The Norwegian Constitution - Equality and Non-Discrimination
By Elise Thoen
Today, equality and non-discrimination are fundamental principles of the Norwegian society.
However, individuals and minorities have not always enjoyed these rights. When the
Norwegian Constitution was drawn up in 1814, it included several provisions that would not
comply with the values of the Norwegian society today.
In the beginning…
For example: Article 2 set limitations on the freedom of religion. Jews were denied access to
the Kingdom of Norway and this clause was not repealed until 1851. Under the same article,
monastic orders and Jesuits were also denied access to the realm until 1897 and 1956,
respectively. Furthermore, women and workers were not allowed to vote. It was not until
1898 that all adult men were enfranchised and women’s right to vote was established by a
constitutional amendment in 1913.
The Norwegian Constitution was however written in a different time. In 1814 the
Constitution was considered progressive in a European context and at the time it went quite
far in trying to ensure equality to all. The Constitution did for example give all male land
owners a right to vote and in 1814 Norway consisted mainly of farmers, most of whom
owned a small piece of land. Furthermore, even though there were a few landowners who
were quite substantial, the degree of equality between farmers was larger than in many other
European countries. As you can see, Constitution did focus on equality. - The problem in
1814 was however that the notion of equality was understood as equality within a certain
group. The people outside the group were not necessarily entitled to equal rights.
Today:
The Norwegian Constitution is still undergoing constant scrutiny and suggestions of change.
This has been especially true this year when, due to the 200 anniversary, the Constitution has
been subject to a lot of attention.
In Norway we have had a tradition of being very conservative when it comes to
constitutional amendments. Until May this year, the Constitution did for example still not
have any provisions on equality, equal rights or non- discrimination. Non-discrimination is
however a central and integral part of the Norwegian legal system and laws. The Constitution
has for example several provisions on human rights, the most important one being article 110
c from 1994, which stipulates that it is the responsibility of the authorities of the State to
respect and ensure human rights.The Constitution also has provisions on freedom of speech,
freedom from torture, protection of property and so forth. After 1954 the right to work
(article 110) was included in the Constitution, in 1964 freedom of religion was introduced
(article 2), and a provision on the right of the indigenous national minority in Norway – the
Sami people was added in 1988 (article 110 a).
The Constitution of Kosovo was drafted in 2008 and it is a modern piece of legislation where
human rights, equality and non-discrimination are much more central than in the Norwegian
Constitution.
As you know, article 3 of the Constitution of Kosovo ensures equality before the Law.
Furthermore, article 5 gives several minority languages an official status in Kosovo, article 7
stipulates that non- discrimination and equality are among the main values in Kosovo, article
22 gives international human rights agreements and instruments direct applicability in
Kosovo, article 24 prohibits discrimination and chapter three of the Constitution of Kosovo
ensures groups traditionally present in Kosovo (i.e. national minorities) specific rights in
addition to the general human rights and fundamental freedoms applicable for all.
On 14th of May the Norwegian National Assembly passed a proposal to amend the
Norwegian Constitution to include many of the same provisions already present in the
Constitution of Kosovo.
“Ola Nordmann” and National Minorities
The rest of the world tends to view Norwegians as a relatively homogeneous group of people,
often referred to by Norwegians as “Ola Nordmann”. This is however not the full picture.
The Kingdom of Norway is founded on the territory of two people; the Norwegians and the
Samis. The Sami people are at the same time an indigenous people and a national minority
both ethnically and language wise. Most of the Sami people live in the northern part of
Norway, but there are also Sami in other parts of Norway as well as in northern Sweden,
Finland and Russia. The most typical way of life of the Sami people is reindeer farming, and
even though today only a small part of the Sami population has reindeer farming as their
main living, it is an important part of their culture. In addition to the Sami people, Norway
has five groups with the official status as “national minorities”: Jews, Romani, Roma,
Norwegian Finns and Forest Finns. Only the Sami people are however explicitly mentioned
in the Norwegian Constitution.
In 1988 an amendment was passed with the aim to protect the rights of the Sami people. The
amendments in article 110 a) provides a legal and political protection of the Sami language,
culture and society. In addition, the amendment implies a legal, political and moral obligation
for Norwegian authorities to create an environment conducive to the Samis themselves
influencing on the development of the Sami community.
Norway has been greatly criticized by the international community for the politics of
Norwegianization of and discrimination against the Samis. Most of the jurisprudence relating
to rights of Samis deals with land rights, as in order to keep reindeer, large land territories are
necessary. In Norway, the Sami people have had great difficulties when it comes to obtaining
full understanding for their special situation. In recent years however, the jurisprudence
implies a tendency towards giving more weight to the traditional rights of the Sami people. In
addition to land rights, the Sami people have also struggled with gaining the right to
education in their own language.
The challenges faced by the Sami people in Norway are the similar to the ones national
minorities face in Kosovo. The Constitution of Kosovo chapter III on the rights of
communities and their members was included to insure the rights of minorities in Kosovo.
Both the provision on protection of the rights of the Sami people and chapter III in the
Constitution of Kosovo was inspired by the International Covenant on Civil and Political
Rights of 1966 (ICCPR) article 27 which protects minorities, and indigenous peoples, against
discrimination. The provision states that "In those states in which ethnic, religious or
linguistic minorities exist, persons belonging to such minorities, shall not be denied the right,
in community with the other members of their group, to enjoy their own culture, to profess
and practice their own religion, or use their own language".
The Norwegian Constitution has no general provision on the protection of minority rights,
but the ICCPR has been binding for Norway since 1976. Since the inclusion in 1994 of a
constitutional reference to human right “treaties” that the state is obliged to “respect and
ensure” (article 110 c), the general minority rights clause in ICCPR article 27 has had a
constitutional reference. By its inclusion in the Norwegian Human Rights Act in 1999, the
ICCPR is, according to the Article 3 of the Human Rights Act, Lex superior to other national
legislation if in conflict.
At the 200th anniversary of the Norwegian Constitution, we may therefore conclude that
international treaties aiming to protect minority rights in general and the rights of national
minorities in particular have a certain constitutional reference in Norway, though only as
long as these treaties are ratified by Norway and/or incorporated into the Human Rights Act.
These treaties do not however, have the constitutional status and protection they would have
if they were incorporated into or explicitly referred to in the constitution itself.
The proposed amendment to the Norwegian Constitution passed by the National Assembly
on the 14th May 2014 includes a separate chapter on Human Rights and a provision on nondiscrimination. The proposed amendment does however not include any provisions on
protection of minorities’ rights specifically, the way chapter 3 does in the Constitution of
Kosovo.
Gender Equality
As previously mentioned the Norwegian Constitution was considered highly democratic by
international standards in 1814. However, no women were allowed to vote, nor could men
without property. When all adult men in Norway gained the right to vote in 1898, it was a
major step in the country’s democratic evolution. But not until women received the right to
vote in 1913 did Norway become a genuine democracy.
Globally, Norway was a universal suffrage pioneer. It is true that three countries had already
introduced universal suffrage – New Zealand in 1893, Australia in 1902 and Finland in 1906
– but they were not independent states at the time. Norway was the first sovereign state to
extend the vote to all adults. The right to vote gave women a formal foundation on which to
participate in democratic bodies on an equal footing with men.
It did however take almost 100 years.
A proposal on women’s right to vote was first introduced in 1886 and the proposal was
rejected in 1890 with 70 votes against and 44.
At the time of that rejection, a number of MPs held the view that women’s nature posed an
obstacle to political participation. They argued that the two sexes each had their natural
working domains, and that gender equality was therefore not desirable. The majority of the
Norwegian National Assembly’s Constitution Committee voted against women’s suffrage on
grounds that it would damage family life and conflict with women’s natural calling.
Ultimately, many committee members thought that giving women the right to vote would
destroy traditional home life.
This argument was most common in church circles, and the toughest attacks on introducing
voting rights for women came from a Bishop called Heuch who stated: “She can’t do the
work of men, and she won’t do the work of women. What does that make her? It makes her a
deformed monstrosity, a thing of no gender”.
By 1913, the mood had changed. When the issue arrived in the National Assembly, all
political parties had suffrage for women on their agenda. No one spoke out against it in the
debate, and all members voted in favour of the proposal. The women’s struggle to achieve
voting rights therefore finally ended in victory 99 years after Norway had adopted a
Constitution establishing that the country should be ruled by its people.
But - it was not until 1922 that a woman was elected to the National Assembly. In 1981, the
election of Norway’s first female Prime Minister was an equally momentous event. She later
became known worldwide for her 1986 “women’s government”, in which eight of 18
ministers were women. Since then, women have held around 40 % of the Assembly seats and
about half of the Government’s ministerial posts.
In Kosovo, the Constitution ensured the right to vote for all citizens from the start. The
current president in Kosovo, elected in 2011, is a woman and there are two female ministers.
Furthermore, 30 % of the MPs in Kosovo are female as foreseen on the Law on General
Elections. In the Constitution of Kosovo, article seven ensures gender quality in all aspects of
life, and guarantees the provision of female participation in political, economic, social,
cultural and other arenas.
Where are we now, and what challenges do we face?
In Norway the Constitution is 200 years old. The conservative tradition when it comes to
amendments of the Constitution has led to a progressive interpretation of the Constitution to
make it in line with the views of the society. The Constitution should reflect the will of the
people. This is why a substantial amendment to the Norwegian Constitution including a
chapter on Human Rights was recently passed in the National Assembly. Despite the
development since 1814 however we still have issues in Norway when it comes to gender
equality and the protection of national minorities.
In Kosovo the Constitution is only six years old. It was inspired by other European countries
and international law. The Constitution is amongst the more progressive in the world when it
comes to ensuring equality and non-discrimination; the challenges however lie more in the
application of these principles in real life. During my last three years in Kosovo, dealing with
post conflict property restitution, I have seen myself the challenges minorities and women
have when it comes to protection of their property rights. This is not due to the laws, but
rather how they are practiced as well as local customs, access to the courts, legal aid and so
forth. Based on the recent history in Kosovo and the conflict between the different groups in
your society I do not claim that Norway faces the same challenges as Kosovo does when it
comes to issues concerning national minorities.
However, we are not in 1814, and we no longer believe that the concept of equality only
applies to persons within a certain group. Equality should be between all - regardless of
ethnicity, religion, gender and so forth.
You are the practitioners of the principles enshrined in your Constitution of today and
tomorrow. Norway and Kosovo both have challenges, they may not be the same challenges,
but we both have to do our best to practice what we preach to ensure that all individuals are
given the rights that we have decided that we want them to have.