Jonathan Campbell
It is usually the
case that it is harder to amend a constitution than it is to amend a law. This
statement holds true with Sweden's constitution. In order to propose an
amendment to the constitution, a bill from the Government must be submitted to
the Riksdag (1). To actually pass the amendment and change the constitution,
the Riksdag must pass identically worded resolutions on two different
occasions, separated by a general election (2). This is used in part to give
the voters a chance to stop the amendment, however, cross block border
negotiations usually prohibit the voters from having any power in stopping it
(3). Prior to 1980, an ordinary majority was needed to amend the constitution,
and after 1980, there had to be between two-thirds majority and an ordinary majority
to amend the constitution (4). While this made it more difficult to pass an
amendment, Sweden still lies on the lower end of the spectrum with a smaller
index of constitutional rigidity compared to other democracies (4).
It is a little tricky
to establish whether or not the amendment rule is identical to the process by
which the Swedish constitution was originally ratified. This is due to the fact
that there are four fundamental laws that make up the constitution, all of
which were ratified at separate times. The oldest fundamental law, The Act of
Succession, was enacted in 1810 by the Riksdag of the Estates, which dissolved
in 1866 (5). The most recent version of the Freedom of the Press Act was
instituted in 1949, although the original dates back to 1766 (6). The
Instrument of Government and the Fundamental Law on Freedom of Expression were
enacted in 1974 and 1991 respectively (7). Given the time disparity between the
four fundamental laws, it is quite clear that the amendment rule is not
identical to the process by which the constitution was ratified, which is a
result of hundreds of years of different laws between the oldest and newest
parts of the constitution.
Unlike the constitution of the United States, the Swedish
constitution spells out the allowance of judicial review to a certain extent.
Furthermore, Sweden practices civil law, which means that the courts use a
case-by-case application of existing laws (8). The constitution states that,
"if a provision conflicts with a rule of fundamental law or other superior
statute, or finds that a procedure laid down in law has been disregarded in any
important respect when the provision was made, the provision may not be
applied" (9). However, the constitution proceeds to state that if the
provision is approved by the Government or the Riksdag, it shall be waived only
if the error is manifest (9). This means that only when the error is
indisputable and obvious, it shall be waived. Swedish courts have the ability
to choose which laws they review, making the system active judicial review
(10). Although the constitution has a provision for judicial review included,
the courts are extremely reluctant to use it and only do so in times where the
unconstitutionality of a law is manifest (4). Thus, Sweden's courts practice
civil law and have an active judicial review, albeit it is not often used.
(1) http://www.government.se/sb/d/12711/a/138927
(2) http://www.government.se/sb/d/2707/a/15187
(3) http://www.stockholmnews.com/more.aspx?NID=6283
(4) Lipjhart Ch. 12
(5) http://www.fact-index.com/r/ri/riksdag_of_the_estates.html
(6) http://www.government.se/sb/d/2853/a/16199
(7) The Constitution of the Kingdom of Sweden
(8) http://ox.libguides.com/content.php?pid=276582&sid=2279057
(6) http://www.government.se/sb/d/2853/a/16199
(7) The Constitution of the Kingdom of Sweden
(8) http://ox.libguides.com/content.php?pid=276582&sid=2279057
(9) Swedish Consitution Ch 12, Art. 14
(10) Lecture 11.2
(10) Lecture 11.2
Kyle Tuckman
ReplyDeleteAlthough Sweden is relatively on the lower side of the level of constitutional rigidity its constitution holds (1), it still has decently rigid rules. A constitutional amendment can either be accepted by identical decisions of two successive Parliaments, or by means of a single decision approved by at least three fourths of the MPs taking part in the vote, provided that they represent more than half of the total membership of the Riksdag (2). Considering these qualifications, it is somewhat surprising that the country has a high constitutional amendment rate (1,08) and a significant number of amendments (40) (3). This can be explained as a result of cross-party negotiations (3). For example, in 2010, seven parliamentary parties voted in favor of constitutional reform in the Riksdag. This means that that if the first legislature approves the constitutional amendment, then it will not be a discussion in the electoral campaign in the ensuing election before the second parliamentary vote necessary to pass. Essentially, institutions such as political parties can either make it easier or more difficult to amend a constitution (3). With a lack of veto players, political parties’ agreements can get through even the most rigid constitutional amendment structures.
To touch on the reasoning behind choosing the rules for what is necessary for a constitutional amendment, it is usually done under the assumption that the constitutional actors can predict the future outcomes of the application of these rules. However, failures to predict the whole range of all possible outcomes seem inevitable in rational decisions, since unintended consequences seem to be co-substantial to institutional choice (3). Presumably, the goal of the constitutional makers of the time was to protect the rights of the minority through increased constitutional rigidity. In practice though, other possible outcomes such as the constant cooperation across party lines that could not be predicted inhibited this goal from becoming a reality.
It also makes complete sense that that Sweden would have so many formal constitutional amendments in the past, being that in practice, “the legislature’s laws are supreme and not subject to judicial review.” (4) In countries like the US, informal amendments are relatively normal being that judicial review is so common. Since Sweden is a civil law country, the Judiciary has less opportunity to make law through setting precedent, and so the large amount of formal constitutional amendments follows from the lack of informal amendments.
(1) Lijphart, ch. 12, pg. 209
(2) “The Kingdom of Sweden” CCW Files pg 6.
(3) Essay,“ Constitutional Rigidity and Procedures for Ratifying Constitutional Reforms in EU Member States” By: Carlos Closa https://www.academia.edu/1516528/Constitutional_Rigidity_and_Procedures_for_Ratifying_Constitutional_Reforms_in_EU_Member_States
(4) Lijphart, ch. 12, pg. 217
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ReplyDeleteDaniel McCarthy
ReplyDeleteIn general, consensus countries tend to have a rigid constitution, which is difficult to amend and has many amendment hurdles. As we see Sweden as a consensus country, it is very easy to fall into the trap of framing the amendment process as being rigid, however this is not the case. Sweden requires an ordinary majority to pass an amendment, which Lipjhart categorizes as the least rigid (1). While others may argue that the rigidness is there since the constitution does require that a majority must vote for it to pass on two separate occasions, the second being at least nine months after and post-election, this still does not necessarily make it rigid (2). This is due to the fact that the past thirteen elections have ended with the Social Democratic Party emerging as the leading party with an average of roughly 39.9% of the seats (3). Needing barely more than 10% more for an ordinary majority, it is clear that they can form a majority through coalition, as they often do, and pass something with an ordinary majority (4). Since they have consistently won and held their seat share, the constitutional rule of two votes certainly does not make it rigid.
I believe that the “Swedish Constitutional Acts are unusually easy to change or amend” due to the strong trust in the Riksdag (5). As chronicled in other blog posts, the Riksdag is in control of law making and has authority over the executive branch (6). It is clear that those who made the constitution believed in the Riksdag, giving them pretty progressive rule. This wide rule ties well with the non-rigid amendment hurdle, since the Riksdag can make changes through amendments more easily, another showing of trust and confidence in the Riksdag to govern.
Sources:
(1) Lipjhart pg 220
(2) Swedish Constitution: Chp 8 Art 14
(3) “Election Results” http://www.electionresources.org/se/riksdag.php?election=2014&constituency=
(4) “2014 Swedish Elections” http://www.theguardian.com/news/datablog/2014/sep/11/swedish-elections-sweden-votes-2014-key-facts
(5) “The Kingdom of Sweden” CCW Files Pg 6
(6) Swedish Constitution: Chp 1 Art 4 and 6
Eileen Loftus
ReplyDeleteAs stated in previous posts, the level of difficulty for amending the Constitution is rather low in Sweden that is often not the case with consensual governments (1). Only a majority of the Riksdag is needed to pass an amendment that is clearly not as stringent as some other political systems. Granted, it needs to pass through the Riksdag twice once there is a change in the composition of the legislature, but this second election has rarely proven to be a problem (2). Yet this dissonance with the traditional consensual model makes sense in light of the goals of the government. The intent of the authors of the Constitution in choosing such a system is based on the country’s ideals of popular sovereignty (3). Allowing the laws to be changed easily demonstrates the government’s willingness to change with the people, and it also reflects lawmakers’ dedication to have a Constitution that resonates with the people and is not seen as outdated. The sheer volume of additional Constitutional amendments (numbering over 200 since 1974) resonates with this ideal of changing and adapting to the needs of the people over time. This flexibility is far from the norm compared with most other countries (3).
When it comes to informal amendments, there is generally a lack of judicial power to shape the law. The limited powers of the justices in effecting policy change again comes from the government’s desire to adhere to popular sovereignty (4). The power of judicial review didn’t even exist in the Constitution until 1979, and in it slowly started to pick up more over time (4). The role of judicial review mainly consists of following the advice of the Council on Legislation on whether or not an amendment would be passed based on its constitutionality (4). But as recently as 2010, the Riksdag voted to add an amendment to the Constitution that would help judges in their decision to declare any potential amendment as constitutional (5).
(1) Lijphart, pg. 220
(2) Constitution Chapter 8, Article 14
(3) “The Kingdom of Sweden” (CCW Files) pg. 6
(4) “The Kingdom of Sweden” (CCW Files) pg. 14
(5) “Swedish Covenant Votes in New Constitution” http://www.thelocal.se/20101124/30410
Jason Gold
ReplyDeleteI steadfastly agree with the above comments about the post regarding Sweden and its government's amending/law alteration process and think that, given Sweden's consensual and democratic nature, it makes sense. I say this based on a simple comparison of the present day amendment process to that of Sweden's past.
Today, amending or altering the constitution in any way takes a long time and necessarily involves strong support from not only the public but also those represented in the Riksdag (for multiple years through multiple elections) (1). This amendment process, although lengthy and convoluted, has been exercised numerous times within Sweden's recent history. These changes are made possible by a rigid legal outline, but goals are available and achievable with support and representation (2). This makes sense and Sweden's sociopolitical history would logically explain this.
Sweden's political origin is one of chaos and power struggles. Over time, although maybe not on legal paper, the public grew frustrated with a lack of personal liberties and political representation. They began to form groups and coalitions that felt deserving of representation in government and say in every day life. As time went on, important fundamental rights and other laws have been added to the original constitution (3). These amendments, however, were met with scrutiny and more so achieved in a de facto manner years before anything de jure came into play (4). Sweden's social and political history coincide with how their government runs and deals with these issues curently. I agree with the post and comments above and think most of it can be logically explained from a historical standpoint.
(1) “The Swedish Constitution” http://www.government.se/sb/d/2707/a/151
(2) “Amendment to the Swedish Constitution” http://www.government.se/sb/d/12711/a/138927
(3) “The Constitution” http://www.government.se/sb/d/2853/a/16199
(4) “Politics of Sweden” http://en.wikipedia.org/wiki/Politics_of_Sweden