Debate: Four lost years for liberal democracy

Charlie Taylor


Stop talking about strengthening liberal democracy and start reforming, writes Frida Jansson and Adam Danieli at TimbroPublished: June 23, 2022, 19:30 The January agreement promised a strengthened liberal democracy. But the last four years have been lost years. Point by point, Sweden is underperforming according to the European Court of Justice and the UN. Sweden needs to implement a constitutional reform, write the lawyers Frida Jansson and Adam Danieli, Timbro. The January agreement was motivated by defending liberal democracy. The purpose was to preserve and develop Sweden’s rule of law in order to insure us against a development such as in countries such as Poland and Hungary where the freedoms of the courts have been circumvented. But the reforms have failed and at the same time Sweden has underperformed in the three main areas that characterize a state governed by the rule of law: division of power, protection of individuals’ rights and access to justice. The core of liberal democracy is that political power is exercised under the law Today, liberal democracy is threatened in several parts of Europe. In countries such as Hungary and Poland, power-sharing institutions are being dismantled and the rights of the individual are becoming increasingly weak. The debate often warns of Poland’s development, but Sweden’s situation is completely different. Sweden has never had a division of power from the beginning. It is clear that something is seriously wrong with how the protection of the individual’s rights works in Sweden. Both the UN and the Council of Europe’s torture committees have criticized Sweden for the treatment of detainees for over a decade. Detention times are so long and the isolation so extensive that it risks causing psychological harm. The UN has also criticized Sweden for not introducing a general ban on discrimination according to its commitments from 1971. In Sweden, the division of power is weak, the constitutional protection of rights is incomplete and the opportunities to actually get their rights against the authorities weak. Although the tone has been high, the last four years have been a failure to address the weaknesses. In the report A more liberal democracy, we present 15 concrete reforms that together would constitute a comprehensive constitutional reform. By strengthening the protection of rights, the sharing of power and the individual’s opportunities to assert their rights, we can have a stronger liberal democracy. We propose, among other things: Introduce a new system for court costs. Legal costs are the costs that individuals incur in legal aid in the appeal of an authority decision. Today’s order means that the individual must bear his own costs even when winning against the state. It violates the right to a fair trial in Article 6 of the European Convention. The state needs to take financial responsibility so that more people can afford to stand up for their rights. We propose that individuals who have had reason to have their case tried or win against the state should be entitled to compensation. Introduce clear guarantees of legal certainty in the form of government. Today, it can take a long time to get decisions from authorities and courts in Sweden. Review of decisions on beach protection exemptions, citizenship and certain criminal cases can take years, even though they are not very complicated. Sweden is the country in the Nordic region that has been convicted in the European Court of Justice the second most times when it comes to the court that a trial should take place in a reasonable time. In some cases, the decisions are not even possible to appeal. We propose a general right to judicial review and that all authorities not just courts, as today should be covered by the requirement to have a trial in a reasonable time. Introduce a general, constitutional prohibition of discrimination. The protection against discrimination in the Swedish constitution is toothless. Although Sweden undertook in 1971 to introduce certain measures against discrimination through the UN IPCCR Convention, the opportunities for the public sector to discriminate on the basis of gender or political opinion are still great in Sweden. This is most easily remedied by introducing a general right to equal treatment in the form of government. Introducing constitutional protection for privacy and against inhuman or degrading treatment. Unlike most other western countries, the Swedish constitution lacks a general ban on degrading or inhuman treatment. In 2018, Sweden was sentenced in the European Court of Justice for violating the European Convention’s prohibition of torture and the ban on inhuman or degrading treatment. Sweden also lacks general protection against public invasions of privacy. As recently as last year, Sweden was sentenced by the European Court of Justice to the highest court for not respecting privacy. Such rights are hygiene factors for a liberal democracy, and must be introduced in the Swedish constitution. Strengthen property protection. The protection of property has historically been discussed in Sweden. The result of constant compromises has led to constitutional protection that is scattered and unpredictable, which most recently revealed itself to forest owners with the species protection investigation. We therefore propose that the right to compensation that follows from the state expropriating property or substantially restricting the use of private property be clarified. Abolish the corporate courts. The starting point in a liberal state governed by the rule of law is that disputes are settled in independent courts. In Sweden, however, there are exceptions to this principle, through the corporate courts. In the Labor Court and the rent boards, so-called interest members, representatives of interest groups in the labor and housing market, judge. The Labor Court consists of business organizations, trade unions and Sweden’s municipalities and regions. Anyone who is not a member of any of these organizations risks facing a court that benefits the parties at the expense of the right to a fair trial. This is an ancient system that should be abolished in favor of independent judicial review. Many believe that Sweden is a strong liberal democracy. But the individual is powerless in Sweden through ambiguities about the meaning of rights, long processing times and an expensive court process where the costs need to be borne privately. All political parties that want to make Sweden a country with better protection for individuals against state power have an obligation to not only talk about liberal democracy, but also propose reforms to make it a reality.Frida Janssonlawyer and report writer, TimbroAdam Danielilawyer and report writer, Timbro


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