Maktfördelning, funktionsfördelning och maktfördelning igen

Abstract

Separation of powers, division of functions, and separation of powers again. In the Swedish Instrument of Government from 1809, there was a balance of power between the King and the Parliament. From these two basic spheres of power (constituent powers), power was further divided into five parts (constituted powers). Through the introduction of parliamentarianism in the early 20th century, a redistribution of power took place in practice, but on paper the balance of power remained between King and Parliament. Through the 1974 Instrument of Government, popular sovereignty was introduced, and the head of state would lack political power. The concept of separation of powers was not used, as there was no question of balance between the King and the Parliament. But the legislative, executive and judicial powers remained, albeit under the designation ‘division of functions’ rather than ‘separation of powers’, something that was also accompanied by certain difficulties when the judicial power and the activities of the administrative authorities were to be defined in relation to each other. The statements that there was no separation of powers should be seen in the light of the fact that the balance of power between the King and the Parliament disappeared. Such statements have more to do with the constituent than the constituted powers. Through constitutional amendments implemented in the 2010s, and amendments which are now being prepared, the independence of the judiciary has been strengthened and will probably be strengthened even more. The principle of separation of powers is considered fundamental for rule of law both by the European Court of Human Rights and within EU Law. There is therefore much to suggest that the 1974 Instrument of Government has developed into a constitution now based on the principle of separation of powers. In the article, the constitutional development in Sweden is analysed using the distinction between constituent and constituted powers, following inspiration from the 18th-century French writer Sieyès.