open political community and liberal republicanism.

As for analysis in militant democracy, the recent Latvian case shows a clear movement towards more substantial approach. Until 2011, Latvian democracy was largely procedural, with some signs of moving into substantial direction. The changes after the two-languages referendum triggered a significant increase of substantial regulations, first and foremost, the Preamble of Satversme, which mentions the core values of Latvian democracy. Nevertheless, the wave of militancy did not affect only substantial, but also procedural aspects. The regulation of popular initiatives and referenda is the case in point. In order to prevent similar “subversive” initiatives taking place again, the Latvian parliament decided to raise the required amount of signatures to initiate a referendum. In some cases, like the “full elaboratedness” of legal initiatives, militant democracy expressed itself not in formal amendments but in new, militant interpretations of existing legal norms. What unites all these militant steps is their purpose—the protection of Latvian democracy in close linkage with a particular conception of nation-building.

Finally, a normative question can be asked. To what extent can the protection of certain substantive elements (like national or religious identity, secularism, or particular past experiences) be regarded as legitimate elements of a country’s democratic identity? And at which point does the necessity to preserve particular democratic institutions begin to serve only as a pretext for defending other, ethnic, religious, or social interests? Otto Pfersmann rightly warns against mindless extension of militant democracy to other substantive domains: “When the inclusion of the relevant domain reaches its maximum extension, . . . it may become extremely difficult to determine what exactly the object of protection consists of.” ⁸⁴ In most cases, these substantive elements include what the majority regards as preconditions of a “good life” in a democratic community. Insofar as they comply with the general principles of democracy, basic human rights, and free political competition, these elements are a legitimate part of understanding of democracy in a particular society. In this sense, the nation-building or secularism can be protected by the institutions of militant democracy. Yet, in cases like Latvia, where there is a potential tension between principles of democracy and its substantive preconditions, only the democratic process itself can adjust relations between them. The idea that a true democracy can avoid its preconditions being subjected to political struggle and partisan confrontation seems to be rather naïve—even despite militant attempts to protect the foundations of democracy. Also in the context of Latvian democracy, the struggles about the nation-building and citizenship will most probably continue, especially taking into account the persistence of the ethnic cleavage in party politics and the geopolitical activism of Russia. Meanwhile, it is important to remember that by “defending democracy” one can mean many different things.