Supreme court

In some countries, provinces and states, the supreme court functions as a court of last resort whose rulings cannot be challenged. However, in some jurisdictions other phrases are used to describe the highest courts. There are also some jurisdictions where the supreme court is not the highest court.

Although some countries and subordinate states follow the American model of having a supreme court that interprets that jurisdiction's constitution, others follow the Austrian model of a separate constitutional court (first developed in the Austrian Constitution of 1920). The constitutionality of a law is implicit and cannot be challenged. Furthermore, in e.g. Finland, Sweden and Poland, there is a separate Supreme Administrative Court whose decisions are final and whose jurisdiction does not overlap with the Supreme Court.

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 previous rulings (decisions) of a court constitute binding precedent upon the same court or courts of 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 constante, expressed by those courts is often extremely strong. Some exceptions such as Spain are discussed below.

Common law jurisdictions

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 the 'High Court' which could hear appeals from the state Supreme Courts. With the exeption of The Australian Capitol Territory, each state's Supreme Court are divided into two divisions: The Trial Division and The Court of Appeals. Appeals from The ACT Supreme Court are heard in The High Court Justice of Australia. The current Chief Justice is Murray Gleeson.

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 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.

Hong Kong Special Administrative Region, PRC

Prior to the transfer of sovereignty in 1997, Hong Kong was a British colony. Supreme Court of Hong Kong (now known as High Court) was the final court of appeal within the colony. The final adjudication power, like any other British Colonies, was rested with the Judicial Committee of the Privy Council (JCPC) in London, United Kingdom.

After the transfer of sovereignty to the People's Republic of China , the power of final adjudication is now vested in the Court of Final Appeal created in 1997. Under the Basic Law, Constitution 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.

India

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.

Israel

The Supreme Court of Israel was established on 22 July 1948. It succeeded the Supreme Court that existed during the British Mandate. The Supreme Court is the highest judicial instance in Israel hearing administrative petitions as well as criminal and civil appeals. The Supreme Court sits in Jerusalem with jurisdiction vested in the entire State. A ruling of the Supreme Court is supposed to be binding in every court, execept the Supreme Court itself. However, in practice Israeli Judges hardly ever adhere to the principle of binding precedent (stare decisis). In Israel, precedents come with so many distinctions and exceptions, that it is hard to find any reasonable modicum of predictability. Supreme Court Justices, as well as all other judges, are formally appointed by the President of the State after a vote of the "Judicial Appointments Committee". The Appointments Committee is composed of nine members: three Justices of the Supreme Court (including the President of the Court among them), two Ministers (one of them being the Minister of Justice), two Members of the Knesset and two representatives of the Israel Bar Association. Although the Supreme court is supposed to operate with 15 judges, in the past few years no more than ten were sitting on the bench. The reason for this is the Committe's inability to agree on appropriate candidates, and unbridgeable power clashes, ego conflicts and internal conflicts of interest among its members[1]. The Court is heavily backlogged and cases can languish for quite a few years. Initial calendering of a case can be expected one year after filing, and a Judgment can be expected two or three years after oral argument. Judgments of the Israeli Supreme Court tend to be long, tedious and exhausting covering facts, arguments, international comparative law, and ancient Jewish Halacha law and Talmudic debates, which usually showcase the Judge's writing and analytical skills, and tend to forget that there are real people waiting for a simple answer. The process is rather costly. Those filing civil or criminal appeals are ordered to bond the appeal with tens of thousands of Shekels. Those losing a case, even on technicalities or innocent mistakes of the law can easily be fined with additional tens of thousands of Shekels. Former President of the Supreme Court, Aharon_Barak has abolished the standing requirement in administrative petitions, thus allowing almost every organization or individual to petition the Court for injunctions against almost any act of the Government. Barak's legacy also includes the introduction of "good faith" requirement in all contractual and quasi-contractual relations, thus leaving judicial outcomes vulnerable to each Judge's subjective notion of good faith, Bona_fide and again eliminating predictability. Finally, Aharon Barak is also credited for introducing the principle of "balanceability" into the sphere of Governmental actions. Rather than set clear cut rules of operation, the Government's conduct is now a matter of balancing of interests. This exercise in balancing interests is another factor contributing to the unpredictability of the Judiciary and the Israeli Supreme Court's rulings. The current President of the Court, Dorit_Beinish is despised by the current minister of Justice Daniel_Friedmann and as of 2007 they are engaged in noisy and uncivil mudslinging battles, which add not respect to this institution.

Pakistan

The Supreme Court of Pakistan was established on 2 March 1956 under the newly enacted Constitution (1956) of Pakistan. This Court indeed succeeded the Federal Court of Pakistan, established in 1949. The 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. The Chief Justice of Pakistan is appointed by the President. Other Judges are also appointed by the President after consultation with the Chief Justice.

Republic of Ireland

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.

New Zealand

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.

In September 2006, a new design for a dedicated Supreme Court building was announced, with completion set for 2009.

The High Court of New Zealand was until 1980 known as the Supreme Court

United Kingdom

There are three Supreme Court systems in the United Kingdom, one each for the separate legal systems of England and Wales, Northern Ireland and Scotland. Scots law is not a common law legal system, but rather a pluralistic one, based on civil law (see the section for Scotland below.)

England and Wales

Following the enactment of the Constitutional Reform Act 2005 the body known as the Judicial Committee of the House of Lords (the Law Lords) will sit as a separate 'supreme' court (although the doctrine of parliamentary sovereignty remains unchanged by this somewhat confusing use of terminology). The body currently known as the Supreme Court which consists of 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, the High Court and elsewhere) will be re-named to the "Senior Court of Judicature." Notably the Privy Council endures.

Northern Ireland

A similar arrangement is followed in Northern Ireland.

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.

United States

The Supreme Court of the United States is the highest court in the United States, with powers of judicial review given to itself as decided in Marbury v. Madison (1803), though Alexander Hamilton specifically supported limiting the court's powers in Federalist No. 78. Hamilton stated that Supreme Court rulings are not binding outside the will of the executive branch: "The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." And furthermore stated that the Supreme Court "is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two".

Each U.S. state has a state supreme court, though some do not actually use the term "supreme court." In Maine and Massachusetts the highest court is styled the "Supreme Judicial 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 New York, the "Supreme Court" is the trial court of general unlimited jurisdiction and the intermediate appellate court is called the "Supreme Court — Appellate Division".) In West Virginia, the highest court of the state is called "Supreme Court of Appeals." Oklahoma and Texas each have two separate highest courts, one for criminal appeals ("Court of Criminal Appeals") and one for civil cases ("Supreme Court").

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.

Austria

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.

Brazil

The Supreme Federal Tribunal is the highest court of Brazil. It is both the constitutional court and the court of last resort in Brazilian law. It only reviews cases that may be unconstitutional. It also judges, in original jurisdiction, cases involving members of congress, senators, ministers of state, members of the Court and the President and Vice-President of the Republic.

The Superior Justice Tribunal grants writs of certiorari for civil law and criminal law cases. 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 military law.

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.

Denmark

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).

France

France divides supreme jurisdiction into 5 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, or the judgments, of judicial and administrative courts, the Tribunal of the Conflicts, formed in equal part of members of the Court of Cassation and the Council of State (and possibly presided by the Minister of Justice), meets and settles which court system should handle the case, or gives a final judgment
the High Court judges the President of the French Republic in case of high treason

Germany

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.

Netherlands

Hoge Raad der Nederlanden is the Supreme Court of the Netherlands. Its decisions, known as "arresten", are very much respected, if not officially precedential. 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, which amounts to some form of de facto constitutional review. 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)

Italy

The Italian court of last resort for most disputes is called Corte di Cassazione. There is a separate constitutional court, the Corte costituzionale and also a parliamentary court of last resort.

Japan

The Supreme Court of Japan is called 最高裁判所(Saikō-Saibansho).

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).

Peru

See Supreme Court of Peru.

Philippines

While the Philippines is generally considered a civil law nation, its Supreme Court is heavily modeled 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.

Poland

See Supreme Court of the Republic of Poland.

Portugal

See Supreme Court of Portugal.

Russia

The Constitution of the Russian Federation establishes three institutes of judiciary at the level of a supreme court:

the Constitutional Court of the Russian Federation decides whether individual laws and sublaw acts of Russia are compliant to the Constitution;
the Supreme Court of the Russian Federation is the final instance in administrative law, civil law and criminal law cases;
the Supreme Court of Arbitration of the Russian Federation is the final instance for judicial arbitration in economics.

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 as appeals under the Scotland Act 1998 to the Judicial Committee of the Privy Council.

Spain

The high courts in Spain can create binding precedents if they choose to do so.

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.

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 SCA is subordinate to the Constitutional Court, which is the highest court in matters involving the interpretation of the Constitution.

Switzerland

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.

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.

People's Republic of China

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.