Iris Nguyên-Duy, Dept. Of Public and International Law

1. Iris Nguyên-Duy, Dept. Of Public and International Law Introduction to the Norwegian Legal System Lecture 5 Correction of the mock exam

2. Examples of previous exam questions • Last year’s exam was on the “Interpretation of statutes in the Norwegian legal system”. • “The Role of the court in the 19th century Norwegian legal system”. • “Outline briefly the main principles concerning judicial review of legislation in Norway” • “Outline the historical background of the Norwegian Constitution of 1814 and its development during the 19th century.”

3. Discuss and compare the alternative procedures in Article 93 and Article 112 of the Constitution of Norway for achieving membership of the European Union. Examples You could, f.ex., present each article, its advantages and drawbacks and, only then, draw up a conclusion • I. Article 93 • II. Article 112 • III. Article 93 and 112 – Which is best suited for allowing Norway to achieve membership of the European Union. 

4. Or, a little more complex: • I. The advantages of article 93 and 112 • II. The drawbacks of article 93 and 112 • III. The choice between article 93 and 112 You could also systematically compare each article with one another, showing the differences between each article and pointing out, as a conclusion, which one is best for our purpose: get Norway into the European Union. • I. The formal differences between the two procedures • II. The material limits resulting from article 93 and 112 • III. Choice of the “best solution” for Norway’s membership to the European Union.

5. Article 93 “In order to safeguard international peace and security or to promote the international rule of law and cooperation, the Storting may, by a three-fourthsmajority, consent that an international organisation to which Norway belongs or will belong shall have the right, within specified fields, to exercise powers which in accordance with this Constitution are normally vested in the authorities of the State, although not the power to alter this Constitution. For the Storting to grant such consent, at least two thirds of its Members shall be present, as required for proceedings for amending the Constitution. The provisions of this Article do not apply in cases of membership in an international organisation whose decisions only have application for Norway exclusively under international law.”

6. Article 112 “If experience shows that any part of this Constitution of the Kingdom of Norway ought to be amended, the proposal to this effect shall be submitted to the first, second or third Storting after a new General Election and be publicly announced in print. But it shall be left to the first, second or third Storting after the following General Election to decide whether or not the proposed amendment shall be adopted. Such amendment must never, however, contradict the principles embodied in this Constitution, but solely relate to modifications of particular provisions which do not alter the spirit of the Constitution, and such amendment requires that two thirds of the Storting agree thereto. An amendment to the Constitution adopted in the manner aforesaid shall be signed by the President and the Secretary of the Storting, and shall be sent to the King for public announcement in print as an applicable provision of the Constitution of the Kingdom of Norway.”

7. FORMAL OR PROCEDURAL RULES • It is the “King” that has primary competence according to article 93 of the Constitution. The Storting only consents to what will be decided by the King. • An important majority is needed (two thirds of the Storting must be present and a three fourth majority must be obtained) MATERIAL RULES/LIMITS • Article 93 only covers cooperation of a certain type: cooperation for the safeguard of international peace and security and the promotion of the international rule of law or cooperation between nations. • The organization of the cooperation must be such as all member States are on an equal footing, with proportional influence. • The transfer of authority must occur within an “objectively defined field”. The field must be clearly stated and specified (administrative, legislative and judicial authority may be transferred). No power to alter/amend the Constitution can be transferred. All of this is to make sure that the constitutionally mandatory parliamentary consent covers all important parts of the powers to be vested • International cooperation cannot come in conflict with article 1 of the Constitution. • The courts can try the constitutionality of the decision adopted according to article 93 of the Constitution.  • What matters most, in a way, is the extent of the powers transferred.

8. FORMAL OR PROCEDURAL RULES (art. 112) It is a two-step procedure. • Even if the right of initiative also belongs to the government (regjeringen ved en statsråd), the constitutional proposals are normally presented by individual members of Parliament. The proposed constitutional amendments must first be submitted to one of the first three sessions of the Storting before a general election (= one year before the nexte general election), and it must be publicly announced in print. • The discussion of the proposed amendment is postponed to the first, second or third parliament in the next period. Thus there will always be an election between the proposals and decisions, so that voters have time and opportunity to express their views. In practice, constitutional matters have not played an outstanding role in election campaigns. But the time factor (a revision can take between one to seven years...) and the fact that two different Parliaments will be involved in the amendment of the Constitution over many years offers some interesting legal guaranties, even though the Constitution is not so rigid. • According to article 73 of the Constitution, a qualified majority of two-thirds is required to adopt a constitutional proposal, and at least two-thirds of the representatives must meet and vote on the constitutional questions. Since there are a total of 169 MPs, it means that at least 113 MPs have to be present when there is a vote on a constitutional amendment.

9. MATERIAL RULES/LIMITS • The compulsory respect for the principles and the spirit of the Constitution can be an obstacle. • Under the expression “spirit and principles of the Constitution”, we can have a discussion about Norway’s sovereignty and article 1 of the Constitution according to which Norway is a “free, independent, indivisible and inalienable Realm”. • We can also discuss the existence (or not) of supraconstitutional limitations. But the material limits in article 112 have been discussed and it can’t be concluded that they set an absolute limit to a Norwegian membership to the EU (today’s context etc.). • § 1 read in conjunction with § 112 means that Norway can not be part of international organizations that will have an unlimited supranational authority (because Norway would no longer be an independent country). It is not the case here... at the moment...

10. COMPARISON – Some elements of comparison If Norway were to adhere to the EU, article 93 could and would probably be used. However, many oppose this view by arguing that the European Union, especially because of its dynamic nature, goes beyond the material limit of article 93 of “specified fields” (“et saglig begrænset Omraade”) – something which is already difficult to grasp per se. THE PROS OF ARTICLE 112 • The formal conditions are not a problem: a less greater qualified majority is required (two thirds). • And the problems inherent to the (material) criterion “objectively defined fields” as established by article 93 may be overcome by conferring parliamentary consent to Norwegian membership in the EU through formal amendment of the Constitution by virtue of article 112. • The use of article 112 would also probably secure a calmer, quieter political atmosphere around the membership.

11. THE CONS OF ARTICLE 112 • According to the wording of article 112, the road is not totally “open”: the principles and the spirit of the Constitution can be an obstacle, even if one has to distinguish between the 1814 and the present-day’s principles and spirit of the Constitution. There are limits to what Parliament, even as a derived constituent assembly, can do. Here the notion of supra-constitutionality comes to mind. It is difficult to deny that the principle of national sovereignty is a fundamental part of the spirit of the Constitution. There have been lots of doctrinal debates on the subject. However, many believe that article 1 does not constitute an absolute limit to the membership to EU. • And let’s not forget that a long period of time (from 1 to 7 years!) will elapse between the successful negociation of an accession to an international organization and the implementation of such an accession. There are parliamentary elections in the middle of the process.

12. Give an outline of the distinction between “constitutional rights” and “declarative statements” in the text of the Constitution of Norway and discuss advantages and disadvantages of the two models, using articles 110 and 110 a of the Constitution as the main examples. Tentative definition: • Constitutional right: Liberty or right granted under a national Constitution; A liberty or right whose protection from governmental interference is guaranteed by a constitution. • Declarative statement or declaration of principle: a general declaration of policy on which there is political unity across party lines, expressing political and moral obligations. You can refer to them in a political speech, you cannot rely on them for a legal claim or law suit.  Main issue: to assess what kind of constitutional protection constitutional rights and declarative statements benefit from.

13. In order to do that, you need first to understand what distinguishes both concepts. I think that we have to study: • Their formal formulation in the Constitution • Their content • The way they are enforced by the State authorities • Their “value” / legal status and, only then, the way they are protected (+ which court or organ is in charge of this task).

14. a. The differences in the formulation of the constitutional provisionsInstead of writing a provision aiming at affirming explicitly rights, the choice is made, instead, of laying down duties for the authorities of the State. It “is a matter of a more generally framed statement of principle and not the establishment of specific rights in the Constitution”. In the commentary of article 110, it is explained that “it is difficult to formulate the benefits to which the individual is entitled according to the extended conception of human rights” and that the provisions “relating to the new human rights have therefore not taken the form of rights that the invidual can claim with the aid of the courts, but rather the form of injunctions to the State authorities”.Ex: “It is the responsibility of the authorities of the State to create conditions enabling every person capable of work to earn a living by his work.”; “It is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life”.

15. b. The differences in their contentA constitutional right is clearly formulated in the Constitution and usually establishes and/or protects what we call “human rights”.A few examples: articles 96 (punishment without due process of law), 97 (ban on retroactive legislation), 100 (freedom of speech and freedom of the press), 105 (right of ownership) of the Constitution are constitutional provisions on human rights. A declarative statement insists on the duties or obligations of the State authorities, but that do not establish a “right” in the proper sense of the word. More exactly, they impose obligations on the public authorities, but without at the same time giving “rights” to a certain group of the population or to the whole population. One example is article 112 of the Constitution that binds Parliament: Parliament cannot change the “spirit” or “ principles” of the Constitution when revising it. He is bound by them. At the same time, nothing prevents it from doing it: it can decide itself whether or when the limits have been transgressed. Other examples: article 110, article 110 a, etc.

16. c. The way constitutional rights and declarative statements are enforced in NorwayWith a declarative statement, detailed implementation is left to the central State authorities themselves. Since the wording of the obligation is in general and discretionary terms, this kind of provisions leaves a considerable scope for the discretion of the political authorities. And they can / have to continually weight the provision at stake in relation with other factors, such as the economic situation, the political directions the government wishes to take.The State authorities just have to ensure that the measures they take remain within the rather loose framework of the constitutional rules. They have a reasonable freedom in their choice of the means to be employed, but they will be held responsible for the result of their policy. The question is: are they politically or legally responsible?

17. d. [Their legal/constitutional status and] How they are protectedUnder this section, you could explain that some provisions in the Constitution do not establish “rights” in the sense that citizens can invoke them by ordinary legal means. When a “real” right, an actual constitutional right is involved, a law suit can be brought to court.On the contrary, rights (f.ex. for a minority) do not exist as long as in the last instance the political majority alone is competent to decide what those rights mean and whether they have been infringed in the past.When you have a declarative statement, no rights are bestowed upon a group of individuals / on a minority, like the Samis. Declarative statements mainly have a political value. They establish political or moral obligations, even legal obligations BUT with no definite sanction attached to the non-observation, by the State authorities, of their duties. The very nature of the obligations leave the courts with a limited field of action (even if the measures introduced are unsatisfactory in extent or quality). Declarative statements are not liable to criminal sanction nor to damages as a consequence of the policy decided or followed by the Government. The courts will not be able to set aside statutes or other measures even when clearly in contravention of the duties imposed by the declarative statements, such as article 110, that can be found in the Constitution. In extreme cases, breaches of an obligation stemming from a declarative statement can lead to consequences of a legal / constitutional kind: there can be prosecution and possibly conviction in the Court of impeachment (Riksretten).

18. a. Article 110 a is built on the model of article 110, so they are formally quite similar (similarities)The expression “It is the responsibility of the authorities of the State” in article 110 a is modelled on the provision of article 110 on the right to work. Under this paragraph, you had to explain the purpose of formulating the provisions the way they have been in the Constitution. According to professor Smith, the choice of the words and the detailed drafting of the obligations suggest that the constituents did “their best to ensure that the constitutional amendment should not provide such rights [for the Sami population] as can be enforced through the courts”.Both provisions constitute “a general guideline on the content of which there is broad political consensus”. They don’t express criticism of the prior attitudes or actions of the State authorities. They only express “promises for the future”, f.ex., the promise to “pursue a positive policy in regard to Sami culture”. According to the Commission that worked on article 110 a, the actions required from the State authorities are more limited and, consequently, easier to fulfill.  Neither provision provides any effective guarantee that the goals set will be reached. But they both seek to elevate “the platforms of the political parties to a higher level and (…) [to make] them the binding promises of Society”.

19. b. But article 110 a differs from article 110 (differences)/ Background. Here, you could use the commentary under article 110 of the Constitution and the article written by Eivind Smith on the subject. / Legal content. According to professor Smith, there are nuances in how the two provisions on “duty for the authorities of the State” should be understood. Especially when one takes a look at the preparatory works of article 110 a. And consequently a different legal protection of the rights of the Samis? They might not enjoy the same kind of constitutional protection because there is clearly a difference of scope between the two provisions.