Since the Taliban seized power in Afghanistan, local embassy staff, interpreters, and other allies of Western countries are at serious risk of persecution. Many governments have taken steps to ensure allies in the country are evacuated and receive asylum. Yet Sweden has mostly failed to ensure the safety of Afghans who worked for Swedish organisations. The reason has to do with the unique nature of the Swedish Constitution.
Denmark, which hardly welcomes refugees, will provide protection to approximately 200 Afghans who were employed by the Danish Embassy or Armed Forces. The Swedish government, however, is adamant that this approach is impossible. “We do not have that system. In Sweden, it is the authorities who examine the applications for residence permits,” said Ann Linde, the Social Democrats’ Minister for Foreign Affairs.
It emerged on Monday that Swedish diplomats in Kabul had been flown to safety, but Linde could not say what would happen to local embassy staff who remained.
The government is looking for these individuals, but they may struggle to leave the country. Minister of Justice Morgan Johansson says that the government is adjusting the regulations to allow applications for resettlement. It will then be up to the Swedish Migration Agency to determine whether they receive asylum through the UN quota system.
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Despite criticism from the opposition, Johansson and Linde are adamant that the government cannot intervene in individual cases. They are correct. The Instrument of Government, a core text of the Swedish Constitution, prohibits parliament from determining how an administrative authority decides in particular cases.
That means that the government writes the laws on asylum, but the Migration Agency interprets and applies them. The government is rather powerless to intervene to ensure that certain cases are successful.
We heard a lot of the same explanations last year as to why the government couldn’t regulate businesses or individual behaviour during the Covid-19 pandemic without new legislation. The Public Health Agency called the shots.
This system of “administrative dualism” means Sweden has small ministries responsible for very few decisions. Decisions on public cases are made by semi-autonomous agencies. This system sets Sweden apart from almost all of the developed world, where other governments allow for “ministerial rule”, or the ability of ministers to intervene.
The Swedish system has benefits. Some issues are mishandled when they are politicised. Weak agencies might result in overly privatised regulation. Strong ministers might overly securitise issues and usurp power. Either way, policymaking is removed from the calming influence of democratic control.
But there are clear drawbacks, and lives are on the line when the government legally cannot manage crises. Ministers are not responsible for the mistakes of agencies under their purview, while civil servants are shielded by claims of technocratic expertise and strong labour protections. Essentially, it is difficult to hold anyone accountable for preventable deaths in a crisis – like the one unfolding in Afghanistan.
Swedes are fiercely proud of their dualistic system, believing it prevents corruption and provides space for objectivity. There is little appetite to alter the constitutional structure of Swedish bureaucracy. But it is time to ask: is administrative dualism fit for purpose in the 21st century?
There might be a simpler political solution. Since the government and parliament write the laws that agencies “interpret”, most problems can be solved with new legislation. The Swedish legislative process, however, is cumbersome.
Swedish legislation is typically preceded by a commission of inquiry, which is tasked with gathering information and making recommendations. Once a bill is drafted, the constitution mandates the government to seek external opinion through a “referrals” system. The government must consult with relevant public agencies, as well as private organisations and the public “where necessary”.
The referrals process often takes months in order to give all stakeholders the chance to submit written comments. These comments – as well as the commission of inquiry’s final report – are important: Swedish judges use them to determine the “intent” of the legislator when deciding cases.
But surely the parties in parliament and relevant societal actors could agree to an expedited process in times of emergency. Why can’t a referrals process last a day? It does not seem credible that NGOs working on humanitarian issues are unavailable for a last-minute call to save vulnerable people.
Swedish legislation could also be designed with safety valves in place for agencies to interpret rules more broadly or create new ones in times of crisis. Creative lawyers can surely come up with a way to achieve this – preferably with parliamentary approval or other checks on bureaucratic power.
A constitutional revolution is not nigh, but when there is broad consensus that a sticky problem requires an urgent solution, there should also be broad consensus to forego lengthy processes or subject people to excessive red tape. The fall of Kabul is one of those occasions.
Ian Higham is a postdoctoral researcher at the Institute for Futures Studies and a Lecturer in Political Science and International Relations at Stockholm University. He has also taught Swedish politics.