Defending Democracy: Sweden’s Constitutional Reform Proposals in Response to Democratic Backsliding in Europe
In response to democratic backsliding in Europe, a Swedish parliamentary committee has recommended constitutional reforms aimed at entrenching democratic structures and safeguarding judicial independence. Proposals include introducing a quorum requirement and increased voting threshold for constitutional amendments, requiring legal review of amendments impacting fundamental rights, and enhancing judicial independence in the administration of courts. The proposed reforms, while perhaps modest, are a pragmatic response to diverse political ideologies in parliament and reflect democratic consensus on gradual reform – writes Mikael Ruotsi
Background to the Reform Proposals
In March 2023, a Swedish Committee of Inquiry on the Constitution presented its final report, titled ‘Enhanced Protection for Democracy and the Independence of the Courts’. This all-party parliamentary committee was responsible for investigating the need to reform the Swedish constitutional amendment procedure and how to further strengthen the independence of courts and judges in the face of democratic backsliding in Europe. In its final report, the Committee made several reform proposals that will now undergo public consultation.
The Committee’s remit was formulated by the Government in 2020, taking note of recent developments globally, and in nearby countries, where democracy has been put under strain. While the Government highlighted that political parties in Sweden traditionally strive to find broad consensus when enacting constitutional amendments, it opined that the Swedish constitutional amendment procedure should be reviewed with the aim of further entrenching the basic structures of Swedish democracy. The Government noted in particular that in parts of Europe the independence of Supreme Courts and the central courts administration have been undermined – obviously referring to, but not explicitly mentioning, developments in Hungary and Poland. Hence, the Committee was also tasked with investigating the need to further strengthen the independence of courts and judges in Sweden.
In the following, the main proposals of the Committee are outlined and briefly commented on.
Amending the Constitutional Amendment Procedure
The Swedish Constitution consists of four fundamental laws: the Instrument of Government, the Act of Succession, the Freedom of the Press Act and the Fundamental Law on Freedom of Expression. Of particular importance for the democratic system in Sweden is the Instrument of Government, which contains the basic provisions regarding political decision-making in Sweden, including the establishment of the legislative and executive powers and a catalogue of fundamental rights.
The Swedish fundamental laws can be amended by two simple majority decisions by the Swedish parliament (Riksdag), separated by a general election. Furthermore, a minority of one-third of the Riksdag members can initiate a referendum on pending constitutional amendments. In such cases, the referendum takes place concurrently with the general election to the Riksdag that separates the two votes on the proposed constitutional amendment. However, it should be noted that this mechanism for a public vote on a pending amendment has never been used.
The Committee of Inquiry proposes that the second vote on a fundamental law amendment must be supported by a qualified majority of two-thirds of the members of the Riksdag.
The Committee of Inquiry proposes that the second vote on a fundamental law amendment must be supported by a qualified majority of two-thirds of the members of the Riksdag [Section 6.3.1 of the report]. In addition to this, the introduction of quorum rules is proposed for both the first and the second vote to amend a fundamental law, requiring that the specified majorities be calculated from the total number of members in the Riksdag and not from the number of members taking part in the decision (as is currently the case) [Section 6.3.2 of the report].
The Committee of Inquiry also recommends that amendments to fundamental laws concerning fundamental rights and freedoms should be mandatorily reviewed by the Council on Legislation, a body composed of current or retired Supreme Court justices, which performs non-binding ex-ante scrutiny of legislative proposals [Section 6.3.6 of the report]. Under the current system there is no requirement to submit proposed amendments to the Instrument of Government to the Council on Legislation. This may seem odd, but stems from a historical – and somewhat still prevailing – view of the Constitution as more of a political than a legal instrument.
Increasing the Independence of Courts and Judges
A main criticism against the organization of the judiciary in Sweden is the fact that the central court administration agency, the Swedish National Courts Administration, is an agency under the Government – much like other national authorities such as the Police Authority and the Swedish Tax Agency. In order to strengthen the independence of the judiciary, the Committee of Inquiry proposes that the court administration agency, while remaining an agency under the power of the executive – should be overseen by a board. This board should be composed of a majority of current or former permanent judges. Although the Government will appoint the board members, it may only select from candidates nominated by the courts, the Swedish Bar Association or the Swedish Agency for Government Employees. Representatives of the executive and legislative branches will not be allowed to serve on the board. The board will appoint the director of the court administration agency, whereas today the director of the Swedish National Courts Administration is appointed by the Government [Section 11.2 of the report].
The proposal stipulates that permanent judges can only be removed from office upon reaching a statutory retirement age . . . which cannot apply retroactively to current permanent judges.
Under the Committee’s proposal, permanent judges will continue to be appointed by the Government. However, the Committee proposes a new provision in the Instrument of Government, requiring these appointments to be made following a proposal from a specific body, consisting of a majority of current or former permanent judges. In light of recent developments, such as in Hungary, where a reduction in the retirement age forced the retirement of over 250 judges, the Committee further proposes a new provision in the Instrument of Government concerning the retirement age of permanent judges, including Supreme Court justices. The proposal stipulates that permanent judges can only be removed from office upon reaching a statutory retirement age, and that any changes to the statutory retirement age cannot apply retroactively to current permanent judges [Section 12 of the report].
For judges in the Supreme Court and the Supreme Administrative Court, the Committee proposes amending the Instrument of Government so that each court should have at least 12 and no more than 20 justices. Furthermore, the Government’s right to appoint Supreme Court judges would be made conditional on an appointment request from the court concerned [Section 16 of the report]. These changes are proposed in order to make it more difficult for the Government to exert undue influence over the composition of the Supreme Court by “court packing”.
Watered Down Proposals or Pragmatic Consensus Seeking?
On a critical note, if the proposed reforms aim to prevent a similar scenario to what transpired in Hungary and Poland, the reforms seem rather modest in scope. Essentially, the reforms are limited to introducing a requirement for a qualified majority when enacting constitutional amendments, creating a semi-independent court administration agency, and adding constitutional protection against court packing by means of retiring permanent judges. Whilst these are prudent steps to take in order to avoid a repetition of the Hungarian experience, it could be argued that a more far-reaching evaluation of constitutional safeguards for the rule of law and democracy in Sweden might be necessary. For instance, the Committee has only reviewed the Riksdag’s decision-making procedure concerning constitutional amendments but has not evaluated the rules concerning how such amendments can be initiated and prepared. Since the Instrument of Government does not contain any specific provisions on these matters – the same rules apply for the initiation and preparation of ordinary legislation – a more holistic approach to the question of constitutional amendments might have been warranted.
On the other hand, it could be argued that it is a sign of democratic strength that an all-party Committee was able to present reform proposals that found support by all parties in the Riksdag – no dissenting opinions have been attached to the Committee’s final report. The proposal to maintain the court administration agency as an authority under the Government, albeit with strengthened independence, rather than to create an institutionally independent judicial council (as suggested by the Consultative Council of European Judges, Magna Carta of Judges, Article 13), might initially seem like a watered down compromise. But it could also be viewed as a pragmatic response to the diverse ideological approaches of the various political parties in the Riksdag. As such, this approach may stand a better chance of finding the necessary support needed to be presented as an actual proposal to the Riksdag and respected by future governments and legislators. It could be that in order to maintain a political culture that respects constitutional values, reform should be a gradual process undertaken with the understanding that today’s minority may be tomorrow’s majority.
The next step in the legislative process is a public consultation, where the Committee’s proposals are subject to scrutiny by national authorities, universities, courts and other stakeholders, such as the Swedish Bar Association and human rights organizations. Their opinions must be submitted by 1 September 2023, after which the public consultation feedback and the Committee’s proposals will be considered within the Department of Justice. Seeing as many of the Committee’s proposals entail amendments to the Instrument of Government, it is expected that the proposed changes, assuming continued broad political support, would enter into force in 2027 following the 2026 election to the Riksdag.
Mikael Ruotsi is a senior lecturer in constitutional law at Uppsala University
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Suggested citation: Mikael Ruotsi, ‘Defending Democracy: Sweden’s Constitutional Reform Proposals in Response to Democratic Backsliding in Europe’, ConstitutionNet, International IDEA, 26 May 2023, https://constitutionnet.org/news/defending-democracy-swedens-constitutional-reform-proposals-response-democratic-backsliding
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