Mæth logh scal land byggæs
Today is Constitution Day, marking that on June 5th 1849, King Frederik VII 'gave' the Danish people a free constitution.
Not that we'd call the Constitution of 1849 free at all by today's terms, but it marked a significant step towards a democratic foundation for Denmark. A parliament (then bi-cameral), a Montesquieu-ish separation of the judicial, legislative and executive powers and some basic civil rights.
Today, a lot of politicians, philosophers and people interested in law are giving constitution speeches. Sadly, I won't be attending any of them.
But I certainly hope that sometime in the not so distant future, the Parliament will agree on making a constitutional commission. Because there are quite many things we should reform. Update the list of basic human rights. Remove anachronisms and archaic, unclear language. And take the time to discuss what is good enough and what isn't.
Regulative and descriptive?
This is definitely not true of the current constitution. One of the most important parts of day-to-day work in the Parliament is what is known as negative parliamentari(an)ism, in effect since 1901. In short it means that no government can function if the majority of Parliament is against it. This is why we often hear party leaders say "we will point to NN as prime minister". This is not mentioned at all in the Constitution, and neither are political parties as these were not part of 19th century politics.
Also, the elaborate description of the King's powers and duties (see below) is by no means relevant today. The function of the Head of State is way less interesting than the constitution makes it look.
The constitution is also very nationalist in its scope. The world has changed remarkably since 1953 in terms of globalisation, and it would be appropriate to somehow reflect this with regards to international cooperation. As opposed to many other modern European constitutions, there's no mentioning of Denmark's place in the world as such.
Render to Caesar the things that are Caesar’s, and to God the things that are God’s
Ideally, yes, I'd prefer to separate church and state. Religious belief should be respected and subject to protection, but it shouldn't be an integral part of the foundation of a modern state. We should not have a ministry for religious affairs, as these should be covered under the right of peaceful assembly and be protected by the laws against discrimination. Religious equality and freedom, so (as §70 already specifies) this does not bereave you of civil rights nor does it exempt you from any civil duties.
There is a major discrepancy between §68 and the fact that priest's salaries are paid over normal taxes. The most common explanation for this is that §4 is a more important principle and that it is quite OK that we have religious freedom (which we do) but not religious equality.
Oh, and please do remove the word 'God' from the constitution altogether (§67). Who says there is only one, and who says that 'God' is the name?
Realistically, this is not close. Although 52% of the Danes are in favour of a separation, there are few politicians (especially in the government) that are willing to undertake such a task. They say that the church should not be separated before under 50% of the Danish population are members. Currently, it's around 80% but falling steadily year after year. Our former Church Minister Tove Fergo suggested that it be possible to exit the State Church over the internet. Did I mention she is a former Church Minister?
Also, the legal foundation for the Evangelican-Lutheran Church is a hodgepodge of pre-1849 laws and royal decrees specifying very minute details such as how long a priest's sermon may last and that it must end with prayers for The Queen and The Royal Family, supplied by newer monolithic laws about financial agreements for short-term replacement priests. Let them handle all that by themselves, damn it. That would in fact be freeing the Evangelican-Lutheran Church from a lot of silly obligations and truly instate religious equality.
L’État, c’est moi
The current constitution of 1953 bears the mark of the original 1849 constitution being a partial transfer of powers from the King to the People. The previous King's Law from 1665 instituted an absolute monarchy, albeit bound to the Church. The King could do everything, except change the King's Law or renounce the Church.
We have a constitutional monarchy today, meaning that the supreme powers of the King are limited by the constitution (§ 12). Not the other way round - that the people have the power and have chosen to transfer it willingly to certain institutions as Sweden's constitution starts.
Following this, there is no consistency in whether 'the King' means the monarch in person (which is a Queen today, btw) or the executive power previously vested then in the King and now in the government.
Tragicomically, the Danish people will be subject to a referendum as to whether or not the act of Succession to the Throne should give men and women equal rights to the throne. Yay for equality, but we are setting one of Europe's most complicated machineries of constitutional change(§88) in motion for one single symbolic change that will at the very earliest have an effect in three generations time. Poor prioritising IMHO.
Ideally, I would prefer that Denmark become a republic with a president.
Realistically, this is highly unlikely due to the popularity of the Royal Family, so I'd settle for a revision that at least removed the last reminiscences of absolute monarchy. For example the part about the King being sacrosanct and above all forms of penal law (§13), the inane State Council headed by the monarch (§17), the appointment of ministers and the countersignature of all laws (§14) by Margrethe, "Queen of Denmark by God's Grace". At the very least we could eliminate the extra delaying bureaucracy that doesn't provide any benefits to the quality of the laws or even adds to the candyfloss image of the Royal Family (hear that, squeey royalists?).
People should not fear their government, their government should fear the people
... and this goes for Parliament too. Many of the legal rights we have are, surprising to many Danes, not at all regulated in the constitution but in various UN and EU treaties or later ordinary laws that we can technically back away from again if there's a plain majority in Parliament. Many of those that are, are severely flawed if not downright broken.
First, although the rights aren't all that bad, most of them are supplied with a small, but potentially dangerous "except by statute" clause. This is in effect a carte blanche for the Parliament to take away our freedom rights, as is seen in the numerous anti-terror laws. As far as I can tell, all of §§43, 71, 72, 75 and 81 give way too much freedom for Parliament to restrain the people.
Oh, and the subsection that made Lotte Noer (in)famous, namely §29, 1 specifies that people on welfare can lose their right to suffrage(!) The actual law was abolished in 1967, I think, but still - this gives Parliament an enormous power as it is at the same time the one that makes the laws about welfare!!!!! Bad, bad, BAD!
Second, and in bizarre opposition to the above, we have some paragraphs that are mere useless statements of best intentions, such as the §75 about work. Why is this in a constitution, damn it?
So, let's cut down to the negative and passive rights - the ones that define our liberty as the absence of force and oppression from others, but let's make them absolute and not subject to Parliament whims. And let positive rights, the ones that require actual work and resources from the surrounding world be everyday politics.
"Go to your brother, kill him with your gun, leave him lying in his uniform, dying in the sun..."
§ 81: "Every male person able to bear arms shall be liable with his person to contribute to the defence of his country." Yeah, you get a notification when you're around 17 that you are due for examination. If you draw an unlucky number, you will serve. You can refuse on grounds of conscience, although you have to serve your country in another way then. You'll be placed somewhere accordingly. All this of course only if you are male.
I have never heard any women object to this, obviously *AHEM*. Why don't we make it universal like in Israel? Universal suffrage, universal equality, universal education - now grab that Neuhausen SIG M/49 and fight sistaz!
"Into the trenches, load the mortars, watch your friends die! Argh nerve gas, smash the atropine needle into your leg! Forward, forward, in Fogh's name! HOLD THE FUCKING LINE OR I'M GONNA IMPEACH YOUR SORRY ASS!"
Ehm, sorry, I got carried away a bit there *wipes brows* :-P
But honestly, shouldn't we change this policy? The whole population wants gender equality in the friggin Act of Succession to the Throne, but can they be bothered to alter THIS? Prove. Me. Wrong. Sisters.
*contemplates making a men's movement*
Trust the People
According to §88, in order for the constitution to be altered it needs two Parliaments in succession to vote in favor and a subsequent public referendum where the majority AND over 40% of the electorate (the ones able to vote) must vote in favor for the unaltered proposal to pass.
Why not do it the other way round? Let it pass in Parliament, let the people vote, and then if it passes, make a new election, forming a new Parliament bound by the rules of the new constitution.
This way, you get the public opinion faster (theoretically up to 4 years), and you get the changes through faster. This wouldn't take anything away from the people, if they reject the proposal then the second Parliament can already start making a better proposal.
As it is now, I think that it only serves to keep the people out. A bad premise for a constitution.
The Law shall be honest and just, bearable, customary, fitting and useful and clear, so that everyone may know and understand, what the Law states
- roughly translated from the 1241 Law of Jutland (Codex Holmiensis) preamble.
Well that is indeed a good principle. Sadly, this is not descriptive of the Danish Constitution. Can you with fair accuracy explain what for example §25 means in a modern practical context?
"The King may, either directly or through the relevant government authorities, make such grants and grant such exemptions from the statutes as are either warranted under the rules existing before June 5, 1849, or have been warranted by a statute passed since that date."
No? It's not extremely obvious? Oh you poor feeble unintelligent soul, let me enlighten you then :-P
As noted before, the 1849 Constitution took away power from the absolute monarch, who had previously issued laws and regulations according to the King's Law's §3. When Denmark got the new Constitution, there were (and still are) a bunch of laws that the Parliament didn't feel the necessity to change at once. Because of this, §25 was inserted in the Constitution to allow for these to live under the new order.
From June 5th 1849, it's the Parliament than can do anything, except changing the Constitution (note then why we need more clearly defined and absolute freedom rights in the Constitution itself!)
So, §25 means that the King (today interpreted as the government) can issue laws without the Parliament, in 4 cases (1849 means June 5th 1849):
Read it again if you didn't get it. I don't think I can explain it much more simple and yet acccurate enough.
And if I add that there has been several cases where ministers have issued regulations with (tacit) reference to §25 instead of going by the modern, democratic book and proposing a law, you'll see that the government also has some interesting powers. Obscured by archaic language.
In fact, many Danes can't understand the constitution's language. If they even bother to read it ever. If the nationalists want us to be proud of our constitution and staunchly defend it to the point of countering any and all attempts to change it.... shouldn't they at least proudly quote it more often? Or are they every bit as afraid of giving it close scrutiny as religious zealots are when it comes to the parts of the Bible that do not at all portray Jesus as a peaceful cuddly hippie-dude?
Who is it really that decides punishment? The courts, according to Montesquieu? Well....
So....prisoners often write to The Queen because she can pardon citizens? No way! Yes, way (§24). She could also, if the Parliament had given consent, have pardoned Erik Ninn-Hansen from the High Court convicting him for the embarrassing Tamil Case (yet another reminiscence from the 1661 absolute monarchy days, where The King presided in the High Court)
So are the courts, the judicial branch, really that independent from the legislative and executive branches (including the friggin constitutional monarch)?
The High Court is apparently de facto constitutional court, following the decision that §20 (the paragraph on surrending powers to supranational institutions) cannot be used to surrender so much power that Denmark ceases to be an independent nation. This question is particularly interesting in terms of EU.
It would be good to have this explicitly placed in the Constitution itself - that it is the High Court that decides whether or not a law is against the Constitution.
Conclusion
Yeah, the current constitutional text is not good... It should be changed. It should be something we can look at and say 'Now this is a proper foundation for my country'. As it is now, it's so flawed it's embarrassing.
One can only hope that after we have voted for gender equality in the Act of Succession, we'll have a government that is willing to make a commission. But yeah, it'll be in 8 years or so before a proposal is due.
Evenso, and in the meantime
Happy Constitution Day every one :-)
- Lars
Not that we'd call the Constitution of 1849 free at all by today's terms, but it marked a significant step towards a democratic foundation for Denmark. A parliament (then bi-cameral), a Montesquieu-ish separation of the judicial, legislative and executive powers and some basic civil rights.
Today, a lot of politicians, philosophers and people interested in law are giving constitution speeches. Sadly, I won't be attending any of them.
But I certainly hope that sometime in the not so distant future, the Parliament will agree on making a constitutional commission. Because there are quite many things we should reform. Update the list of basic human rights. Remove anachronisms and archaic, unclear language. And take the time to discuss what is good enough and what isn't.
Regulative and descriptive?
This is definitely not true of the current constitution. One of the most important parts of day-to-day work in the Parliament is what is known as negative parliamentari(an)ism, in effect since 1901. In short it means that no government can function if the majority of Parliament is against it. This is why we often hear party leaders say "we will point to NN as prime minister". This is not mentioned at all in the Constitution, and neither are political parties as these were not part of 19th century politics.
Also, the elaborate description of the King's powers and duties (see below) is by no means relevant today. The function of the Head of State is way less interesting than the constitution makes it look.
The constitution is also very nationalist in its scope. The world has changed remarkably since 1953 in terms of globalisation, and it would be appropriate to somehow reflect this with regards to international cooperation. As opposed to many other modern European constitutions, there's no mentioning of Denmark's place in the world as such.
Render to Caesar the things that are Caesar’s, and to God the things that are God’s
Ideally, yes, I'd prefer to separate church and state. Religious belief should be respected and subject to protection, but it shouldn't be an integral part of the foundation of a modern state. We should not have a ministry for religious affairs, as these should be covered under the right of peaceful assembly and be protected by the laws against discrimination. Religious equality and freedom, so (as §70 already specifies) this does not bereave you of civil rights nor does it exempt you from any civil duties.
There is a major discrepancy between §68 and the fact that priest's salaries are paid over normal taxes. The most common explanation for this is that §4 is a more important principle and that it is quite OK that we have religious freedom (which we do) but not religious equality.
Oh, and please do remove the word 'God' from the constitution altogether (§67). Who says there is only one, and who says that 'God' is the name?
Realistically, this is not close. Although 52% of the Danes are in favour of a separation, there are few politicians (especially in the government) that are willing to undertake such a task. They say that the church should not be separated before under 50% of the Danish population are members. Currently, it's around 80% but falling steadily year after year. Our former Church Minister Tove Fergo suggested that it be possible to exit the State Church over the internet. Did I mention she is a former Church Minister?
Also, the legal foundation for the Evangelican-Lutheran Church is a hodgepodge of pre-1849 laws and royal decrees specifying very minute details such as how long a priest's sermon may last and that it must end with prayers for The Queen and The Royal Family, supplied by newer monolithic laws about financial agreements for short-term replacement priests. Let them handle all that by themselves, damn it. That would in fact be freeing the Evangelican-Lutheran Church from a lot of silly obligations and truly instate religious equality.
L’État, c’est moi
The current constitution of 1953 bears the mark of the original 1849 constitution being a partial transfer of powers from the King to the People. The previous King's Law from 1665 instituted an absolute monarchy, albeit bound to the Church. The King could do everything, except change the King's Law or renounce the Church.
We have a constitutional monarchy today, meaning that the supreme powers of the King are limited by the constitution (§ 12). Not the other way round - that the people have the power and have chosen to transfer it willingly to certain institutions as Sweden's constitution starts.
Following this, there is no consistency in whether 'the King' means the monarch in person (which is a Queen today, btw) or the executive power previously vested then in the King and now in the government.
Tragicomically, the Danish people will be subject to a referendum as to whether or not the act of Succession to the Throne should give men and women equal rights to the throne. Yay for equality, but we are setting one of Europe's most complicated machineries of constitutional change(§88) in motion for one single symbolic change that will at the very earliest have an effect in three generations time. Poor prioritising IMHO.
Ideally, I would prefer that Denmark become a republic with a president.
Realistically, this is highly unlikely due to the popularity of the Royal Family, so I'd settle for a revision that at least removed the last reminiscences of absolute monarchy. For example the part about the King being sacrosanct and above all forms of penal law (§13), the inane State Council headed by the monarch (§17), the appointment of ministers and the countersignature of all laws (§14) by Margrethe, "Queen of Denmark by God's Grace". At the very least we could eliminate the extra delaying bureaucracy that doesn't provide any benefits to the quality of the laws or even adds to the candyfloss image of the Royal Family (hear that, squeey royalists?).
People should not fear their government, their government should fear the people
... and this goes for Parliament too. Many of the legal rights we have are, surprising to many Danes, not at all regulated in the constitution but in various UN and EU treaties or later ordinary laws that we can technically back away from again if there's a plain majority in Parliament. Many of those that are, are severely flawed if not downright broken.
First, although the rights aren't all that bad, most of them are supplied with a small, but potentially dangerous "except by statute" clause. This is in effect a carte blanche for the Parliament to take away our freedom rights, as is seen in the numerous anti-terror laws. As far as I can tell, all of §§43, 71, 72, 75 and 81 give way too much freedom for Parliament to restrain the people.
Oh, and the subsection that made Lotte Noer (in)famous, namely §29, 1 specifies that people on welfare can lose their right to suffrage(!) The actual law was abolished in 1967, I think, but still - this gives Parliament an enormous power as it is at the same time the one that makes the laws about welfare!!!!! Bad, bad, BAD!
Second, and in bizarre opposition to the above, we have some paragraphs that are mere useless statements of best intentions, such as the §75 about work. Why is this in a constitution, damn it?
So, let's cut down to the negative and passive rights - the ones that define our liberty as the absence of force and oppression from others, but let's make them absolute and not subject to Parliament whims. And let positive rights, the ones that require actual work and resources from the surrounding world be everyday politics.
"Go to your brother, kill him with your gun, leave him lying in his uniform, dying in the sun..."
§ 81: "Every male person able to bear arms shall be liable with his person to contribute to the defence of his country." Yeah, you get a notification when you're around 17 that you are due for examination. If you draw an unlucky number, you will serve. You can refuse on grounds of conscience, although you have to serve your country in another way then. You'll be placed somewhere accordingly. All this of course only if you are male.
I have never heard any women object to this, obviously *AHEM*. Why don't we make it universal like in Israel? Universal suffrage, universal equality, universal education - now grab that Neuhausen SIG M/49 and fight sistaz!
"Into the trenches, load the mortars, watch your friends die! Argh nerve gas, smash the atropine needle into your leg! Forward, forward, in Fogh's name! HOLD THE FUCKING LINE OR I'M GONNA IMPEACH YOUR SORRY ASS!"
Ehm, sorry, I got carried away a bit there *wipes brows* :-P
But honestly, shouldn't we change this policy? The whole population wants gender equality in the friggin Act of Succession to the Throne, but can they be bothered to alter THIS? Prove. Me. Wrong. Sisters.
*contemplates making a men's movement*
Trust the People
According to §88, in order for the constitution to be altered it needs two Parliaments in succession to vote in favor and a subsequent public referendum where the majority AND over 40% of the electorate (the ones able to vote) must vote in favor for the unaltered proposal to pass.
Why not do it the other way round? Let it pass in Parliament, let the people vote, and then if it passes, make a new election, forming a new Parliament bound by the rules of the new constitution.
This way, you get the public opinion faster (theoretically up to 4 years), and you get the changes through faster. This wouldn't take anything away from the people, if they reject the proposal then the second Parliament can already start making a better proposal.
As it is now, I think that it only serves to keep the people out. A bad premise for a constitution.
The Law shall be honest and just, bearable, customary, fitting and useful and clear, so that everyone may know and understand, what the Law states
- roughly translated from the 1241 Law of Jutland (Codex Holmiensis) preamble.
Well that is indeed a good principle. Sadly, this is not descriptive of the Danish Constitution. Can you with fair accuracy explain what for example §25 means in a modern practical context?
"The King may, either directly or through the relevant government authorities, make such grants and grant such exemptions from the statutes as are either warranted under the rules existing before June 5, 1849, or have been warranted by a statute passed since that date."
No? It's not extremely obvious? Oh you poor feeble unintelligent soul, let me enlighten you then :-P
As noted before, the 1849 Constitution took away power from the absolute monarch, who had previously issued laws and regulations according to the King's Law's §3. When Denmark got the new Constitution, there were (and still are) a bunch of laws that the Parliament didn't feel the necessity to change at once. Because of this, §25 was inserted in the Constitution to allow for these to live under the new order.
From June 5th 1849, it's the Parliament than can do anything, except changing the Constitution (note then why we need more clearly defined and absolute freedom rights in the Constitution itself!)
So, §25 means that the King (today interpreted as the government) can issue laws without the Parliament, in 4 cases (1849 means June 5th 1849):
- A law, written after 1849, by Parliament, grants a minister the right to decide
- A law, written before 1849, by the King, grants a minister the right to decide
- A King has, before 1849, made exceptions from his or his predecessors laws (using The King's Law §3)
- The King has, before 1849, using the King's Law §3, issued a permit not based in a written law and which does not directly conflict with a law issued after 1849
Read it again if you didn't get it. I don't think I can explain it much more simple and yet acccurate enough.
And if I add that there has been several cases where ministers have issued regulations with (tacit) reference to §25 instead of going by the modern, democratic book and proposing a law, you'll see that the government also has some interesting powers. Obscured by archaic language.
In fact, many Danes can't understand the constitution's language. If they even bother to read it ever. If the nationalists want us to be proud of our constitution and staunchly defend it to the point of countering any and all attempts to change it.... shouldn't they at least proudly quote it more often? Or are they every bit as afraid of giving it close scrutiny as religious zealots are when it comes to the parts of the Bible that do not at all portray Jesus as a peaceful cuddly hippie-dude?
Who is it really that decides punishment? The courts, according to Montesquieu? Well....
So....prisoners often write to The Queen because she can pardon citizens? No way! Yes, way (§24). She could also, if the Parliament had given consent, have pardoned Erik Ninn-Hansen from the High Court convicting him for the embarrassing Tamil Case (yet another reminiscence from the 1661 absolute monarchy days, where The King presided in the High Court)
So are the courts, the judicial branch, really that independent from the legislative and executive branches (including the friggin constitutional monarch)?
The High Court is apparently de facto constitutional court, following the decision that §20 (the paragraph on surrending powers to supranational institutions) cannot be used to surrender so much power that Denmark ceases to be an independent nation. This question is particularly interesting in terms of EU.
It would be good to have this explicitly placed in the Constitution itself - that it is the High Court that decides whether or not a law is against the Constitution.
Conclusion
Yeah, the current constitutional text is not good... It should be changed. It should be something we can look at and say 'Now this is a proper foundation for my country'. As it is now, it's so flawed it's embarrassing.
One can only hope that after we have voted for gender equality in the Act of Succession, we'll have a government that is willing to make a commission. But yeah, it'll be in 8 years or so before a proposal is due.
Evenso, and in the meantime
Happy Constitution Day every one :-)
- Lars