Supreme court: Difference between revisions
Does that really belong up there? |
|||
| Line 69: | Line 69: | ||
===[[Brazil]]=== |
===[[Brazil]]=== |
||
The [[Supreme Federal Tribunal]] is |
The [[Supreme Federal Tribunal]] is tho highest court of Brazil. It is both the constitutional court and the court of last resort in Brazilian law. It only review cases that may be unconstitutional. It also judges, in original jurisdiction, cases in which a congressman, senator, ministers of state, members of the court and the president and vice-president of the republic. |
||
The Superior Justice Tribunal grants [[writs]] of [[certionary]] for [[civil law]] and [[criminal law]] cases. The Superior Labour Tribunal review cases involving [[labour law]]. The Superior Electoral Tribunal is the court of last resort of [[electoral law]], and also overview [[elections in Brazil|general elections]]. The Superior Military Tribunal is the highest court of the [[military law]] |
The Superior Justice Tribunal grants [[writs]] of [[certionary]] for [[civil law]] and [[criminal law]] cases. The Superior Labour Tribunal review cases involving [[labour law]]. The Superior Electoral Tribunal is the court of last resort of [[electoral law]], and also overview [[elections in Brazil|general elections]]. The Superior Military Tribunal is the highest court of the [[military law]] |
||
Revision as of 16:49, 17 March 2006
The supreme court in some countries, provinces, and states, is the highest court in that jurisdiction and functions as a court of last resort whose rulings cannot be appealed. In the United States, for example, there is a federal Supreme Court as well as supreme courts within most of the states. However, some jurisdictions do not use the phrase "Supreme Court" in naming their highest courts, as described below. Although some countries and subordinate states follow the American model of having a supreme court that interprets that jurisdiction's constitution, most (including all of the formerly communist Central and Eastern European nations except Estonia) follow the Austrian model of a separate constitutional court (first developed in the Austrian Constitution of 1920).
Many higher courts create through their decisions case law applicable within their respective jurisdictions or interpret codal provisions in civil-law countries to maintain a uniform interpretation:
- Most common-law nations have the doctrine of stare decisis in which the rulings (decisions) of higher courts constitute binding precedent upon courts of equal or lower status within their jurisdiction.
- Most civil-law nations do not have the official doctrine of stare decisis and hence the rulings of the supreme court are usually not binding outside the immediate case in question. However, in practice, the precedent, or jurisprudence, expressed by those courts is often extremely strong. Some exceptions such as Spain are discussed below.
Common-law jurisdictions
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 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 for the High Court of Australia not being 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 which typically had a supreme court as the highest court physically within the colony Australian court hierarchy. On federation, the constitution provided for the establishment of a High Court which could hear appeal from the state Supreme Courts.
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 rendered by appellate courts from each of the country's provinces and territories, as well as appeals of judgments 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, including the Province of Quebec which has its own distinct legal system in matters of property and civil law based on the Civil Code of Quebec.
In Hong Kong, a special administrative region of the People's Republic of China and former British crown colony, the power of final adjudication which was previously vested with the Privy Council is now vested in the Court of Final Appeal following the transfer of sovereignty to the People's Republic of China in 1997. Under the Basic Law, the constitutional document of Hong Kong, 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, being a national law, is vested in the Standing Committee of the National People's Congress (NPCSC) in Beijing in accordance with Article 158 of the Basic Law. Some are concerned that this arrangement would amount to undermining judicial independence in Hong Kong. Such controversies have arisen in the right of abode issue in 1999.
See also: Supreme Court of Hong Kong
The Supreme Court of India was created on January 28, 1950 after the adoption of a new Constitution. The Supreme Court is a constitutional authority independent from political interference. All judgements are binding across all states of India. The exception being the state of Jammu and Kashmir where the Indian Penal Code is not applicable. The court rulings take precedence over state High Courts. In extremely rare cases such as capital punishment, the decision may be passed on to the President of India for clemency petitions.
The Supreme Court of Pakistan was established on 2nd March 1956 under the newly enacted Constitution (1956) of Pakistan. This Court indeed succeeded the Federal Court of Pakistan, established in 1949. Supreme Court of Pakistan is independent from political interference. All judgements are binding across all states of Pakistan. The Supreme Court is the highest and final superior court of record. Appointment of Supreme Court Judges The Chief Justice of Pakistan is appointed by the President. Other Judges are also appointed by the President after consultation with the Chief Justice.
The Supreme Court is the highest court in the Republic of 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 currently sits in the Four Courts in Dublin.
The right of appeal to the Privy Council has recently been 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.
United Kingdom
There are three Supreme Court systems in the United Kingdom, one each for England and Wales, Northern Ireland and Scotland. Gibraltar also has a Supreme Court, but as an overseas territory, it is legally not part of the United Kingdom.
England and Wales
In England and Wales, the "Supreme Court of Judicature" is not, despite its name, the court of last resort. The Supreme Court of England and Wales has three constituent courts: the Crown Court (which deals with criminal cases), the High Court of Justice (which deals mostly with civil cases) and the Court of Appeal (which considers appeals from both the Crown Court and the High Court). Above these courts are the House of Lords and the Privy Council.
Northern Ireland and Gibraltar
A similar arrangement is followed in Northern Ireland and Gibraltar.
Scotland
In Scotland, the High Court of Justiciary and the Court of Session are collectively known as the Supreme Courts, with the High Court being the supreme criminal court, with no appeal to the House of Lords, and the Court of Session the superior civil court. There remains the possibility of appeal to the House of Lords on matters of civil cases, as well appeals under the Scotland Act 1998 to the Judicial Committee of the Privy Council. (See also the section for Scotland below.)
Privy Council
The Judicial Committee of the Privy Council hears a small group of cases: appeals from certain Commonwealth realms (in the sections below, one may take note of the several countries which have abolished Privy Council appeals), admiralty cases, certain appeals from the ecclesiastical courts, and devolution matters under the Scotland Act 1998, Government of Wales Act and Northern Ireland Act.
Supreme Court of the United Kingdom
In both the Privy Council and House of Lords, the entire body does not hear the cases; rather, the "Law Lords," qualified judges, consider the matter. The Constitutional Reform Act 2005 will replace the House of Lords, insofar as judicial functions are concerned, with a Supreme Court of the United Kingdom, and renames the Supreme Court of Judicature for England and Wales as the Senior Courts of England and Wales.
The Supreme Court of the United States is the highest court in the United States, with powers of judicial review as decided in Marbury v. Madison (1803).
Each U.S. state has a state supreme court, though some do not actually use the term "supreme court." In the Commonwealth of Massachusetts the "Supreme Judicial Court" is the highest court, as well as the oldest appellate court of continuous operation in the Western hemisphere. In New York, Maryland, and the District of Columbia the highest court is the "Court of Appeals." In West Virginia, the highest court of the state is called "Supreme Court of Appeals." Oklahoma and Texas have two separate highest courts, one for criminal appeals ("Court of Criminal Appeals") and one for civil cases ("Supreme Court"). Delaware still maintains a separate "Court of Chancery" to hear final appeals on matters of equity, as distinct from matters of law.
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.
The Austrian Constitution of 1920 (based on a draft by Hans Kelsen) was the second (after the US) to introduce 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 (Oberster Gerichtshof), 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.
The Supreme Federal Tribunal is tho highest court of Brazil. It is both the constitutional court and the court of last resort in Brazilian law. It only review cases that may be unconstitutional. It also judges, in original jurisdiction, cases in which a congressman, senator, ministers of state, members of the court and the president and vice-president of the republic.
The Superior Justice Tribunal grants writs of certionary for civil law and criminal law cases. The Superior Labour Tribunal review cases involving labour law. The Superior Electoral Tribunal is the court of last resort of electoral law, and also overview general elections. The Superior Military Tribunal is the highest court of the military law
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.
France divides supreme jurisdiction into 3 entities:
- judicial cases (civil justice or criminal justice): Cour de Cassation
- most recourses against the administration, cancellation of administrative decisions: Conseil d'État (Council of State)
- constitutional challenges with respect to statute law: Constitutional Council
When there is a conflict between the attributions of the Court of Cassation and the Conseil d'État, the Tribunal of the Conflicts, formed in equal part of members of both institutions and possibly presided by the Minister of Justice, meets and settles which court system should handle the case.
In Germany, there is no single supreme court. Interpretation of the German Constitution, the Grundgesetz, is the task of the Bundesverfassungsgericht (Federal Constitutional Court of Germany).
With civil and criminal cases, the highest court in a hierarchy of appellate courts is the Bundesgerichtshof. The other branches of the German judicial branch for social, labor, taxes and administrative cases each have their own appellate systems and highest courts. There is also a common supreme court of justice, the so-called Gemeinsamer Senat der Obersten Gerichtshöfe (Common Senate of the Supreme Courts of Justice), which acts only in the case that one supreme court of justice disagrees with another court's decision. As the courts have well-defined areas of responsibility, this situation very rarely arises, and the court only gathers rather rarely and only on matters which are mostly definitory.
Hoge Raad der Nederlanden is the Supreme Court of the Netherlands.
The supreme court of Italy is called Corte di Cassazione.
The Supreme_Court_of_Japan is called 最高裁判所(Saikō-Saibansho).
The high courts in Spain can create binding precedents if they choose to do so.
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.
The Federal Supreme Court of Switzerland is the final court of appeals in Switzerland. 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.
Scotland
In Scotland, the highest criminal court is called the High Court of Justiciary. The Court of Session is the highest civil court in Scotland, but its membership is identical to that of the High Court. There are some appeals in civil cases to the Appellate Committee of the House of Lords (i.e. the Law Lords); there is no appeal to the House of Lords in criminal cases.
Quebec
While the rest of Canada uses the system of common law, Quebec has codified its civil law sources in the Civil Code of Quebec. It is interpreted by the Courts of Quebec amongst which the highest court is the Quebec Court of Appeal (no letter "s" in the word "Appeal"). Unlike most other civil-law jurisdictions the principles of stare decisis do apply in Quebec in an unofficial manner and thus it is often called a mixed system (système mixte). It must be noted however that any decision of the Quebec Court of Appeal can be appealed in front of the Supreme Court of Canada. By convention, 3 judges of the Supreme Court come from Quebec in order to be able to rule on matters pertaining to Quebec civil law.
Soviet-model jurisdictions
In most nations with constitutions modeled after the Soviet Union, the legislature was given the power of being the court of last resort. However, because of the lack of a strong legal system, this power was only nominal.
In the People's Republic of China the final power to interpret the law is vested in Standing Committee of the National People's Congress of China. This power includes the power to interpret the basic laws of Hong Kong and Macao, 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.
See also
- State supreme court in the United States
- Justice in Brazil