LUND UNIVERSITY
Faculty of Law
Introduction to Swedish law
JUZ N04
Teacher: Uta Bindreiter
Autumn Term 2014
Project group 4
- The Background and Function of the Constitution-
Boom, Annika
Burns, Sophie
Janssen, Marion
Di, Jiang
O´Halloran, Fay
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Table of Contents
I. Its historical background
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1. Instrument of Government
3
2. Freedom of the Press Act
3
3. Fundamental Law on the Freedom of Expression
3
4. Act of Succession
3
II. Fundamental law’s objects
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1. Restrictions on political power, prevent the power from being abusing
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2. Distribute the power reasonably
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3. Entitle or guaranteed the basic right that people should have
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4. Other principles of the form of the government
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III. The Instrument of Government (regeringsformen, RF)
4
IV. Separation of powers
5
V. Comparison
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1. Germany
6
2. Netherlands
6
3. China
7
4. United Kingdom
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I. Its historical background
1. Instrument of Government
The current Instrument of Government was enacted in 1974 and establishes still the constitutional form of the Swedish Government. In 1634 the first Instrument of Government was issued and contained administrative and judicial regulations. Moreover the Riksdag was formalized (Estate Riksdag 1634-1866). An earlier Instrument of Government from 1809 managed
an Act of Balance between the king, the Council and the Parliament by establishing the separation of powers.
2. Freedom of the Press Act
In 1766 the Freedom of the Press Act was issued as one of the first worldwide. It contained
the abolition of censorship and the right of public access to governmental documents. Under
the reign of Gustav III. the Freedom of the Press Act was withdrawn in 1774 but mostly restored by his son Gustav IV in 1809. The current Act was enacted in 1949.
3. Fundamental Law on the Freedom of Expression
Since new media was established in the years after 1949, the fundamental Law in the Freedom of Expression was additionally issued in 1991. It comprises all new media such as radio,
television and the internet.
4. Act of Succession
The current Act of Succession was enacted in 1810 and contains rules concerning the heritage
of the throne. However, over the course of time the content was partly rewritten. The most
remarkable recent development has been the change of agnatic primogeniture in favour of
absolute primogeniture in 1980, which means that instead of the necessity of a male heir the
eldest child, regardless of sex, will become the successor to the throne.
II. Fundamental law’s objects
Fundamental law is enacted by the Parliament, having the highest rank in the hierarchy of
legal sources. In Sweden, the fundament law is consist of four constitutional act: the Instrument of Government (RF), the Act of Succession, the Freedom of the Press Act (TF), the
Fundamental Law on the Freedom of Expression (YGL). The fundamental law’s objects are
mainly present as following characters.
1. Restrictions on political power, prevent the power from being abusing
In the very first sentence of RF, it says that all public power in Sweden proceeds from the
people.
The parliament, which is representative of the people, has the function of scrutinizing the
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government and the public administration. For example, there is an important parliamentary
committee called Standing Committee on the Constitution, which main task is to examine the
ministers’ performance of their duties and deal with the business of government. In addition,
the Member of Parliament has the right to address question to ministers to scrutinize them.
Besides, there is a Swedish innovation called Parliamentary Ombudsman, which main task is
to supervise the public administration, as well as the court.
2. Distribute the power reasonably
The organisation of the courts exists in a way that there is a separation between the judicial
and public administration elements, within Sweden there is a court structure which comprises
of the Supreme Court, the Supreme Administrative Court and finally their inferior courts.
The fundamental laws also formulate the principle that no public authority may determine
how a court shall adjudicate or apply a legal rule in a particular case.
3. Entitle or guaranteed the basic right that people should have
The civil rights are protected by the fundamental laws. It is mainly written in the CH.2 of RF,
the TF (Freedom of the Press Act) and the YGL (Freedom of Expression). Within the fundamental laws, all citizens are equally guaranteed the freedom of expression, freedom of information, freedom of assembly and manifestation, freedom of association, and freedom of worship. At the same time, some freedoms are written by the negative forms, such as all citizens
are protected against coercion to participate in any meeting or manifestation.
4. Other principles of the form of the government
The fundamental law formulates the basic system related to Sweden. Some basic features in
Sweden were written into RF. Such as the king or queen shall be the head of state; Sweden is
a member of European Union.
Besides, the fundamental law also mention some general aims of public activity. such as the
promotion of ideals of democracy as guidelines in all sectors of society.
III. The Instrument of Government (regeringsformen, RF)
The Swedish constitution is a construction of the combination of several fundamental laws.
The first of those fundamental laws is the Instrument of Government. The IOG was adopted
by the parliament (Riksdag) on June 6, 1809 and last amended in 1974. This fundamental law
sets out the basic principles of Swedish democracy by describing how the country is to be
governed, by specifying the democratic rights of the Swedish people and by telling about the
way the public power is to be divided.
The Instrument of Government contains fifteen chapters. This essay will not go into detail on
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all the chapters, but describes the, in our view, most important articles.
Chapter 1 sets out the basic principles of the form of government. The first article says that all
public power in Sweden proceeds from the people and that democracy is founded on free
formation of opinion. This article speaks about political power though, so it doesn’t entail for
example private or economic power. Article 2 sets out various social rights, but these are
only goals and not revocable by the people.
Chapter 3 is about the Riksdag. The Riksdag is appointed by means of free, secret and direct
elections (art. 1). It consists of a single chamber with 349 members (art. 2) and ordinary elections are held every fourth year (art. 3). The head of state has no political power, which is
stated in Chapter 5. Chapter 6 is about the government. The government consists of the Prime
Minister and other ministers (art. 1).
Chapter 8 on Acts of law and other provisions states in art. 20 that there is a Council on legislation, which pronounces an opinion on draft legislation. This means that Sweden has to Constitutional Court.
IV. Separation of powers
The separation of powers is a common feature of many constitutions, introduced famously by
Montesquieu. It essentially allows for a division between the authoritative bodies, by successfully presenting a parliamentary system where the executives and legislature are not unified,
this is done with the expectation that there are little conflicts between the separate bodies.
The introduction of the Instrument of Government 1809 created a balance between the King,
Parliament and Council, prior to this the king retained the power to make, enforce and judge
the laws. The instrument separated the traditional three powers; the legislative, executive and
judicial powers. Although according to this instrument there are five powers, with the additional powers of taxation and control.
There was a separation between the executive (the king) and the legislative (the Riksdag of
the Estates), the legislative power was to be divided between the executive and parliament.
Until 1974 the instrument explained that the king governed the realm, it then changed and is
currently the case that instead, the people govern the realm. In 1809 the king was able to issue
ordnances, whereas today they must steam from the government. The involvement of the king
today is limited to the retaining of the right to be informed by the council, as he no longer
retains executive power.
The judicial branch, which has responsibilities in interpreting the constitution, lies with independent courts.
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The power of control rested with parliament, within two institutions. Firstly, there is a permanent committee on the constitution, known as the Konstitution Utskottet. And secondly, there
is the parliamentary ombudsman (formally the Justitionet Ombudsman). The power of control
is important for the purpose of acting as tool for the ordinary citizen to review the executive
power, ensuring that it is exercised within the law. The ombudsman has the power to control
all of the administrative offices and then report to parliament, they are then able to give advice, which is usually followed.
The power to tax citizens lies with the traditional parliament, which doesn’t include the king.
V. Comparison
1. Germany
In Germany the so-called basic law forms the constitution since 1949. Its structure differs
from the structure of the Swedish constitution: Instead of the subdivision into four constitutional acts, the German basic law is subdivided into eleven chapters. The nineteen fundamental rights that exist in the German constitution form the first and most important chapter. The
separation of power is determinate as an unchangeable article in the basic law and consists of
the separation between legislative, executive and judicial power.
Although the parliamentary ombudsman does not exist in Germany in the form it exist in
Sweden, there is a similar ombudsman within some of the state constitutions.
2. Netherlands
The present Dutch constitution is generally seen as directly derived from the first one issued
in 1815, constituting a constitutional monarchy. This system changed into a parliamentary
democracy by the revision of 1848. The last major revision was in 1983, adding new civil
rights
and
a
number
of
other
changes
e.g.
abolishing
the
death
penalty.
The constitution consists of eight chapters, starting with the fundamental rights. There is no
normative hierarchy indicated by the constitution, so all basic rights are principally equal in
value and importance. Some rights are absolute; most can be limited by parliament. This
chapter also embodies the freedom of expression and the freedom of the press. Some other
chapters that can be found in the constitution are the ones about the government (ch. 2), legislation and administration (ch. 5) and about revision of the constitution (ch. 8).
When it comes to the separation of powers, the Netherlands does not really have a traditional
division. According to the constitution the States General – the first and second chamber –
and the government – the King and ministers – share the legislative power. The executive
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power is reserved for the government. The judicial power is divided into two separate systems
of court, namely the ‘Hoge Raad’ for civil and criminal law and the ‘Raad van State’ for administrative
law.
3. China
Chinese constitution is the fundamental law of China. There are 4 constitutions in the history
of P.R.China. They were enacted in 1954, 1975,1978 and 1982,following 4 amendments. The
constitution established the fundamental principle of Socialist in China, guaranteed the basic
rights and obligations, formulate the rule of the public organization, determine the basic features of China. For the structure, it is different from the Swedish constitution. Chinese constitution is made of a constitution code. For the separation of power, the National People's Congress is responsible for the legislation. The State Council, that is, the Central People's Government, it is the highest organ of state administration. The people's courts of the People's
Republic of China are the judicial organs of the state. For the Structure of the State it is written in the Chapter 3 of the constitution. Ranging from the National People's Congress, The
President of the People's Republic of China, The State Council, The Central Military Commission, The Organs of Self-Government of Ethnic Autonomous Areas, the People's Courts
and the People's Procuratorates.
4. United Kingdom
The most obvious difference between the UK and the Swedish Constitution is that the UK has
an uncodified or unwritten constitution; instead it can be found in written documents such as
acts, judgments, works of authorities and treaties. However there is no single document and
can also be found in constitutional conventions, these are in formal procedures followed by
institutes of state, for example, the monarch will always give ascent to a bill passed by both
houses of parliament. The unwritten constitution means that unlike Swedish, the UK’s constitution can be characterized as flexible but they similarly have a constitutional monarchy and
are a unitary state. Following the revolution in the 17th century, the UK constitution has been
based around the idea of parliamentary sovereignty: parliament has the power to make or unmake any law but they cannot bind future parliaments or be bound. The UK previously Instrument of Government but after the restoration of the monarch in 1659. The UK has a separation between the judicial, executive and legislative powers however without a written constitution, much of this is just convention, for example, law Lords refrained from legislative
procedures in the House of Lords even though they were not required to.
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