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Denmark
1. Official Denmark
1.9 Constitution

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1.9.1 The Government until 1849
1.9.2 The Constitution
1.9.3 Changes to the Constitution 1866-1953
1.9.4 The Constitution of 1953
1.9.5 The Folketing and the Government
1.9.6 Courts
1.9.7 Constitutional Changes
1.9.8 The European Convention on Human Rights
1.9.9 Denmark in the EU


The cornerstone of the Danish constitution is Danmarks Riges Grundlov (The Constitutional Act of the Kingdom of Denmark) of 5 June 1953. This is the result of developments in constitutional law that began in 1849 with the introduction of a bicameral parliament, with human rights guaranteed by the Constitution. Today Denmark has a unicameral system, a system of parliamentary government and a queen who has only formal and ceremonial functions. The Constitution has not been changed since 1953, but by way of legislation and treaties far-reaching changes have been made in the constitutional legal structure, not least as a result of Danish membership of the EU.  


The Government until 1849    [top]

The Constitution of 1849 brought an end to the system of government that had obtained since the introduction of absolutism in 1660-1661. Under the absolute monarchy, the king had an unusually powerful position according to European reckoning. Not only did he head the government and administration, but he also formally held the presidency of the country's highest court, the Supreme Court, which was established in 1661. Neither the nobility, clergy or citizenry had any formal check on the king's power. During the 18th century profound changes took place in the organisation of the state. Under the influence of French political philosophy the independence of the courts in relation to the king and the rest of the executive power was acknowledged; the king did not take part in the work of the Supreme Court; the nobility and the citizens took part in the administration of the state. The first steps towards a democratic representation were taken 1834, when the king established the Advisory Provincial Assemblies. Discussion here acted as a preparation for the constitutional system that was introduced 1848-1849 by the National Constitutional Assembly. The fact that on 5 June 1849 Denmark was given a new Constitution replacing the absolute monarchical system was due in part to contemporary developments in Europe and in part to internal problems in the Danish monarchy.   The


The Constitution    [top]

The Constitution of 1849 is based on the principle of distribution of power, putting the legislative power in the joint hands of the king and Parliament, and the judicial power with the independent courts. The Parliament (the Rigsdag) consisted of two chambers, the Landsting and the Folketing. Every man of 30 and above had the right to vote in elections to the Folketing; exceptions were servants, those in receipt of charitable relief, those with criminal convictions and bankrupts. Although suffrage was universal according to the standards of that time, only about 13-14% of the adult population were in fact entitled to vote. All those with a right to vote in Folketing elections could also vote in Landsting elections, but the election of members of the Landsting was carried out indirectly, by electors, and eligibility was restricted to those aged 40 or more with a sizeable income.

In stipulating that anyone arrested should be brought before a judge within 24 hours, the 1849 Constitution established the right to freedom of the individual; it also ensured the inviolability of one's dwelling and the right of property. At the same time freedom of expression, freedom to form associations, and freedom of assembly were guaranteed. The Constitution ensured everyone the right to public assistance and free schooling.

The king's powers were strictly limited, but the monarchy retained certain prerogatives. The royal assent was necessary for bills passed by both chambers of the Rigsdag. The king himself chose his ministers, and he represented the nation in relation to other countries.

The courts achieved independence in their functions, but the judges were still appointed by the king. The Constitution promised the introduction of juries in major criminal and political cases, a promise that was not fulfilled until the 1916 Administration of Justice Act.  


Changes to the Constitution 1866-1953    [top]

Denmark's relations with its southern neigbours, particularly Prussia, has played a decisive role for constitutional developments. In 1866 a new Constitution was adopted for the radically reduced area of Denmark left after the Danish defeat at the hands of Prussia in 1864. The 1866 Constitution included strict limits on the almost universal male suffrage that had been recognised by the 1849 Constitution.

In 1915, during the First World War, broad agreement was reached on constitutional reform. Universal suffrage was introduced, so that women and servants were also given the right to vote. While since 1849 there had been elections by majority vote in single constituencies, in 1918 an electoral system was introduced combining proportional representation with elections in individual constituencies. Although since the beginning of the century there had been a desire to introduce referenda, partly by the Social Democrats and partly the Radical Liberals, which were in power during the war, the 1915 Constitution only contained provision for referenda in connection with constitutional change.

A constitutional reform in 1920 adapted the 1915 Constitution to the expanded Danish territory following the return of Southern Jutland to Denmark.

In 1939 the Rigsdag passed a new Constitution, but it did not receive sufficient support in the referendum, and the 1915/20 Constitution thus remained in force during the Second World War. During the German occupation considerable departures from the provisions of the Constitution were necessary; thus decrees replaced certain laws after the resignation of the government on 29 August 1943. These decrees were issued by the civil servant heads of departments.  


The Constitution of 1953    [top]

After the end of the Second World War work began on reforming the Constitution, but only in 1953 was a result achieved that could gain sufficient political support. The Constitution of 5 June 1953 abolished the Landsting and confirmed the parliamentary principle for the composition of the government. Since 1901 the Danish king had accepted that he could not appoint a government that would lack the confidence of the majority in the Folketing; however, it was only in the 1953 Constitution that it was expressly stated that the Folketing can declare its lack of confidence in a government, which in that case must either resign or call an election.

The 1953 Constitution maintains and expands the protection of human rights. Defence of personal freedom was extended to intensified control by the courts of administrative deprival of freedom, e.g. in the case of insanity. And the experiences of the war formed the background of an express prohibition of deprivation of freedom on account of descent, religious or political convictions.

The 1953 Constitution applies also to the Faeroe Islands and Greenland. On the basis of special legislation these two areas have achieved a relatively high degree of self-government, the so-called home rule government (the Faeroe Islands in 1948, Greenland in 1979).

Linked to the Constitution of 1953 there is a special Act of Succession, according to which women also have the right of succession to the Danish throne, but only secondarily. On the death of King Frederik IX in 1972 his eldest daughter acceded to the throne as Queen Margrethe II. As head of state the Queen represents Denmark abroad and heads the government, but has no political power.  


The Folketing and the Government    [top]

The most important political organs are the Folketing and the Government.

The Folketing

The Folketing consists of 179 members, two of whom are elected in Greenland and two in the Faeroe Islands. The remaining 175 members are elected in Denmark. The nominated candidates are elected on the basis of proportional representation, but the candidates run in individual single constituencies, and so most of those elected have a local connection reminiscent of those elected by majority voting in individual constituencies. 135 of the 175 members of the Folketing are elected on the basis of the votes cast for them in the local constituencies, while the remaining 40 members are chosen with a view to ensuring an overall proportional representation of the parties to which the candidates are linked. It is possible to run without belonging to the political parties, but only in once instance (1994) has a candidate succeeded in gaining election in this manner.

The voting age is not specified in the Constitution, but is decided in a special Act that must be approved by referendum. The voting age since 1978 has been 18. Immigrants without Danish nationality do not have the right to vote for the Folketing, but since 1989 they have been able to vote and had the right of election in local elections.

The Government

The Government is appointed by the Queen and consists of the Prime Minister and the other ministers each with their own Department; individual ministers can be without a specific Department (i.e. without portfolio). The choice of Prime Minister and other ministers is determined by the party composition in the Folketing. The government appointed may not have a majority of the Folketing against it. A newly appointed government begins working without necessarily having achieved a positive vote of confidence from the Folketing.

Legislation

The Folketing and the government co-operate in legislation. Bills are laid before the Folketing, where they are read three times. Bills contain not only the proposed legal text, but also the proposer's motives for the proposal. These motives, together with minutes of discussions in the Folketing and its committees can be of significance in a subsequent interpretation of the act when passed.

When a bill has been passed by the Folketing it must be approved by the Queen and the government. The Queen does not adopt an independent stance, but follows the advice of the government.

Elections

Elections to the Folketing take place at least every four years, but the Prime Minister has the right to dissolve the Folketing and thus force an election. This right plays an important part, as the Prime Minister and the Government have, over the years, often been in a weak position in relation to the Folketing. Most governments since the Second World War have been minority governments without any firm agreements on Co-operation, and the government has therefore had to carry out its programme by means of compromise from one matter to another with parties outside the government. The threat of a dissolution of the Folketing has occasionally motivated parties that could foresee a poor election result to enter into a compromise with the government.

The government has a number of other powers that are directly provided for in the Constitution. It is thus the Government that leads the country's foreign policy, but the Folketing controls the government's activities. In major foreign policy decisions the government must consult a special parliamentary committee, the Foreign Policy Committee. Before entering into treaties, the approval of the Folketing can be legally necessary.

Of particular significance is the co-operation developing within the EU. In accordance with the Constitution, accession to the EU (then the EC) took place on the basis of section 20 of the Constitution, which deals with co-operation in the field of foreign policy implying the surrender of constitutional powers to so-called supranational organisations. According to section 20 the establishment of this intense kind of international co-operation demands that there must be a majority in the Folketing of at least 5/6 of the members; if this is not the case a referendum must be held. Such a referendum was held in October 1972, demonstrating that a significant majority of the people was in favour of Denmark's joining the EC. Furthermore, the co-operation within the EU has led to five referenda: in 1986 on the Single European Act, in 1992 on the Maastricht Treaty, in 1993 on the Edinburgh Agreement, in 1998 on the Amsterdam Treaty, and in 2000 on Denmark’s joining the Single European Currency, the euro. When the Folketing has passed a bill, a minority of 1/3 of the members can demand a referendum according to the terms of section 42 of the Constitution. A minority in the Folketing thus has the possibility of ensuring that the majority that has just passed a bill also has a corresponding majority of the people behind it. If it emerges in the referendum that this is not the case, the bill is lost.

The state administration is in the hands of the individual ministers who in accordance with the law issue orders more closely regulating individual areas. Part of the state administration is accorded functional independence of the government and the individual minister. This applies in particular to committees requiring special expert knowledge or with representatives of organisations or political groupings as members.

Public administration is not the province solely of the state. Local authority independence is established in section 82 of the Constitution, and many of the administrative powers are delegated to the 14 counties and the 275 local authorities into which Denmark is divided (2002).

The passing of the Constitution of 1953 allowed for the introduction of a special check on the administration, the Folketing Ombudsman, who took up his duties in 1954. The Ombudsman is chosen by the Folketing and on the basis of complaints or on his own initiative he examines questions of mistakes or negligence in the public administration.  


Courts    [top]

The independent courts constitute part of the distribution of power. Cases are generally dealt with in the first instance by a local or city court, and appeals against the judgements of the city courts can be made to one of the two High Courts. A few big cases and cases touching on administrative matters and certain other categories are dealt with by one of the two High Courts in the first instance. The highest court is the Supreme Court (Højesteret), which only deals with cases that have already been dealt with by one of the two High Courts. In the Danish court system there is no provision for special procedures or court organisation for administrative cases. These are dealt with by the ordinary courts. Nor is there a constitutional court. Constitutional questions must be decided by the court that is otherwise dealing with the case, and in the final instance the question can be decided by the Supreme Court. Danish courts have been very reluctant to have recourse to the Constitution, and it was not until 1999 tbat the Supreme Court rejected a politically important Act as being contrary to the Constitution.

The judges are appointed by the Queen. The independence of the judges in carrying out their duties is ensured by section 64 of the Constitution, according to which in the performance of their duties judges shall be governed solely by the law. In contrast to other state appointed employees, judges cannot be dismissed administratively; they can only be dismissed by a court judgement. In 1999 the administration of the courts was transferred to an independent state institution, the Court Administration.The courts have an essential function in protecting the human rights enshrined in the Constitution. To a great extent the central element in this protection consists in access to checks by the courts. The checks can be obligatory as with arrest of over 24 hours (cf. section 71 of the Constitution), or they can result from informal applications on the part of interested parties as in the case of checks on administrative imprisonment according to section 71, subsection 6, introduced in 1953. Court supervision can also be precursive as with checks on searches and breaches of the secrecy of communications (section 72).

Political freedom encompasses especially the freedom of expression, section 77, freedom of assembly, sect. 79, and the freedom to form associations, section 78. These provisions, however, are not limited to political expressions, assemblies and associations, but also apply to financial, cultural, religious and other activities.  


Constitutional Changes    [top]

It is difficult to change the Constitution. The procedure is spelt out in sect. 88 of the Constitution. A change or addition to the Constitution must first be passed by the Folketing; this approval must then be repeated after a general election; there is the further demand that a referendum shall be held on the constitutional proposal in which a majority of the votes cast must be in favour of the proposal, and this majority shall be of at least 40% of all those entitled to vote. It is especially this last condition which might be difficult to fulfil.

Denmark's membership of the EU since 1973 has radically changed the conditions for parliamentary supervision of the production of regulations. A significant proportion of the regulations obtaining in Denmark have come from EU institutions or have been approved at national level for implementing EU directives. To strengthen parliamentary control a special Folketing committee has been established, the European Committee, chosen by and from the members of the Folketing. The Government consults the committee, which authorises the Government to assert its various standpoints. The European Committee has therefore a basis to exert a very tight control of the Government. The enormous volume of matters to be dealt with, however, makes it difficult to exercise the controls effectively, and preparation in the European Committee does not ensure a public discussion of the matters under review. A Danish Supreme Court judgement confirmed in 1998 that Denmark's membership of EU as regulated by the Maastricht Treaty is not a contravention of the Danish Constitution.

Consideration is regularly given to the question of whether the 1953 Constitution ought to be revised. Some politicians, for instance, would like to strengthen the Folketing by limiting the Government's right to dissolve it and call an election, and by making possible an independent judicial assessment of bills. Other politicians see a great need to strengthen the government, which, for instance in a minority situation, is often in a weak position.  


The European Convention on Human Rights    [top]

In 1953 Denmark ratified the European Convention on Human Rights. Before ratification certain minor changes were carried out in Danish law, so that Danish law was assumed to be in agreement with the Convention. The Convention's provisions could not be directly applicable to Danish law, because it would be necessary to start from the dualistic concept of the relationship between Danish law and international law as two separate judicial areas. With the expansive interpretation which the Court of Human Rights practises, it was a problem that the Convention does not constitute part of Danish law, and in an Act from 1992 it was determined that the Convention is to be considered part of Danish law. The Convention's protection of human rights applies, however, only as a parliamentary act and is not at a level with the protection of human rights contained in the Constitution. Nevertheless, the courts have used the Convention more than the Constitution as the basis for criticising legislation.

Henrik Zahle

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