A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, apex court, and highest court of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
However, not all highest courts are named as such. Civil law states do not tend to have singular highest courts. Additionally, the highest court in some jurisdictions is not named the "Supreme Court", for example, the High Court of Australia; this is because decisions by the High Court could formerly be appealed to the Privy Council. In a few places, the court named the "Supreme Court" is not in fact the highest court; examples include the New York Supreme Court, which is superseded by the New York Court of Appeals, and the former Supreme Court of Judicature of England and Wales.
Some countries have multiple "supreme courts" whose respective jurisdictions have different geographical extents, or which are restricted to particular areas of law. In particular, countries with a federal system of government typically have both a federal supreme court (such as the Supreme Court of the United States), and supreme courts for each member state (such as the Supreme Court of Nevada), with the former having jurisdiction over the latter only to the extent that the federal constitution extends federal law over state law. Jurisdictions with a civil law system often have a hierarchy of administrative courts separate from the ordinary courts, headed by a supreme administrative court as it the case in the Netherlands. A number of jurisdictions also follow the "Austrian" model of a separate constitutional court (first developed in the Czechoslovak Constitution of 1920).
Within the British Empire, the highest court within a colony was often called the "Supreme Court", even though appeals could be made from that court to the United Kingdom's Privy Council (based in London). A number of Commonwealth jurisdictions retain this system, but many others have reconstituted their own highest court as a court of last resort, with the right of appeal to the Privy Council being abolished.
In jurisdictions using a common law system, the doctrine of stare decisis applies, whereby the principles applied by the supreme court in its decisions are binding upon all lower courts; this is intended to apply a uniform interpretation and implementation of the law. In civil law jurisdictions the doctrine of stare decisis is not generally considered to apply, so the decisions of the supreme court are not necessarily binding beyond the immediate case before it; however, in practice the decisions of the supreme court usually provide a very strong precedent, or jurisprudence constante, for both itself and all lower courts.
- 1 Common law jurisdictions
- 2 Civil law jurisdictions
- 2.1 Austria
- 2.2 Brazil
- 2.3 Republic of China
- 2.4 Croatia
- 2.5 Denmark
- 2.6 France
- 2.7 Germany
- 2.8 The Netherlands
- 2.9 Iceland
- 2.10 Italy
- 2.11 Japan
- 2.12 Luxembourg
- 2.13 Macau
- 2.14 Philippines
- 2.15 Portugal
- 2.16 Scotland
- 2.17 Spain
- 2.18 Sweden
- 2.19 Switzerland
- 2.20 Other civil law jurisdictions
- 2.21 Sri Lanka
- 2.22 South Africa
- 3 Soviet-model jurisdictions
- 4 See also
- 5 Notes and references
Common law jurisdictions
In Australia, the High Court of Australia became the court of last resort with the passing of the Australia Act in 1986. This act abolished the last rights of appeal to the Privy Council. Each state and territory has its own Supreme Court, which is the highest court in that state/territory. This leads to some confusion among those from other jurisdictions as the term "supreme court" seems to refer to the court of last resort. The reason that the High Court of Australia is not named the "supreme court" is purely historical. Before the federation of the Australian colonies as states of Australia (in 1901), each colony had its own independent judicial system with a supreme court as the highest court physically within the colony (with a right of appeal to the Privy Council). On federation, the constitution provided for the establishment of a federal "supreme court", to be named the "High Court" which could hear appeals from the state Supreme Courts. With the exception of the Australian Capital Territory, each state's Supreme Court is divided into two divisions: the Trial Division and the Court of Appeal. Appeals from the ACT Supreme Court are heard in the High Court of Australia. The current Chief Justice of the High Court is Robert French.
The Supreme Court of Bangladesh is created by the provisions of the Constitution of Bangladesh, 1972. There are two Divisions of the Supreme Court, i.e. (a) Appellate Division and (b) High Court Division. Appellate Division is the highest Court of Appeal and usually does not exercise the powers of a court of first instance. Whereas, the High Court Division is a Court of first instance in company and admiralty matters. The Supreme Court of Bangladesh is the protector and guardian of Bangladesh Constitution.
The judgements of Appellate Division of Bangladesh Supreme Court are accessible in the Chancery Law Chronicles.
In Canada, the Supreme Court of Canada was established in 1875 but only became the highest court in the country in 1949 when the right of appeal to the Judicial Committee of the Privy Council was abolished. This court hears appeals of decisions made by courts of appeal from the provinces and territories and appeals of decisions made by the Federal Court of Appeal. The court's decisions are final and binding on the federal courts and the courts from all provinces and territories. The title "Supreme" can be confusing because, for example, The Supreme Court of British Columbia does not have the final say and controversial cases heard there often get appealed in higher courts - it is in fact one of the lower courts in such a process.
In Hong Kong, the Supreme Court of Hong Kong (now known as the High Court of Hong Kong) was the final court of appeal during its colonial times which ended with transfer of sovereignty in 1997. The final adjudication power, as in any other British Colonies, rested with the Judicial Committee of the Privy Council (JCPC) in London, United Kingdom. Now the power of final adjudication is vested in the Court of Final Appeal created in 1997. Under the Basic Law, its constitution, the territory remains a common law jurisdiction. Consequently, judges from other common law jurisdictions (including England and Wales) can be recruited and continue to serve in the judiciary according to Article 92 of the Basic Law. On the other hand, the power of interpretation of the Basic Law itself is vested in the Standing Committee of the National People's Congress (NPCSC) in Beijing (without retroactive effect), and the courts are authorised to interpret the Basic Law when trying cases, in accordance with Article 158 of the Basic Law. This arrangement became controversial in light of the right of abode issue in 1999, raising concerns for judicial independence.
|This section may be confusing or unclear to readers. (June 2012)|
In India, the Supreme Court of India was created on January 28, 1950 after the adoption of the Constitution. Article 141 of the Constitution of India states that the law declared by Supreme Court is to be binding on all Courts within the territory of India. It is the highest court in India and has ultimate judicial authority within India to interpret the Constitution and decide questions of national law (including local bylaws).
With reference to the State of Jammu and Kashmir (J&K) it would be relevant to note that, J&K has for various historical reasons a special status vis-a-vis the other states of India. Article 370 of the Constitution of India carves out certain exceptions for J&K. The Constitution of India is not fully applicable to the state of J&K. This is the effect of Article 370. The Constitution of India is applicable to the state of J&K with various modifications and exceptions. These are provided for in the Constitution (Application to Jammu and Kashmir) Order, 1954. Also, Jammu and Kashmir, unlike the other Indian states, also has its own Constitution. Although the Constitution of India is applicable to Jammu and Kashmir with numerous modifications, the Constitution (Application to Jammu and Kashmir) Order, 1954 makes Article 141 applicable to the state of J&K and hence law declared by Supreme Court is equally applicable to all courts of J&K including the High Court.
The Supreme Court is the highest court in Ireland. It has authority to interpret the constitution, and strike down laws and activities of the state that it finds to be unconstitutional. It is also the highest authority in the interpretation of the law. Constitutionally it must have authority to interpret the constitution but its further appellate jurisdiction from lower courts is defined by law. The Irish Supreme Court consists of its presiding member, the Chief Justice, and seven other judges. Judges of the Supreme Court are appointed by the President in accordance with the binding advice of the Government. The Supreme Court sits in the Four Courts in Dublin.
Israel's Supreme Court is at the head of the court system in the State of Israel. It is the highest judicial instance. The Supreme Court sits in Jerusalem. The area of its jurisdiction is the entire State. A ruling of the Supreme Court is binding upon every court, other than the Supreme Court itself. The Israeli supreme court is both an appellate court and the high court of justice. As an appellate court, the Supreme Court considers cases on appeal (both criminal and civil) on judgments and other decisions of the District Courts. It also considers appeals on judicial and quasi-judicial decisions of various kinds, such as matters relating to the legality of Knesset elections and disciplinary rulings of the Bar Association. As the High Court of Justice (Hebrew: Beit Mishpat Gavoha Le'Zedek בית משפט גבוה לצדק; also known by its initials as Bagatz בג"ץ), the Supreme Court rules as a court of first instance, primarily in matters regarding the legality of decisions of State authorities: Government decisions, those of local authorities and other bodies and persons performing public functions under the law, and direct challenges to the constitutionality of laws enacted by the Knesset. The court has broad discretionary authority to rule on matters in which it considers it necessary to grant relief in the interests of justice, and which are not within the jurisdiction of another court or tribunal. The High Court of Justice grants relief through orders such as injunction, mandamus and Habeas Corpus, as well as through declaratory judgments. The Supreme Court can also sit at a further hearing on its own judgment. In a matter on which the Supreme Court has ruled - whether as a court of appeals or as the High Court of Justice - with a panel of three or more justices, it may rule at a further hearing with a panel of a larger number of justices. A further hearing may be held if the Supreme Court makes a ruling inconsistent with a previous ruling or if the Court deems that the importance, difficulty or novelty of a ruling of the Court justifies such hearing. The Supreme Court also holds the unique power of being able to order "trial de novo" (a retrial).
In Nauru, there is no single highest court for all types of cases. The Supreme Court has final jurisdiction on constitutional matters, but any other case may be appealed further to the Appellate Court. In addition, an agreement between Nauru and Australia in 1976 provides for appeals from the Supreme Court of Nauru to the High Court of Australia in both criminal and civil cases, with the notable exception of constitutional cases.
In New Zealand, the right of appeal to the Privy Council was abolished following the passing of the Supreme Court Act (2003). The new Supreme Court of New Zealand was officially established at the beginning of 2004, although it did not come into operation until July. The High Court of New Zealand was until 1980 known as the Supreme Court.
The Supreme Court has been the apex court for Pakistan since the declaration of the republic in 1956 (previously the Privy Council had that function). The Supreme Court has the final say on matters of constitutional law, federal law or on matters of mixed federal and provincial competence. It can hear appeals on matters of provincial competence only if a matter of a constitutional nature is raised.
With respect to Pakistan's territories (i.e. FATA, Azad Kashmir, Northern Areas and Islamabad Capital Territory (ICT)) the Supreme Court's jurisdiction is rather limited and varies from territory to territory; it can hear appeals only of a constitutional nature from FATA and Northern Areas, while ICT generally functions the same as provinces. Azad Kashmir has its own courts system and the constitution of Pakistan does not apply to it as such; appeals from Azad Kashmir relate to its relationship with Pakistan.
The provinces have their own courts system, with the High Court as the apex court, except insofar as where an appeal can go to the Supreme Court as mentioned above.
The Supreme Court of the United Kingdom was established by the Constitutional Reform Act 2005 with effect from 1 October 2009 and assumed the judicial functions of the House of Lords, which include final appellate jurisdiction in civil cases throughout the UK, and in criminal cases in Northern Ireland, England and Wales. In the United Kingdom, there are separate legislatures with limited devolved powers over Wales, Northern Ireland and Scotland: devolution issues under the Scotland Act 1998, Government of Wales Act and Northern Ireland Act were transferred from the Judicial Committee of the Privy Council to the new Supreme Court by the Constitutional Reform Act.
In respect of Community Law the Supreme Court is subject to the decisions of the European Court of Justice. Since there can be no appeal from the Supreme Court, there is an interlocutory procedure by which the Supreme Court may refer to the European Court questions of European law which arise in cases before it, and obtain a definitive ruling before the Supreme Court gives its judgment.
The Supreme Court shares its members and accommodation at the Middlesex Guildhall with the Judicial Committee of the Privy Council which hears final appeals from certain smaller Commonwealth countries, admiralty cases, and certain appeals from the ecclesiastical courts and statutory private jurisdictions, such as professional and academic bodies.
(The Constitutional Reform Act renamed the rarely cited Supreme Court of Judicature for England and Wales as the Senior Courts of England and Wales).
The Supreme Court of the United States, established in 1789, is the highest Federal court in the United States, with powers of judicial review first asserted in Calder v. Bull (1798) in Justice Iredell's dissenting opinion. The power was later given binding authority by Justice Marshall in Marbury v. Madison (1803). There are currently nine seats on the US Supreme Court.
Each U.S. state has a state supreme court, which is the highest authority interpreting that state's law and administering that state's judiciary. Two states, Oklahoma and Texas, each have two separate highest courts that respectively specialize in criminal cases and civil cases. Although Delaware has a specialized court, the Court of Chancery, to hear cases in equity, it is not a supreme court because the Delaware Supreme Court has appellate jurisdiction over it.
The titles of state supreme court vary, which can cause confusion between jurisdictions because one state may use a name for its highest court that another uses for a lower court. In New York, Maryland, and the District of Columbia the highest court is called the Court of Appeals, a name used by many states for their intermediate appellate courts. Further, trial courts of general jurisdiction in New York are called the Supreme Court, and the intermediate appellate court is called the Supreme Court, Appellate Division. In West Virginia, the highest court of the state is the Supreme Court of Appeals. In Maine and Massachusetts the highest court is styled the "Supreme Judicial Court"; the last is the oldest appellate court of continuous operation in the Western Hemisphere.
Civil law jurisdictions
The Roman law and the Corpus Juris Civilis are generally held to be the historical model for civil law. From the late 18th century onwards, civil law jurisdictions began to codify their laws, most of all in civil codes.
In Austria, the Austrian Constitution of 1920 (based on a draft by Hans Kelsen) introduced judicial review of legislative acts for their constitutionality. This function is performed by the Constitutional Court (Verfassungsgerichtshof), which is also charged with the review of administrative acts on whether they violate constitutionally guaranteed rights. Other than that, administrative acts are reviewed by the Administrative Court (Verwaltungsgerichtshof). The Supreme Court (Oberste Gerichtshof (OGH)), stands at the top of Austria's system of "ordinary courts" (ordentliche Gerichte) as the final instance in issues of private law and criminal law.
In Brazil, the Supreme Federal Tribunal is the highest court. It is both the constitutional court and the court of last resort in Brazilian law. It only reviews cases that may be unconstitutional or final habeas corpus pleads for criminal cases. It also judges, in original jurisdiction, cases involving members of congress, senators, ministers of state, members of the high courts and the President and Vice-President of the Republic. The Superior Court of Justice reviews State and Federal Circuit courts decisions for civil law and criminal law cases, when dealing with federal law or conflicting rulings. The Superior Labour Tribunal reviews cases involving labour law. The Superior Electoral Tribunal is the court of last resort of electoral law, and also oversees general elections. The Superior Military Tribunal is the highest court in matters of federal military law.
Republic of China
In the Republic of China, there are three different courts of last resort:
- Supreme Court of the Republic of China (中華民國最高法院): civil and criminal cases.
- Supreme Administrative Court of the Republic of China (中華民國最高行政法院): executive cases.
- Council of Grand Justices (大法官會議): interpretation of the Constitution, interpretation of laws and regulations, dissolution of political parties in violation of the Constitution, trial of impeachments against the President or Vice President.
The Council of Grand Justices, consisting of 15 justices and mainly dealing with constitutional issues, is the counterpart of constitutional courts in some countries.
All three courts are directly under the Judicial Yuan, whose president also serves as Chief Justice in the Council of Grand Justices.
In Croatia, the supreme jurisdiction is given to the Supreme Court, which secures a uniform application of laws. The Constitutional Court exists to verify constitutionality of laws and regulations, as well as decide on individual complaints on decisions on governmental bodies. It also decides on jurisdictional disputes between the legislative, executive and judicial branches.
In Denmark, all ordinary courts have original jurisdiction to hear all types of cases, including cases of a constitutional or administrative nature. As a result, there exists no special constitutional court, and therefore final jurisdiction is vested with the Danish Supreme Court (Højesteret) which was established 14 February 1661 by king Frederik III.
In France, supreme appellate jurisdiction is divided among three judicial bodies:
- for judicial cases, i.e., civil or criminal matters: Court of Cassation (Cour de cassation)
- for administrative cases: Council of State (Conseil d'État)
- constitutional challenges of statutory laws: Constitutional Council (Conseil constitutionnel)
When there is jurisdictional dispute between judicial and administrative courts: the Court of Arbitration (Tribunal des conflits), which is empanelled half from the Court of Cassation and half from the Council of State and presided over by the Minister of Justice, is called together to settle the dispute or hand down a final decision.
The High Court (Haute Cour) exists only to impeach the President of the French Republic in case of "breach of his duties patently incompatible with his continuing in office". Since a constitutional amendment of 2007, the French Constitution states that the High Court is composed of all members of both Houses of Parliament. As of 2012, it has never been convened.
In Germany, there is no single supreme court.
Final interpretation of the German Constitution, the Grundgesetz, is the task of the Bundesverfassungsgericht (Federal Constitutional Court), which is the de facto highest German court as it can declare federal and state legislation immediately ineffective, and has the power to overrule decisions of all other federal courts despite not being a regular court of appeals in the German court system.
In civil and criminal cases, the Bundesgerichtshof is at the top of the hierarchy of courts. The other branches of the German judicial system each have their own appellate systems, each topped by a supreme court; these are the Bundessozialgericht for social security, the Bundesarbeitsgericht for employment and labour, the Bundesfinanzhof for taxation, and the Bundesverwaltungsgericht for administrative law. The so-called Gemeinsamer Senat der Obersten Gerichtshöfe (Joint Senate of the Supreme Courts), is not a supreme court in itself, but an ad-hoc body that is convened only in when one supreme court intends to diverge from another supreme court's legal opinion. As the courts have well-defined areas of responsibility, this situation rarely arises, and so the Joint Senate only gathers rather rarely, and only to consider matters which are mostly definitory.
In the Netherlands, the Supreme Court of the Netherlands is the highest. Its decisions, known as "arresten", are absolutely final. The court is banned from testing legislation against the constitution, pursuant to the principle of the sovereignty of the States-General; the court can, however, test legislation against treaties. Also, the ordinary courts in the Netherlands, including the Hoge Raad, do not deal with administrative law, which is dealt with in separate administrative courts, the highest of which is the Council of State (Raad van State)
The Supreme Court of Iceland (Icelandic: Hæstiréttur Íslands, lit. Highest Court of Iceland) was founded under Act No. 22/1919 and held its first session on 16 February 1920. The Court holds the highest judicial power in Iceland, where the court system has two levels.
Italy follows the French system of different supreme courts.
The Italian court of last resort for most disputes is the Corte Suprema di Cassazione. There is also a separate constitutional court, the Corte costituzionale, which has a duty of judicial review, and which can strike down legislation as being in conflict with the Constitution.
In Japan, the Supreme Court of Japan is called 最高裁判所 (Saikō-Saibansho; called 最高裁 Saikō-Sai for short), located in Chiyoda, Tokyo, and is the highest court in Japan. It has ultimate judicial authority within Japan to interpret the Constitution and decide questions of national law (including local by laws). It has the power of judicial review (i.e., it can declare Acts of Diet and Local Assembly, and administrative actions, unconstitutional).
In Luxembourg, challenges on the conformity of the law to the Constitution are brought before the Cour Constitutionnelle (Constitutional Court). — The most used and common procedure to present these challenges is by way of the "question préjudicielle" (prejudicial question).
The Court of last resort for civil and criminal proceedings is the "Cour de Cassation".
For administrative proceedings the highest court is the "Cour Administrative" (Administrative Court).
While the Philippines is generally considered a civil law nation, its Supreme Court is heavily modelled after the American Supreme Court. This can be attributed to the fact that the Philippines was colonized by both Spain and the United States, and the system of laws of both nations strongly influenced the development of Philippine laws and jurisprudence. Even as the body of Philippine laws remain mostly codified, the Philippine Civil Code expressly recognizes that decisions of the Supreme Court "form part of the law of the land", belonging to the same class as statutes. The 1987 Philippine Constitution also explicitly grants to the Supreme Court the power of judicial review over laws and executive actions. The Supreme Court is composed of 1 Chief Justice and 14 Associate Justices. The court sits either en banc or in divisions, depending on the nature of the case to be decided.
In Portugal, there are several supreme courts, each with a specific jurisdition:
- The Supreme Court of Justice (Supremo Tribunal de Justiça) - for judicial (civil and criminal) matters;
- The Constitutional Court (Tribunal Constitucional) - for the constitutional matters;
- The Supreme Administrative Court (Supremo Tribunal Administrativo) - for administrative and fiscal matters;
- The Court of Auditors (Tribunal de Contas) - for auditing the public expenditure.
Founded by papal bull in 1532, the Court of Session is the supreme civil court of Scotland, and the High Court of Justiciary is the supreme criminal court. However, the absolute highest court (excluding criminal matters) is the Supreme Court of the United Kingdom.
Spanish Supreme Court is the highest court for all cases in Spain (both private and public). Only those cases related to human rights can be appealed at the Constitutional Court (which also decides about acts accordance with Spanish Constitution).
In Spain, high courts cannot create binding precedents; however, lower rank courts usually observe Supreme Court interpretations. In most private law cases, two Supreme Court judgements supporting a claim are needed to appeal at the Supreme Court.
Five sections form the Spanish Supreme court:
- Section one judges private law cases (including commercial law).
- Section two decides about criminal appeals.
- Section three judges administrative cases and controls government normative powers.
- Section four is dedicated to labour law.
- Section five is dedicated to military justice.
In Sweden, the Supreme Court and the Supreme Administrative Court respectively function as the highest courts of the land. The Supreme Administrative Court considers cases concerning disputes between individuals and administrative organs, as well as disputes among administrative organs, while the Supreme Court considers all other cases. The judges are appointed by the Government. In most cases, the Supreme Courts will only grant leave to appeal a case (prövningstillstånd) if the case involves setting a precedent in the interpretation of the law. Exceptions are issues where the Supreme Court is the court of first instance. Such cases include an application for a retrial of a criminal case in the light of new evidence, and prosecutions made against an incumbent minister of the Government for severe neglect of duty. If a lower court has to try a case which involves a question where there is no settled interpretation of the law, it can also refer the question to the relevant Supreme Court for an answer.
In Switzerland, the Federal Supreme Court of Switzerland is the final court of appeals. Due to Switzerland's system of direct democracy, it has no authority to review the constitutionality of federal statutes, but the people can strike down a proposed law by referendum. According to settled case law, however, the Court is authorised to review the compliance of all Swiss law with certain categories of international law, especially the European Convention of Human Rights.
Other civil law jurisdictions
- For Honduras, see Supreme Court of Honduras.
- For Peru see Supreme Court of Peru.
- For Poland, see Supreme Court of the Republic of Poland.
- For Uganda, see Supreme Court of Uganda
- For Ukraine, see Supreme Court of Ukraine.
In Sri Lanka, the Supreme Court of Sri Lanka was created in 1972 after the adoption of a new Constitution. the Supreme Court is the highest and final superior court of record and is empowered to exercise its powers, subject to the provisions of the Constitution. The court rulings take precedence over all lower Courts. The Sri Lanka judicial system is complex blend of both common-law and civil-law. In some cases such as capital punishment, the decision may be passed on to the President of the Republic for clemency petitions. However, when there is 2/3 majority in the parliament in favour of president (as with present), the supreme court and its judges' powers become nullified as they could be fired from their positions according to the Constitution, if the president wants. Therefore, in such situations, Civil law empowerment vanishes.
In South Africa, the Supreme Court of Appeal (SCA) was created in 1994 and replaced the Appellate Division of the Supreme Court of South Africa as the highest court of appeal in non-constitutional matters. The SAC is subordinate to the Constitutional Court, which is the highest court in matters involving the interpretation of the Constitution.
In most nations with constitutions modelled after the Soviet Union, the legislature was given the power of being the court of last resort. In the People's Republic of China, the final power to interpret the law is vested in the Standing Committee of the National People's Congress (NPCSC). This power includes the power to interpret the basic laws of Hong Kong and Macau, the constitutional documents of the two special administrative regions which are common law and Portuguese-based legal system jurisdictions respectively. This power is a legislative power and not a judicial one in that an interpretation by the NPCSC does not affect cases which have already been decided.
- Independence of the judiciary
- List of national supreme courts
- Separation of powers
Notes and references
- Merriam-Webster's Dictionary of Law and Collins English Dictionary
- "Nauru: Courts & Judgments", United States Department of State
- Agreement between the Government of Australia and the Government of the Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme Court of Nauru, 1976
- "Overview of the Delaware Court System". Delaware Judicial Information Center. Retrieved 2009-12-19.
- Spanish Civil Code, article 1
- Pablo Contreras, Pedro de (ed.). "Curso de Derecho Civil (I)". Colex 2008, p. 167, 168 and 175
- "The Judiciary: The Federal Supreme Court". Government of Switzerland. Retrieved 2010-11-14.