In dealings with the courts, the basis for major headlines rarely emerges. Media coverage mostly focuses on the cases under consideration.
Oagal regularly writes about how law and justice constitute a challenging area within democracy.
Asserting one’s legal rights is a high-risk endeavor, because the law is complex (there is always another statute or ruling that overrides the legal provision one relies on) and often presupposes the use of costly lawyers. The legal sector appears highly closed, with relatively few people who know one another so well that they can recite who is married to whom and what grades they received in which graduating class. This is also the case in other sectors, but it is particularly evident in the legal profession.
It is also difficult to reach the courts through channels that are otherwise common in society. While private and other public entities operate according to established routines, the courts operate according to both routines and the law of Norway. If you are ordinarily unlucky, your inquiry will concern something regulated by law. In that case, you may be referred to pursue the matter through formal legal proceedings (bring a case). In practice, this amounts to a “no,” and you must therefore be quite passionate to take on the task of asserting your rights.
Citizens in Norway are also in a weak position vis-à-vis the country’s powerful party-controlled state apparatus because the courts cannot, on their own initiative, intervene to safeguard law and justice. Supreme Court Justice Dr. juris Arnfinn Bårdsen has stated that the Nordic countries do not have separate constitutional courts that conduct prior review of legislation, resolve competence conflicts between levels of administration, adjudicate electoral disputes, or more generally provide constitutional opinions to government or parliament. Nevertheless, the highest courts in all these countries perform functions that mean we may, in a certain sense, still be regarded as constitutional courts.
Many have observed that the President of the United States may have sent immigrants out of the country in violation of court injunctions. From this, as Aftenposten has written, a constitutional crisis may arise—something that we Norwegians also react strongly to. In Norway, however, such an injunction directed at the head of the executive branch (the Prime Minister) would not even be issued. Strictly speaking, this is worse than the emergence of a constitutional crisis in the United States, yet it receives no attention—because the fact that something does not happen is difficult to notice. Norwegian popular sovereignty is simply weak compared with that of the United States and many other countries.
Read also: Everyone is equal before the law—except public administration, of course
Another area concerns the protection of Article 104 of the Norwegian Constitution, which establishes that the best interests of the child shall be a fundamental consideration in all matters affecting children. This principle is reinforced by Article 3 (1) of the UN Convention on the Rights of the Child. The Convention requires that the best interests of the child be assessed in all actions concerning children, whether undertaken by courts or other authorities. According to Oagal’s sources, the best interests of the child are well safeguarded in schools, but far less so in administrative bodies and court practice—without the courts undertaking an active constitutional defense of the Constitution.
As a result, the Constitution is often reduced to mere decoration.
Norwegian courts have a limited scope of action compared with those in many other countries. Today, it is largely up to the parties themselves to bring cases before the courts. This can result in matters of fundamental importance never being examined, and individuals and organizations being left without real legal protection. In effect, a large number of capable judges sit around the country with their hands in their laps.
Experience with the Borgarting Court of Appeal suggests something important: that its constitutional function is so far removed from everyday practice that it is no longer recognized as such.
Any judge would strongly disagree with such a claim. Oagal’s editor has fortunately had little direct involvement with the courts beyond being appointed three times as a lay judge in Borgarting (having attended only once), but knows many who have taken on the system.
A plain-spoken summary is that the system is highly closed. Entrenched routines are carried forward year after year in violation of the law. The error-correction system is rigid—once a judgment has been delivered, the process of having it overturned is long and painful, even if the factual basis of the case is flawed and the conclusion therefore wrong. Oagal has also had access to email correspondence documenting unlawful transfers of cases between courts—someone forgot that email histories remain attached. The editorial board readily acknowledges that criticizing the courts is complicated—not least because the media devote little time to this pillar of the tripartite system of power, partly because readers do not click on such “boring” material and because the law is so complex that journalists must work hand in hand with (expensive) lawyers to avoid lawsuits.
All of this forms the background for the editor’s view that Norway needs a review and clemency body as a new institution for justice.
If you have followed the article from the excerpt to this point, an appeal against a judgment in case 24-168520TVI-TOSL/03 (Election Act – exclusion from elections) was on its way to the Borgarting Court of Appeal from the Oslo District Court. Oagal’s editor sent an email (see below) as a contribution to the proceedings before the Borgarting Court of Appeal.
Initially, Borgarting forwarded the matter to the Oslo District Court because the appellate court had no case associated with the case number—despite the obvious inference that “since the sender states the case is on its way to us, it will likely arrive.” When the editor resent the inquiry with additional information about the procedural status, the response followed, partially quoted above:
The court has not received any appeal in this case, and only the parties to the case are entitled to submit evidence and arguments. This inquiry will therefore not be registered in any way whatsoever.
Under the legislation, it is the National Electoral Board that is responsible for handling appeals relating to constitutional issues, cf. Chapter 16 of the Election Act, in particular Section 16-1 (v).
Thus, someone must bring a case in order to trigger the courts’ constitutional role in democracy—popular sovereignty. Yet, as the response makes clear, the courts do not have “access” to (or will not accept) input from the public. This leads to the thought that the courts themselves do not fully understand their role—of course, input should be capable of being taken into account. Perhaps the response meant “we cannot formally take it into account, but we can read it.” If so, that could easily have been stated, given that the volume of case materials may well be overwhelming.
I hope my contribution here may be of use in the proceedings before the Borgarting Court of Appeal. I understand that there is an important meeting on the matter as early as tomorrow, 17 March 2025, and I ask that my contribution be included in the overall assessment.
It is important that the appeal be handled as quickly as possible, so that the outcome may apply to the parliamentary election this autumn.
I am a democracy activist with oagal.com and medvirkning.no as platforms. I have written extensively about the Election Act on Oagal, accessible for example through the menu item “Election legislation” and via search.
The Election Act should be declared invalid in several respects beyond the mere exclusion from elections that it entails, and I will briefly outline this.
1) In Norway, power is divided between the legislative assembly, the executive branch, and the judiciary. The judiciary exercises its constitutional role either through the Supreme Court’s rare direct interventions or through cases such as this appeal. Suing the legislature or the executive requires such extensive resources that people rarely do so. Over time, this has created an imbalance in the tripartite system of power, where it can at times be difficult to discern the boundary between the legislative and executive branches, which have merged into a powerful, unified party-state. At the same time, the courts’ constitutional role has all but disappeared, leaving the people unprotected against party rule.
This case represents a rare opportunity for the courts to act constitutionally on behalf of the people and the Constitution.
2) Under Article 49 of the Constitution, the people exercise legislative power through the Storting. Members of the Storting are elected through free and secret elections.
The new Election Act, however, introduces a “closed list” electoral system, also known as a closed party list. Wikipedia describes this as:
“Elections with closed lists are a variant of list elections in which voters may vote only for parties, without being able to influence which candidates are elected.”
With this, the freedom to choose one’s representatives has been removed from voters as of this year’s election. The new Election Act allows political parties in each electoral district to unilaterally determine the names and order of candidates. Electoral districts might just as well have presented voters with slips showing only party names, since candidate names and order are predetermined by the parties. Voters now vote for parties that have already made the personal selections, and must vote for another party merely to exert indirect influence over candidate choice.
The Election Law Commission did, however, favor personal votes, as set out in NOU 2020: 6 Free and Secret Elections:
Even this appears politicized. The possibility of panachage and striking candidates would help restore a necessary balance between parties and the people. Egil Bakke emphasized the democratic importance of being able to decide whom one does not wish to be represented by. In any case, the reality is that other democracies, such as the United States—about whose democratic decline Norwegian politicians often express concern—retain strong personal electoral systems and courts with a far stronger constitutional role in support of the people.
Although Norway has approximately 150,000 party members, it is a small number of powerful individuals in each electoral district who wield decisive influence over candidate selection and ordering. If, on average, we assume that roughly 15 people effectively decide in each of the nine nationwide parliamentary parties (plus 15 in the Finnmark-based party Pasientfokus) across 19 electoral districts, this amounts to 2,580 individuals determining the composition of the Storting. Even if this number were multiplied by ten, it would still fall far short of the approximately 3.5 million Norwegian voters who are supposed to choose their representatives.
3) The Election Act further weakens democracy by excluding new or alternative parties
The majority of the Election Law Commission sought to amend the Constitution and lower the electoral threshold to three percent, so that parties would gain representation more in line with their share of the vote—normally benefiting smaller parties at the expense of larger ones.
The Commission’s report is described in NOU 2020: 6 Free and Secret Elections, Chapter 1.2 Key proposals from the Commission. It states that “the Commission believes that the current framework largely functions well,” but notably not when it comes to fair representation of smaller parties in the Storting.
Under Section 1.2 Electoral system for parliamentary elections, subsection 1.2.1.1 A more proportional electoral system with a lower threshold, the Commission writes:
The Commission points to two destructive factors for democracy:
Both the executive branch, represented by the Ministry of Local Government and Regional Development, and the legislature were unanimous in rejecting a lower threshold. Nettavisen has covered the issue, including the consequences of lowering the threshold for candidate composition.
4) In connection with the Election Act, several constitutional proposals on direct democracy were rejected
The actions of the legislature must be viewed as a whole, as they further illustrate how party rule has supplanted popular sovereignty—and underscore the importance of point (1): the exercise of the judiciary’s constitutional role, as highlighted by Supreme Court Justice Dr. juris Arnfinn Bårdsen in his lecture “The Nordic Supreme Courts as Constitutional Courts”.
I have shown how parties now unilaterally appoint the individuals who sit in the Storting, and how citizens have only an indirect role through party choice on the ballot. Personal voting at the national level in Norway has ceased, unless the courts intervene.
I have shown that the executive and legislative branches, against recommendations, have invalidated perhaps ten percent of the votes (approximately 300,000) cast for parties that fail to gain representation because the high threshold is maintained.
A final aspect concerns the balance of power between direct democracy and representative democracy (now party rule). Instruments of direct democracy are regulated by the Constitution, not by the Election Act, and several constitutional proposals were therefore considered in parallel with the Election Act.
Several constitutional proposals were rejected—proposals that would have restored some balance to citizens. These proposals concerned citizens’ ability to initiate direct democratic instruments such as referendums and citizen initiatives, with or without legally binding effect on the national assembly.
All proposals were rejected following a recommendation from the Storting’s Standing Committee on Scrutiny and Constitutional Affairs, which once again demonstrates the importance of a stronger constitutional role for the courts—precisely the issue raised by this case and appeal.
De fleste av artiklene på Oagal er utarbeidet av redaksjonen. Innholdet fra redaksjonen er det fortløpende redaksjonelle arbeidet i Oagal. Redaksjonen driver undersøkende journalistikk, utvikler ideer til saker og utarbeider artikler ved hjelp av ulike tilgjengelige kilder og verktøy. Meningsbærende innhold og også reportasjer bærer skribentens navn.
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