The Swedish constitution is unique in the Western world in that it contains stark differences between formal regulation and political reality. No other Western country has this many ”constitutional illusions”. They are important to know about, since Swedes may not be fully open about them. They may refer to form, but not be fully open about political realities.
The explanation to these constitutional illusions is simple. The Swedish constitution is a constitution written by and for the political elite, instead of by independent experts, and by and for the people. In other words, this is the type of constitution you get if politicians alone decide on form and content for a constitution.
In this article the most important constitutional illusions in Sweden are described.
1. Most of the Western democracies are based on 19 th century constitutionalism. The UK is an exception, without a written constitution. These are the two main types of systems. Sweden fits none of these two. Instead, Sweden has a constitutional charter of sorts, which is refererred to as ”descriptive” rather than normative, and as a ”guide-line” for legislators, rather than lex superior upheld by independent courts. Important parts of political life have also been left outside constitutional regulation. One example is the role of corporativist organisations. This was contemplated in 1974, but the apparent parallells to fascism deterred the politicians from describing and regulating this aspect of Swedish political life, in the final draft. This allows Sweden to, on the one hand, claim that there is a written constitution, and on the other, treat the same constitution as a moot point in everyday politics and in the courts. It also creates a constitution that gives a picture of Sweden as a more or less normal Western country, simply because important aspects of Swedish political life were left out of the constitution, for reasons of appearance.
2. According to the Swedish constitutional charter, all power rests with the parliament. In reality, members of parliament are highly dependent on the top-leadership of their political parties. There may be discent from the party-line, but it is very rare, and when it occurrs it is mostly in a form that does not alter the outcome of voting in parliament. This is why the Swedish parliament often is refered to as a ”transport company”. The real decisions are taken in the cabinet, or in negotiations between corporativist organisations, and are then verified post hoc by the parliament. The way this works is that party-leadership controls nominations. If you do not follow the party-line, you will most likely not be nominated in the next elections. There are furthermore unique trappings in the Swedish constitution that delegate substantial powers to the cabinet, powers that normally should belong to the legislators (chapter 8 in the constitution). This is perhaps the most blatant example of a have and have not. Formally, parliament has all power, but in reality it has almost none.
3. The Swedish constitution contains a list of human rights and freedoms. The social democrats did not originally want to include this list in the 1974 constitution. Their point of view was that human rights and freedoms were an obstacle to ”urgent social reforms”. In its time and context, this meant a gradual change of Swedish society towards so called ”functional socialism”. Capitalists would still own their property, but in reality that ownership would be a moot point. (In fact, another example of the systematic use of double standards in Swedish politics). The result was a compromise with the opposition, in which a list of rights was included, but at the same time a back door was opened that made it possible to override human rights by simple legislation. In other words, human rights seemed to be protected by the constitution, but in reality they could be violated overnight by a simple majority in parliament. This, in fact, led to another compromise later on, in which a 12 month delay for such legislation could be claimed by a 30% minority in the parliament. In the end, these rights also turned out to be a moot point in the courts, which meant that they were meaningless for ordinary citizens. See (4), below!
4. Sweden claims to have legal review, even more so than the U.K., which has almost no legal review for acts of parliament. Sweden has a constitutional clause, according to which civil servants and courts can disregard a government act, or an act of parliament, if it is in ”obvious” violation of the constitution. In 1978, the meaning of ”obvious” was interpreted by the parliament´s consitutional comittee. Their conclusion was that the parliament was infallible, and that the rule therefore hardly could apply. Sweden is also unique in that it has this same ”obvious” criteria for government acts that violate acts of parliament. For government acts, the U.K. has a clear form of legal review, and the courts regularly overturn such acts that violate acts of parliament. Sweden, furthermore, has a legal council that can review acts of parliament that have not yet been passed. However, this is not compulsory, and in 50% of cases with serious criticisms from this council, the law was passed anyway. The only real use of the verdicts of this council is therefore to embarass the government, if the opposition cares to do so. On the one hand, Sweden has legal review, on the other hand it has less so than any other comparable Western country, including the U.K.
5. We have already discussed the ways in which the rule of law is undermined in Sweden. Here we can note that the constitutional charter claims that the courts are fully independent. In reality, they are curtailed by the system of appointment and by legal doctrine. The main points in this legal doctrine are so called Scandinavian realism, combined with an interpretation based on the original political will, a so called teleological method. In other words, Swedish courts are instructed to disregard ethics and morals, and they are supposed to second-guess the original will of politicians, when they apply laws. In reality, they are also second-guessing the current will of the politicians. This moves the Swedish system beyond just rule by law, and into the realm of political dictates, rather than legislation. For this system to work, Sweden makes frequent use of very generally phrased legislation, that can be handled more or less gratuitously by the bureaucracy and the courts.
6. Sweden and Finland have a unique system of independent government agencies. In Sweden, government agencies are actually similar to the courts, in this regard. Ministers are not allowed to meddle in concrete issues. They can only guide policy with general written instructions. In reality, in Sweden, personal connections and the abuse of the power of appointment of general directors, turn agency integrity into a moot point. A government inquiry has even concluded that this is the way the system works in reality, and found no reason to change it. So, why is it not changed? The reason is that it fits a culture of lack of accountability. If something goes wrong, the minister can always blame the general director, and then fire him or her, instead of having to take the consequences. This is an almost perfect example of what happens when politicians determine the form and content of a country´s constitution, instead of experts and the people. Ministers in Sweden have all the powers of ministers in other countries, but none of their accountability.
7. Sweden claims to have a dual tradition of strong independence of local government and a highly centralised national government. Compared to the U.K., municipal government is indeed independent in Sweden, since it levies its own taxes (some 30% on regular incomes). The formal independence of the 250 or so Swedish municipalities is also stated in the constitutional charter. However, over 80% of municipal expenditure is a result of national laws, and in the mid 1990s, during Sweden´s economic hardships, the system showed its true countenace, when national government rendered municipal independence a moot point. Political scientists and legal scholars in Sweden have since debated the real meaning of the constitutional regulation of municipal independence in Sweden, and found that it is ”unclear” (statement by the legal council). Unclarity is a typical method of ruling. When matters are unclear they can only be resolved by the greater power, in this case central government. In this way, the Swedish constitution again turns out to be a moot point in real politics, and a tradition of municipal independence, that Swede´s may proudly mention to foreigners, in reality an illusion.
