Thursday 28.05.2020

The legal reason why Sweden did not impose lockdown

To date, Sweden has registered 18,640 infections and 2,194 deaths, much more than in the other Nordic nations. At the time of publishing this article, Norway had reported 201 deaths, Finland 190 and Denmark 422.

Swedes on a grill in the city of Malmö (southern Sweden). Photo: Núria Vila.
Swedes on a grill in the city of Malmö (southern Sweden). Photo: Núria Vila.

In this coronavirus-ravaged world, Sweden stands as an outlier. It is trying to win the fight against the pandemic without resorting to lockdowns or other extremely restrictive measures.

The Nordic nation has constantly made headlines in many countries since the global outbreak of the novel coronavirus because of its softer, gentler and laxer approach to deal with the crisis.

Only time will say if this strategy was successful or not as to date, the figures have cast doubt on its effectiveness. Sweden has registered 18,640 infections and 2,194 deaths, much more than in the neighbouring nations. At the time of publishing this article, Norway had reported 201 deaths, Finland 190 and Denmark 422, according to data from Johns Hopkins University.

Faith in its citizens

When much of Europe and other countries in the world have imposed lockdowns, severely restricting public life and business, the Swedish government did not spring into action to follow suit. Instead, it chose to place its faith on citizens.

Because of this trust, the government has expected that citizens will be following social distancing measures voluntarily, and large-scale geographical lockdowns need not be imposed. Social and institutional trust is in fact among the key values that Nordic societies are based on.

But being a trust-based society does not tell the whole story of why Sweden did not impose lockdown to restrict people’s lives and outdoor activities, and to check the spread of the virus too. Even if the country wants to do so, it has legal limitations that need to be overcome.

In other words, the legal framework within which the government of Sweden operates does not directly allow it to impose draconian measures, such as a widespread or nationwide shutdown.

State of emergency

This is because there is no provision in the Swedish constitution that allows the imposition of a state of emergency during peacetime crisis. There are, however, provisions to do so if there is a war. As coronavirus is a health crisis and is not literally a war, Sweden cannot impose a state of emergency.

Governments in many other countries not only have such extreme power but have also used that to respond to the pandemic. Curfews were imposed in France, Italy, and Spain to make people follow health guidelines. On April 16, less than two weeks after a state of emergency was declared in seven regions, Japan expanded the measure to cover the whole country.

Sweden’s neighbour Finland issued a state of emergency on March 16, resulting in large-scale restrictions on public life, and shutdown of schools, museums and theatres.

The Swedish government cannot declare a state of emergency in the same way governments of other countries can decide on their own to do so, explains Mark Klamberg, professor of international law at Stockholm University.

He says the government needs “additional power” from the parliament to impose such a restriction.

But even then, it is not named a “state of emergency” in the constitution, the professor adds.

Café-Lund-Sweden-by-Núria-VilaSwedes in a cafeteria in the southern city of Lund. Photo: Núria Vila.

Additional powers

This was the key reason why the Swedish government tabled a bill in the parliament early in April, seeking additional decision-making powers to tackle the pandemic. The bill was passed on April 16, and took effect two days later.

The temporary bill –which will remain effective until the end of June– allows the government to take measures that are only linked to tackling the Covid-19 pandemic. The government can decide on implementing measures, if deemed necessary, that will help curb the spread of the virus and protect people. For example, it may close schools, restaurants, gymnasiums and businesses.

However, the bill still does not empower the government to impose a curfew for example, which is too extreme and must by passed by the parliament. Neither can it quarantine the whole nation or completely restrict people’s freedom to go outside. A law is needed for that.

An amendment was also made to the bill, which says the government has the power to impose a measure immediately based on the situation but the proposal will still be sent to the parliament for a review. If the majority in the parliament does not approve the measure and an appeal is filed in court, it can be revoked even after coming into effect.

Gatherings restricted

Swedish constitution does not have a specific provision allowing the government to declare a state of emergency, but clauses in the statute laws serve a similar purpose where relevant. For instance, the public order act was used by the government to restrict gatherings of over 500 people, and later over 50 people in late March.

But the communicable disease control act is largely based on individual responsibility, and hence requires voluntary measures on the part of citizens instead of the government imposing those. The onus is thus on people to act responsibly in order to prevent the spread of an illness.

This is the core we started from, Anders Tegnell, state epidemiologist at Sweden’s Public Health Agency, told the British science journal Nature. It is not legally possible to close down Swedish cities under the current laws, he said.

The communicable disease control act allows mandatory testing and quarantining people within a small area, such as a school or a hotel. But locking down a whole geographical region is not permitted.

The Swedish approach, Professor Klamberg explains, to laws is based on the idea that the state and the government agencies do not have unrestrained power in discreet areas which may lead to abuse in times of crisis.

But beyond the constitution, strategies adopted in Sweden are a matter of policy, and possibly history, tradition and culture too, the academician points out.

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