sou · GWB3125 · 2009-01-01 00:00:00 — However, a party that has received at least twelve per cent of the votes in a constituency participates in the distribution of the fixed constituency seats in that constituency. Each voter can cast a vote for a preferred candidate. The purpose of including this right to vote for a preferred candidate in the voting system is to give voters more scope for influencing who should represent them, and to strengthen contacts between voters and their representatives. To create a balance between the parties and voters influence on the candidates to be elected there is a quota on the right to preferential voting. In elections to the Riksdag the votes for preferred candidates must correspond to at least eight per cent of the party's votes in the constituency. For other elections at least five per cent is required. We propose that the quota for preferential voting in elections to the Riksdag be reduced to five per cent. A uniform quota level for preferential voting will thereby apply to all elections. In connection with this, we have also strengthened the information requirement to voters concerning the implications of voting for individual candidates. Under the present system elections to the Riksdag are held on the third Sunday in . Current rules mean that the framework limits the abilities of a new Government to make its mark on its first budget proposal. As a step towards creating better conditions in this field we propose that the election date be moved from the third to the second Sunday in . Certain changes in the election system are also proposed in the area of local government. Our proposals include introducing the possibility for municipal councils to decide on extraordinary elections between ordinary elections. Extraordinary elections shall be held if at least two thirds of the members present vote in favour. We are also agreed on proposing that the question of proportionality in local elections as well as the question of public election preparation should be considered further by a special inquiry. Referendums and popular initiatives The possibility of holding advisory national referendums is a complement to representative democracy. These referendums can contribute to increasing citizens political commitment and to vitalising democracy. They also have an effect in terms of popular education. Under current rules advisory national referendums can be arranged after decision by the Riksdag. These rules provide good opportunities to hold advisory national referendums. In accordance with the Constitution it is also possible to hold referendums on dormant constitutional proposals. We propose a minor change in these provisions in order to achieve a more reasonable and fair system, without at the same time making it more difficult to amend the Constitution. There are provisions in local government legislation that make it possible for municipalities and county councils to arrange local referendums. These referendums are decided by the assembly. It is also possible for citizens to bring about a local referendum through a popular initiative. The popular initiative of today means that a motion may be put to the assembly to hold a referendum on a given question by at least five per cent of those entitled to vote in the municipality or county council. It is then the assembly that decides if a referendum is to be held. In our opinion, current provisions on municipal popular initiatives do not function satisfactorily. They have not contributed to stronger local democracy in the way intended when they were introduced. We therefore propose that the provisions concerning popular initiatives be amended. According to our proposal, a municipal advisory referendum shall be held on a matter if at least ten per cent of those entitled to vote so request. In other words, the principal rule shall be that an assembly may not refuse such a request. To prevent referendums on matters without any foundation in the assembly it must, however, be possible for the assembly to refuse a popular initiative. One condition for this is that two thirds of the members are against the initiative. The Riksdag and the Government In a parliamentary system the parliament shall have confidence in the Government or at least tolerate it. The Swedish parliamentary system is based on negative parliamentarism, which means that the Government can be appointed under the rules of the Constitution and continue to sit thereafter as long as a majority in the Riksdag do not express that they have no confidence in the Government. The second basic form of parliamentarism, positive parliamentarism, requires instead that the Government has the express support of a Riksdag majority. The application of the provisions shows in our opinion that the current arrangement functions well in all essentials. However, we propose the introduction of a provision stipulating that after an election the Riksdag shall vote on the question of support for the Prime Minister. This means that a vote shall be held in the Riksdag after each election to consider the question of the sitting Governments parliamentary base in the newly elected Riksdag. Under the provision the Government shall be able to remain in office as long as a majority of the members of the Riksdag, i.e. at least 175, does not vote against the Government. The vote shall only be held if the Prime Minister has not previously been dismissed as a result of a declaration of no confidence or has resigned at his own request. Under the Constitution, the Riksdag examines the government and administration of the realm. That the Government exercises its power under responsibility to the Riksdag is also apparent from the rules in Chapter 12 of the Constitution on parliamentary control. According to these provisions, this power of control consists of the supervision undertaken by the parliamentary , the motions and interpellations of members of the Riksdag, the supervision exercised by the Parliamentary Ombudsmen and the Audit Office and the possibility of declarations of no confidence. With regard to the issue of the power of control, we propose certain clarifications. This primarily applies to the examinations undertaken by the parliamentary . examines ministers performance of their official duties and the handling of Government business. Under todays regulations, the Committee has the right to receive records of decisions on Government matters and the documents involved in these matters for the purposes of these examinations. In our proposal, explicit right to documents will be extended. Under this proposal, in addition to records of Government matters and the other documents involved in these matters, will also receive all Government documents that the Committee finds necessary for its examination. The purpose of this addition is that the right of access to documents needs to correspond more closely with the actual area of the Committees examination. A provision will also be incorporated into the Constitution to the effect that every is to follow up Riksdag decisions within the subject area of that Committee. In this way, the Riksdags responsibility for examination through follow up and evaluation of previous Riksdag decisions will be further emphasised. By virtue of their functions in the administration of , courts are important bodies in our society. The role of the courts comprises considerably more than resolving disputes and examining criminal cases. The courts are to uphold the rule of law and the rights of the individual citizen through their task of ensuring that democratically determined enactments are applied correctly. The courts are also tasked with the creation of case law, through the role of the highest courts as authorities in which precedent is established. membership of the EU and the obligations resulting from Convention for the Protection of Human Rights and Fundamental Freedoms and other agreements have further clarified the role of the courts in society and their importance in guaranteeing citizens rights. We propose the incorporation of a provision that entails each court deciding itself how its tasks be divided within the court. The right of the Parliamentary Ombudsman and the Chancellor of to attend the deliberations of courts and administrative agencies will also be abolished. Issues concerning appointments of permanent judges and the legal status of judges in various respects are also important for the independence of the courts and of judges. We consider that the procedure when appointing permanent judges should be designed in such a that the independence of the courts and judges cannot be called into question. The appointment procedure must also guarantee broad recruitment of a high quality. We therefore propose that the Constitution stipulates that the grounds for the appointment procedure with regard to permanent judges be regulated by law. We also propose an act on the appointment of permanent judges. Under the system that we propose, the Government will continue to appoint permanent judges, but the present procedure in which higher posts as judges are directly appointed will be abolished. This means that all posts as judges will be announced as vacant. Matters relating to the appointment of permanent judges will be prepared by a proposals board, which is to consist of six judges, a member of the and two representatives of the general public. The regulations concerning bringing charges against of the Supreme Court for offences in the exercise of their duties should also be amended. Prosecutions of this type, under our proposal, are to be examined by the Supreme Administrative Court instead of the Supreme Court, as is the case at present. In this way, the situation is avoided in which one of the highest courts examines cases involving one of its own members. The same procedure shall also apply, for example, to the issue of whether a of the Supreme Court is to be relieved of his post. We also propose certain amendments with regard to issues related to summary dismissal and disciplinary liability for other permanent judges. The provisions in the Constitution on the administration of and general administration The provisions of the current Constitution concerning the administration of and the provisions concerning general administration are currently contained in a joint Chapter. There are also common provisions concerning all public activities. We propose that provisions on the administration of and general administration be divided into two different chapters. The new chapter on the administration of is to contain the provisions currently found in Chapter 11 that concern the courts and judges. The new chapter on general administration is to contain the provisions currently found in Chapter 11 that concern general administration. Furthermore, the design of the provisions on the fundamental state administrative organisation under the Government and on the transfer of administrative tasks is simplified. Judicial review in the future Judicial review is based on the view that regulations, i.e., binding general rules of law, are part of a hierarchical system where there are different levels. For , this refers to fundamental laws, ordinary acts of law, ordinances (regulations issued by the Government) and agency and municipal regulations. In judicial review the point is to examine a regulation at a lower level in relation to a regulation at a higher level, with the regulation at the higher level taking precedence if there is a conflict. When judicial review is discussed, the key point is often the relationship between a law at constitutional level and an ordinary law. Judicial review is undertaken by through its prior scrutiny of draft acts of law conducted during the legislative process. Judicial review is also undertaken by courts and other public bodies in their activities. Here it is a question of examining acts of law and other regulations in specific cases. In the case of acts of law, therefore, the Swedish judicial review system thus contains elements both of prior scrutiny and subsequent review. Our point of departure has been that the judicial review system shall continue to contain both prior scrutiny and a possibility of review at a later stage. When it comes to prior scrutiny, some amendments are being made to the Constitution in order to further emphasise the importance of review. The current regulation stipulates that a statement from should be obtained in certain specific cases. We propose instead that such a statement must be obtained. In this way, review is made compulsory in the matters of legislation subject to review. We also propose that the criterion of importance be removed. The Government or a will thus no longer be able to desist from obtaining an opinion from on the grounds that an act of law is not considered important for individuals or from a public point of view. We also propose that the legal skills of the secretariat of is reinforced. With regard to review at a later stage, the current regulations mean that a court or other public body is only to refrain from applying an act or ordinance if the error is manifest. We have concluded that this requirement should be abolished. Instead a note should be introduced in the text of the law recalling that in the event of judicial review, particular account should be taken of popular sovereignty and conformity to law, with its principle of a hierarchy of norms. The review of acts of law and other regulations dealt with in the provision is limited to situations in which the issue of, for example, the compatibility of an act with the Constitution arises in a specific case of application which is to be determined by, for example, a court. As is the case at present, the review is to be performed by all courts and other public bodies in which issues relating to conflicts of norms arise in applying the law. Protection of fundamental rights and freedoms Swedish fundamental rights and freedoms are primarily contained in Chapter 2 of the Constitution. and equal suffrage is expressed in Chapter 1 of the Constitution. Through the Freedom of the Press Act and the Fundamental on Freedom of Expression certain aspects of freedom of expression and information receive stronger and broader constitutional protection. An important component of Swedish protection of freedoms and rights is determined by the provisions of Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention was incorporated into Swedish law in 1995 and has also been given special constitutional standing by the prohibition in Chapter 2 Article 23 of the Constitution that prohibits legislation that contravenes the Convention. The report proposes certain changes to the provisions on the fundamental protection of rights and freedoms in the Constitution. Two proposals relate to protection from discrimination. Under the current wording of the Constitution no act of law or other provision may imply the unfavourable treatment of a citizen because he or she belongs to a minority group of a particular race, colour or ethnic origin. We propose that the concept of race be removed from the Constitution so as to better express protection from discrimination. Instead, the grounds of discrimination should be given as ethnic origin, skin colour or other similar circumstances. This new wording does not imply any change in substance to the protection from discrimination. We also propose that protection from discrimination is expanded to include a prohibition against regulations that may imply unfavourable treatment of a citizen because of his or her sexual orientation. Furthermore, we propose the introduction of a provision that would require court trials to be fair and take place within a reasonable period of time. The existing Swedish legal order does not contain any such provision at the constitutional level. The superior provision in this area is Article 6 of the Convention. The purpose is to introduce a provision into the constitution that to some extent corresponds to Article 6. In one respect the proposed provision goes further than the Convention. The protection afforded by the Convention only extends to proceedings concerning civil rights and obligations or a criminal charge. such limitation will be introduced in the provision in the Constitution. We also propose that regulations pertaining to the protection of property are changed so that the main principle of full compensation for expropriation and other such disposition is made clearer. The provision must therefore specify that full compensation for losses will be payable in these cases. We also propose an amendment to the provision prescribing that, with regard to the right to compensation for restrictions on the right of disposition regarding real estate for health protection, environmental protection or security reasons, the provisions of the law apply. The right to compensation for such restrictions on the right of disposition should be dealt with by a special inquiry. The report outlines the basis for such an inquiry. Moreover, we propose a provision on the protection of the freedom of research. We also propose that the constitution make clear that public authorities shall also work to ensure that the rights of children are safeguarded. Such a step is in line with obligations under the UN Convention on the Rights of the Child. Finally, we present a proposal concerning the position of the . The occupy a special position among the national minorities, especially since they are also recognised as an indigenous people. This position, in our view, warrants that special mention be made of the in the introductory chapter of the Constitution. Following this, the existing regulations should be amended to state that the opportunities for ethnic, linguistic and religious minorities to retain and develop their own cultural and social life must be promoted, instead of should be promoted, as is the case today. In this context, the proposals for stronger protection of personal integrity presented by in its report (SOU 2008:3) have also been highlighted. In our view, protection in line with the proposals of should be introduced. Constitutional regulation of international cooperation plays an role in extensive international cooperation that has a major impact on Swedish society. Our membership of the EU is our most significant area of cooperation. In our opinion, the Constitution should include clear reference for its readers of our membership of the EU. membership of the EU should therefore be mentioned in the introductory chapter on the basic principles of the form of government. Neither does the Constitution contain any general provisions concerning our other areas of international cooperation with other countries and within the framework of various international organisations. In light of the importance of such cooperation for Swedish society, this stands out as a shortcoming of the Constitution. In our view, it should be explicitly stated that takes part in international cooperation. In such a provision, there is reason to draw particular attention to cooperation that takes place within the framework of the UN and . We also propose certain changes to the provisions concerning transfer of decision-making authority in relation to the EU. The purpose is to ensure that a safe majority of the members of the Riksdag supports the decision. Under the Swedish constitution, democracy is achieved through a number of means including local self-government. Local self- government occupies a central position in and is an important part of our democratic system. The provisions in the introductory chapter of the Constitution indicate the special position that municipalities already occupy. We believe that there is reason to further emphasise the important role that municipalities play in Swedish society. We propose that this be done by adding to the Constitution a new specific chapter on municipalities. This chapter would regulate the conditions concerning municipalities that can be regarded as specific to the local government sector. We also propose certain changes to the provisions of the Constitution regulating municipalities. In this context, we can refer in particular to a clearer emphasis on local self-government in the Constitution through, for example, regulations stating explicitly that the principle applies to all local government activities. Furthermore, a provision should be introduced that requires local government interests to be taken into consideration in the legislation. The provision specifies that a restriction in local self- government should never be allowed to go beyond what is necessary with regard to the purpose behind it. At the same time, review by is extended to include legislation that can be of importance to local self-government. However, we do not consider that there is reason to subject the Riksdags assessment of these issues to judicial review at a later stage. Furthermore, the Constitution is also to include a provision that makes clear that tax equalisation between municipalities may occur. Regulatory power refers to the right to take decisions on rules of law, i.e. rules that are binding on individuals and authorities and that are generally applicable. These rules are referred to as provisions in the Constitution. Regulatory power is primarily regulated under Chapter 8 of the Constitution, but provisions on regulatory power are also found in other chapters of the Constitution and in the Freedom of the Press Act and the Fundamental on Freedom of Expression. Our review has resulted in a number of proposals that aim at eliminating application problems and creating regulations with less detail and increased clarity. Further, to a certain extent the provisions have been adjusted to current practice. Besides amendments that are warranted for these reasons, some further adjustments of the provisions are proposed. A new introductory provision is proposed in Chapter 8 to get the Chapter off to a better start and to allow simplification of the Chapters following provisions. The provisions that define the sphere of primary legislation are combined in a single provision. The main provision on the delegation of regulatory power to the Government will be amended so that it specifies areas in which delegation is not possible rather than list the areas in which delegation is allowed, as is the case at present. A provision will be introduced that allows the Riksdag to authorise municipalities to issue regulations on taxes that aim at regulating municipal traffic conditions. The provision aims at removing the present constitutional obstruction against such an arrangement when it comes to parking fees and congestion charges. Financial power refers to the right to take decisions on revenue to the state and to control the states assets, primarily through decisions on expenditures. Revenue is primarily comprised of taxes and fees, but also of income of a civil law character, such as dividends from shares owned by the state. The current regulations describe in general terms the powers of the Riksdag and the Government with regard to the budget. The regulations are supplemented by the provisions of the Riksdag Act and the State Budget Act (1996:1059). We consider that the basis of the provisions on financial power in the constitution should continue to be to regulate, in general terms, the powers of the Riksdag and the Government with regard to the budget. Only provisions of such importance and that have achieved such political acceptance that it cannot be expected that they will be subject to amendment in the foreseeable future should be contained in the Constitution. Within this framework, the provisions should reflect the actual budget process as clearly as possible.