|Forskning - Avslutade avhandlingsprojekt - Spikblad
|Föreskrift och föreskriftsprövning enligt 1974 års regeringsform / Provision and Judicial Review in Accordance with the Constitution Act (RF)|
|Författare:||Annika Lagerqvist Veloz Roca|
|Språk:||svenska, sammanfattning på engelska|
|Abstract||This work has been divided into three parts, the given connection between which consists in the interlinkage of the "provision" (föreskrift) concepts and the institute judicial review (Föreskriftsprövning) laid down in Chap. 11, Section 14 of the Constitution Act (RF), the applicability of that institute being expressly limited to the alleged unconstitutionality of a provision. For this reason I have proposed that the institute de lege ferenda be termed "the institute of judicial review" and that laws, ordinances, administrative regulations and (municipal) by-laws be collectively termed "provisions" rather than "norms". In the course of this work it has become clear that one difficulty, of both precedent and doctrine, connected with the treatment of the provision and the institute of judicial review in Chap. 11, Section 14 of RF has been the uncertainty prevailing with regard to the scope of the term "norm" and of the associated concept of "review of constitutionality" (normprövning).|
The first part of the present work therefore begins with an account of the ideological background climate from which our new RF has emerged. De lege ferenda, it is proposed that this view be modified in such a way that the citizen is allotted the role of co-agent instead of subject. A change of this kind can be accommodated within the framework of the 1974 RF, which has substituted the principle of power sharing for that of the allocation of functions.
The concluding chapter of this part deals, one by one, with a variety of legally relevant social norms, e.g. general recommendations and administrative decisions, the purpose being to achieve a general distinction between these different norm categories, so as to clarify the provision, a subset of the norm category.
Part II specifically examines the criteria of a provision as stated in the travaux préparatoires of constitutional law, since, in principle, deviation from those criteria should result in that which is presented as a provision not being accepted as such when reviewed under Chap. 11, Section 14 of RF. The rule in question may be a norm, e.g. a general recommendation, but it cannot be a provision, RÅ 1991 ref 44.
Part III is devoted to the question of whether the criteria defined for the framing of a provision are observed in the judicial implementation of competence, under Chap. 11, Section 14 of RF, to assess whether - formally, in substance and in terms of competence - a provision is compatible with constitutional and other superior law. The section begins with a presentation of the institute of judicial review. The evolution of judicial review is briefly described and the question of its necessity considered. The democratic acceptability of the institute is analysed, together with its compatibility with the principle of popular sovereignty and its appropriate wording.
In the review of precedent which has been undertaken here, a discrepancy has been shown to exist between the views taken by the Supreme Administrative Court (RegR) and the Supreme Court (HD) as to the degree of material intervention permissible for an implementing regulation (provision).It should immediately be observed that the number of cases is too small to warrant any conclusions, but on the other hand this nonetheless demonstrable difference should be pointed out, because, if perpetuated, it will mean the courts working with different provision concepts.
I have also proposed, de lege ferenda, that the review of provisions be transferred to a special division of the Supreme Administrative Court. That division, I propose, should be segregated from all involvement in the actual process of legislation.
The division will presumably have to be allotted other, additional duties. One alternative would be for the division also to participate in the normal judicial activities of RegR. Another would be for the division to be tasked as an advisory body on matters of Community law and its relation to national law - a field which at present is receiving insufficient Government attention. Perhaps the same division could also be empowered to make nationally binding advance decisions in such matters; this would reduce the total handling time of the individual transaction.