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The United States is not the only country in the world to have an independent judiciary. The constitutions of most democratic nations also provide for such institutions. Unlike the United States Constitution, many of these constitutions expressly give to the courts the power of judicial review. Although similar in many respects to the U.S. Courts, the structure and function of foreign judiciaries varies, e.g., judges may serve for a certain number of years instead of for life, as do federal judges in the United States. Even international and supranational organizations such as the United Nations and the European Union have independent judiciaries. Some characteristic of independent judiciaries include:
EUROPE France Highest Court: Constitutional Council (Conseil Constitutionell), not called a court (Article 56). Judges: Nine members, not referred to as judges. All members hold office for a nonrenewable term of nine years, with one third of the members' terms expiring every three years. Each of the following persons appoints three members of the Council: The President of the Republic, the President of the Senate, and the President of the National Assembly. Former Presidents of the Republic have an ex officio seat on the Council (Article 56) Selected Duties: Rule on disputed elections for the President (Article 58), Senators, and other national officials (Article 59); oversee referendum proceedings (Article 60); review the constitutionality of proposed institutional acts before they are implemented (Article 61); and, before their promulgation, review the constitutionality of Acts of Parliament if referred by one or more of the following: "the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or sixty deputies or sixty senators" (Article 61). See the full text of the 1958 Constitution of France at www.assemblee-nationale.fr/english/8ab.asp Japan Highest Court: Supreme Court (Article 76) Judges: One Chief Judge and other judges as determined by law. All judges excepting the Chief Judge appointed by the cabinet (Article 79); Chief Judge appointed by the Emperor (Article 6). The appointment of a judge of the Supreme Court is subject to review in the first national election after the judge's appointment and every 10 years thereafter (Article 79). Selected Duties: "The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act" (Article 82). The Supreme Court also has the power to make rules of practice and discipline for the judiciary, attorneys, and public procurators (Article 77). See the full text of the 1946 Constitution of Japan at: http://list.room.ne.jp/~lawtext/1946C-English.html. South Africa Highest Court: Constitutional Court of South Africa (Articles 166, 167). Judges: Eleven judges, including the Chief Justice and Deputy Chief Justice. Appointed by the President after selection by the Judicial Service Commission (Article 134). They hold office for 12 years, but must retire by age 70 (Article 176). Selected Duties: Determine constitutionality of Acts of Parliament or actions of the President; determine the constitutionality of amendments to the Constitution; resolve disputes between various state organs; determine if the President has failed to fulfill a constitutional duty; certify provincial constitutions (Article 167). See full text of the 1996 Constitution of South Africa at: www.concourt.gov.za/site/constitution/english-web/index.html. Papua New Guinea Highest Court: Supreme Court Judges: One Chief Justice, one Deputy Chief Justice, and other judges of the National Court (a lower court) (Section 161 (1)). Parliament determines the number of judges on the National Court, but it is between four and six, excluding the Chief and Deputy Chief Justice (Section 164 ©). Chief Justice appointed by the Governor General (representing the Head of State, the British monarch), upon "advice of the National Executive Council after consultation with the Minister responsible for the National Administration of Justice" (Section 168 (2)). Selected Duties: "Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law" (Section 18 (1)). When a constitutional question arises in a lower court, under most instances, it must be referred to the Supreme Court for resolution (Section 18 (2)). Under certain circumstances, the Supreme Court is empowered to issue advisory opinions (Section 19 (1)). Advisory opinions allow the Court to rule on the constitutionality of an Act without a court case raising the Constitutional issue. See the full text of the Constitution of the Independent State of Papua New Guinea at: www.paclii.org/pg/legis/consol_act/cotisopng534/. Canada Highest Court: Supreme Court of Canada (Chapter S-26, SS 3) Judges: Nine judges, one Chief Justice and eight other judges (Chapter S-26, SS 4). All judges shall be appointed by the Governor-General (the representative of the British monarch, who is the Head of State of Canada) in Council (meaning, with the advice of the Prime Minister) (Chapter S-26, SS4). At least three judges must be from Quebec (Chapter-26, SS 6). Judges hold office during good behavior, but must retire at age 75 (Chapter-26, SS 9). Selected Duties: Final court of appeal for civil and criminal matters, including Constitutional legislation (Chapter-26, SS 52); may review the constitutionality of certain Acts of Parliament if referred to the Court by the Governor-General in Council (usually on the advice of the Prime Minister), the House of Commons, or the Senate (Chapter-26, SS 53, 54). Note: Parliament may prevent the Court from declaring certain Acts in violation of Constitutional legislation, see Article 33, Canadian Charter or Rights and Freedoms. See the full text of the (Canadian) Supreme Court Act (1985) at http://laws.justice.gc.ca/en/S-26/text.html. Argentina Highest Court: Supreme Court (Section 108) Judges: Judges appointed by the President "with the consent of the Senate with two-thirds of its members present, in a public meeting convoked to that effect" (Section 99). Selected Duties: "The Supreme Court and the lower courts of the Nation are empowered to hear and decide all cases arising under the Constitution and the laws of the Nation ... and under the treaties made with foreign nations; all cases concerning ambassadors, public ministers and foreign consuls; cases related to admiralty and maritime jurisdiction; matters which the Nation shall be a party; actions arising between two or more provinces, between one province and the inhabitants of another province, between inhabitants of different provinces, and between one province or the inhabitants thereof against a foreign state or citizen" (Section 116). The Supreme Court has original jurisdiction in cases "concerning foreign ambassadors, ministers and consuls, and in those in which a province shall be a party," and appellate jurisdiction, with exceptions provided for by Congress, in all other cases (Section 117). See the full text of the Argentina Constitution of 1853, with 1994 amendments at: www.oefre.unibe.ch/law/icl/ar00000_.html. European Union Highest Court: Court of Justice (Treaty Establishing the European Community, Article 7, ex Article 4). Judges: One judge from each Member State of the European Union; appointed for a term of 6 years, with a certain number of terms expiring every three years, by "common accord of the governments of the Member States ... " (Treaty Establishing the European Community, Article 221 (ex Article 165). Selected Duties: Provide preliminary rulings on matters arising from legislation/regulations enacted pursuant to the treaties that establish the European Union (Treaty of the European Union, Article 35, SS 1); give preliminary rulings on matters of European Law (the law of the European Union) when requested by a court of a Member State (Treaty of the European Union, Article 35, SS 3); resolve disputes and/or interpretations of European Law arising from the institutions of the European Union (Treaty of the European Union, Article 35, SS 6); resolve disputes between Member States concerning interpretation of European Law (Treaty of the European Union, Article 35, SS 7). See selected texts of treaties at: www.curia.eu.int/en/instit/txtdocfr/index.htm. —FOR COMPARISON— The United States of America Highest Court: Supreme Court (Article I, Section 1). Judges: Congress determines the number of Supreme Court judges, known as justices (Article III, Section 1). Currently, it is nine - one Chief Justice and eight Associate Justices. Justices take office upon being nominated by the President and confirmed by the Senate (Article III, Section 1). They hold office during good behavior, typically, for life (Article III, Section 1). Selected Duties: Original jurisdiction in cases involving suits between the states, ambassadors, and other public ministers (Article III, Section 2). Appellate jurisdiction over any cases involving the Constitution, federal laws, and treaties (Article III, Section 2). Chief Justice presides at impeachment trials of the President (Article I, Section 3). A full list of the powers of the federal courts is found in Article III, Section 2. This list has been partially altered by the Eleventh Amendment (1795). See the full text of the Constitution of the United States of America at: http://straylight.law.cornell.edu/constitution/constitution.overview.html. |
