REASONS FOR SAYING: NO THANKS!
ANALYSING THE DISCUSSION ABOUT THE NECESSITY OF A CONSTITUTIONAL COURT IN SWEDEN AND FINLAND

Veli-Pekka Hautamäki


A separate constitutional court has not been established in any of the Nordic countries. However, this fact does not suggest that the establishment of a constitutional court would not have been considered when reforming the constitution. In this article the discussion concerning the necessity of a constitutional court in Sweden and Finland is analysed. In addition, the reasons behind the non-adoption of a constitutional court are questioned.

In Sweden and Finland, the discussion concerning the necessity of a constitutional court has been linked with the larger reforms of the constitution. So far, a constitutional court has been seen as too powerful an organ that would cause serious problems to the balance of power. As a matter of fact, a few quite common or even 'traditional' arguments can be found that have been presented against the establishment of a constitutional court.

Firstly, the establishment of a constitutional court would bring about problems within the separation of powers and it is especially assumed that the power of Parliament would be weakened. Secondly, a constitutional court would use political power. Thirdly, the prevailing system of controlling the constitutionality of legislation is satisfactory, and it would, therefore, be unnecessary to establish a constitutional court. Fourthly, a constitutional court would be unsuitable for (unfamiliar to) certain legal cultures. Fifthly, a constitutional court would threaten democracy when the members of the court are not elected democratically. Sixthly, there would not be enough cases for a constitutional court; it would possess un-actuality in the prevailing system.

It is advisable to call into question what the present usefulness of these arguments would be. This is an interesting question, in particular because at present in Sweden the necessity of a constitutional court is - again - being discussed.


Cite as: Veli-Pekka Hautamäki, Reasons for Saying: No Thanks! Analysing the Discussion about the Necessity of a Constitutional Court in Sweden and Finland, vol 10.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (June 2006), <http://www.ejcl.org/101/art101-1.pdf>.

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