DN Debate. The constitution opens for the law against terrorist organisations

the Council rejected recently, the government's proposal to introduce a specific criminal liability for participation in a terrorist organization. The government had started from the assumption that the constitution's freedom of association only protects the lovlig business. Therefore, it would be legally possible in common law to criminalize the illicit activities, such as terrorism.

On good grounds rejected the lawyers of the Council this line of reasoning. The constitutional protection of freedom of association is not limited merely to the lovlig business. Such an interpretation would make the grundlagsskyddet illusory. Then would the association be able to be restricted by the common law determines what is allowed and not.

Wisely draws the government now withdraw its bill. But the alternative need not be a constitutional amendment. The constitution opens today for a law against terrorist organisations. This opportunity has not been taken into account sufficiently.

If the purpose is to protect the democracy in Sweden, any prohibition directed against terrorist organisations that pose a direct threat to the Swedish society. A change in the law could also be directed against criminal organizations, which have a ”military or similar nature”.

freedom of Association may be limited when it comes to associations whose activities are of a ”military or similar nature”. The penal code contains a prohibition against unlawful student union work. The ban was introduced in 1934 against the background that in Sweden, as in several other european countries, formed colonies German nazi with a nationalistic focus.

But the investigation, led by the social democrat, Hjalmar Mehr, chose a more general formulation ( SOU 1975:75). Freedom of association would be limited with regard to activities of ”a military or similar nature”. During the remissbehandlingen was some criticism that went out on this opportunity to restrict the freedom of association was too broad. Despite the elected government of olof Palme and the Swedish parliament to keep the general formulation which continues to be applicable ( proposition 1975/76:209).

the Ability to use this grundlagsregel to prohibit participation in a terrorist organization depends on how one interprets the phrase ”military or similar”. You should then keep in mind that the meaning of the term ”military” has come to be extended. With Russia's annexation of Crimea in 2014, it was clear that an attacker can reach their goals without marching in with the regular troops. Sweden's security situation has been complicated by the fact that we can end up in such a grey zone between war and peace.

the Concept of hybridkrigföring used today to describe a mixture of conventional forces, irregular troops, cyber attacks, psychological warfare, economic sanctions, organized crime and terrorism. Some terrorist organizations can have the military move through to be well organized, have distinctive dress and character, to bear arms and to stand under any form of disciplinary management.

Against this background, it is reasonable to argue that the penal sanctions against participation in certain terrorist organisations would be accommodated within the constitution's wording ”military or similar”.

The major difficulty is to design a prohibition to participate in a terrorist organization so that it does not go out over the civil liberties that are fundamental to a democratic society.

There are many historical examples of liberation movements that the ruling regime stamped as terrorists. A clearly worded ban on supporting a terrorist organization could have been used to punish those who actively supported the algerian resistance against the French colonial power in the 1950s, the vietnamese liberation movement in the 1960s and the long struggle against the south african apartheid system.

A change in the law could also be directed against criminal organizations, which have a ”military or similar nature”.

such A law would be aimed against terrorism, in organized form, not against the individual terrorists who act alone. There are already today, there is a law against terrorist offences. A ban on the participation in a terrorist organization should only be introduced if there is well founded reason to believe that the current legislation is not enough.

the Fight against terrorism is a part of Sweden's security policy. The government has formulated the overall objectives of Sweden's security. One of these objectives is to protect ”the ability to maintain fundamental values such as democracy, the rule of law and human rights” ( government bill 2005/06:133).

. A state is usually defined as a people, a territory and a government capable of exercising control over the territory. The hallmark of a state is the monopoly on coercion and violence in society.

today, there are several worrying signs. The police report on the vulnerable areas draws an ominous conclusion: ”In the most vulnerable areas are the state not as strong as it has traditionally been in the Swedish society”. Sweden's military defence has big gaps and takes a long time to build up. The threat from terrorism shows no sign of slowing down.

the roots of Terrorism risks is rather indirect.

On the one hand, the government can do too much. In the laudable aim of combating terrorism, the legislator can resort to means which restricts our constitutional freedoms and rights.

On the other hand, the government can do little. An inability to prevent new attacks can undermine citizens ' confidence in the democratic rule of law. Terrorism seeks not to win popularity but to intimidate.

Democracy is facing a difficult dilemma. The historical experience shows that democracy is never secure without the need an active defense. The question is how democracy can defend itself without curtailing democracy.

Olof Petersson is the author of three MSB-reports on how the country can safeguard the democratic rule of law:

• To safeguard the democratic rule of law (2014)

• the Democratic opponent (2015)

• the Citizen and the psychological defense (2018)