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Supreme court
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A supreme court, also called a court of last resort or high court, is in some jurisdictions the highest judicial body within that jurisdiction's court system, whose rulings are not subject to further review by another court. The designations for such courts differ among jurisdictions. Courts of last resort typically function primarily as appellate courts, hearing appeals from the lower trial courts or intermediate-level appellate courts.
Many countries in fact have multiple "supreme courts," with each being the court of last resort for a particular geographical region or on a particular area of law.
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A supreme court, also called a court of last resort or high court, is in some jurisdictions the highest judicial body within that jurisdiction's court system, whose rulings are not subject to further review by another court. The designations for such courts differ among jurisdictions. Courts of last resort typically function primarily as appellate courts, hearing appeals from the lower trial courts or intermediate-level appellate courts.
Many countries in fact have multiple "supreme courts," with each being the court of last resort for a particular geographical region or on a particular area of law. The United States, having a federal system of government, has a single Supreme Court of the United States, but each U.S. state furthermore has its own high court over which the U.S. Supreme Court only has jurisdiction on issues of federal law. Other jurisdictions follow the Austrian model of a separate constitutional court (first developed in the Czechoslovak constitution and Austrian Constitution of 1920). Furthermore, in e.g. Finland, Sweden, Czech Republic, Poland, and Taiwan, there is a separate Supreme Administrative Court whose decisions are final and whose jurisdiction does not overlap with the Supreme Court. The U.S. states of Texas and Oklahoma also divide subject matter jurisdiction among two separate courts of last resort, with one hearing criminal cases and the other civil cases.
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
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 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 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 Robert French.
Canada
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 rendered by appellate courts from each of the country's provinces and territories, as well as appeals of judgements created 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.
Hong Kong Special Administrative Region
In Hong Kong, a British colony prior to the transfer of sovereignty to People's Republic of China in 1997, Supreme Court of Hong Kong (now known as High Court) was the final court of appeal within the colony. The final adjudication power, as in any other British Colonies, 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
In India, the Supreme Court of India was created on January 28, 1950 after the adoption of the Constitution. The Supreme Court is a constitutional authority independent from political interference. All judgments 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
Israel's Supreme Court (Hebrew: ??? ????? ??????, Beit haMishpat ha'Elyon) 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 ??? ???? ???? ????; also known by its initials as Bagatz ??"?), 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).
New Zealand
In 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.
Pakistan
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.
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.
United Kingdom
In the United Kingdom, there are three Supreme Court systems, 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.)
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
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.
England and Wales
In England and Wales, the Royal Courts of Justice and the Courts of 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
In Northern Ireland, the Royal Courts of Justice, Belfast and Courts of Northern Ireland follow a similar arrangement.
United States
In the United States, the Supreme Court of the United States is the highest court in the country, 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). 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"; the latter is 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
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 (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
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. 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.
Republic of China
In Republic of China, there are three types of court in the legal system:
- Supreme Court of Republic of China(????????): civil and criminal cases.
- Supreme Executive Court of Republic of China(??????????): executive cases.
- Court of Grand Justice(??????): interpretation of constitution, interpretation of law, political party regulation, impeachment of the president/vice-president.
Croatia
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.
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. Final 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 each have their own appellate systems and highest courts for social (Bundessozialgericht), labor (Bundesarbeitsgericht), taxes (Bundesfinanzhof) and administrative cases (Bundesverwaltungsgericht). The so-called Gemeinsamer Senat der Obersten Gerichtshöfe (Common Senate of the Federal Supreme Courts), is no supreme court in itself, but an ad-hoc body that convenes and acts only in the case that 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 the Common Senate only gathers rather rarely and only on matters which are mostly definitory.
The Netherlands
In the Netherlands, the Hoge Raad der Nederlanden is the Supreme Court. 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, 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
In 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
In Japan, the Supreme Court of Japan is called (Saiko-Saibansho; called ??? Saiko-Sai for short), located in Chiyoda, Tokyo 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 bylaws). It has the power of judicial review (i.e., it can declare Acts of Diet and Local Assembly, and administrative actions, unconstitutional).
Luxembourg
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).
The Philippines
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.
Scotland
In Scotland, the College of Justice, 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.
Sri Lanka
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.
South Africa
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 SCA is subordinate to the Constitutional Court, which is the highest court in matters involving the interpretation of the Constitution.
Switzerland
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 Peru see Supreme Court of Peru.
For Poland, see Supreme Court of the Republic of Poland.
For Portugal, see Supreme Court of Portugal.
In Spain, high courts can create binding precedents if they choose to do so.
Soviet-model jurisdictions
In most nations with constitutions modelled 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 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 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.
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