Courts in Federal Countries Federalists or Unitarists? COURTS IN FEDERAL COUNTRIES Federalists or Unitarists? Courts in Federal Countries Federalists or Unitarists? EDITED by NIChOLAS ARONEy AND JOhN KINCAID UNIvERSITy OF TORONTO PRESS Toronto buffalo London © University of Toronto Press 2017 Toronto buffalo London www.utppublishing.com Printed in the U.S.A. ISbN 978-1-4875-0062-7 Printed on acid-free paper __________________________________________________________________________ Library and Archives Canada Cataloguing in Publication Courts in federal countries : federalists or unitarists? / edited by Nicholas Aroney and John Kincaid. Includes bibliographical references and index. ISbN 978-1-4875-0062-7 (cloth) 1. Constitutional courts – Case studies. 2. Federal government – Case studies. I. Kincaid, John, 1946–, author, editor II. Aroney, Nicholas, author, editor K3370.C69 2017 347’.035 C2016-906227-9 __________________________________________________________________________ University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario. an Ontario government agency un organisme du gouvernement de l’Ontario Funded by the Government of Canada Financé par le gouvernement du Canada The Forum of Federations acknowledges the financial support from the Government of Québec. CC-BY-NC-ND This work is published subject to a Creative Commons Attribution Non-commercial No Derivative License. For permission to publish commercial versions please contact University of Toronto Press. Contents Foreword, Peter h. Russell vii Preface xi 1 Introduction: Courts in Federal Countries 3 nicholas aroney and john kincaid 2 The high Court of Australia: Textual Unitarism vs Structural Federalism 29 nicholas aroney 3 The Constitutional Court of belgium: Safeguard of the Autonomy of the Communities and Regions 69 patrick peeters and jens mosselmans 4 The Supreme Federal Court of brazil: Protecting Democracy and Centralized Power 103 gilberto marcos antonio rodrigues, marco antonio garcia lopes lorencini, and augusto zimmermann 5 The Supreme Court of Canada: The Concept of Cooperative Federalism and Its Effect on the balance of Power 135 eugénie brouillet 6 The Supreme Court of Ethiopia: Federalism’s bystander 165 gedion t. hessebon and abduletif k. idris vi Contents 7 The Federal Constitutional Court of Germany: Guardian of Unitarism and Federalism 193 arthur benz 8 The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism 223 manish tewari and rekha saxena 9 The Supreme Court of Mexico: Reconfiguring Federalism through Constitutional Adjudication and Amendment after Single-Party Rule 256 josé antonio caballero juárez 10 The Supreme Court of Nigeria: An Embattled Judiciary More Centralist Than Federalist 290 rotimi t. suberu 11 The Constitutional Court of South Africa: Reinforcing an hourglass System of Multi-Level Government 328 nico steytler 12 The Constitutional Court of Spain: From System balancer to Polarizing Centralist 367 elisenda casanas adam 13 The Federal Supreme Court of Switzerland: Judicial balancing of Federalism without Judicial Review 404 andreas lienhard, daniel kettiger, jacques bühler, loranne mérillat, and daniela winkler 14 The Supreme Court of the United States: Promoting Centralization More Than State Autonomy 440 ilya somin 15 Comparative Observations and Conclusions 482 nicholas aroney and john kincaid Contributors 541 Index 549 Foreword A book on courts in federal countries is a welcome addition to the literature on federalism. The judicial dimension of federations is one of the least studied aspects of comparative federal governance. This volume demonstrates that whatever the reason for this neglect, it cannot be the unimportance of the subject. In its role as adjudicator of constitutional disputes, the judicial branch of government in a federation – above all its highest court – can play a crucial role in shaping the balance of power between the orders of government in a federation. It is this aspect of judicial federalism that receives most attention in this volume. Another aspect of the subject is the organization and structure of courts in federations – the extent to which the division of judicial power parallels the division of legislative and executive power. This aspect of judicial federalism also receives attention in this volume. The only com- parative book on court structures in federal countries is W.J. Wagner’s Federal States and Their Judiciaries , published in 1959. Most of the world’s federations did not exist when Wagner wrote his book. We need more systematic comparative study of federal court systems to gain a better understanding of how the organization of courts in federations affects the federal balance of power and the quality of justice. There is clearly more than one way of properly organizing courts in a federation. Some federal states, such as the United States and some of the Latin American federations, have highly dualistic court systems, while judicial structures are more unitary in Commonwealth federations such as Canada and India, and in civil law federations such as Germany. The way courts are provided for in a constitution and develop over time is shaped by historic circumstances and legal culture. Whereas no particu- lar court structure is essential for a country to qualify as a federation, viii Foreword the same cannot be said about the first dimension of judicial federalism. The judicial umpiring of constitutional disputes about the powers of the constitutional orders of government in a federation would seem to be an essential feature of government in a federation. In the classical model of a federal state, the powers of its two or three orders of government are constitutionally guaranteed. This volume goes beyond the classical model and includes chapters on the role of the judici- ary in devolutionary multinational models of federalism. Disputes about the boundaries of each order of government’s competence or jurisdiction are bound to arise, and when they do, an independent judicial tribunal would seem the logical institution for settling the disputes. Switzerland is the one federation in which the highest court, the Federal Tribunal, can declare cantonal laws invalid if they exceed the limits on cantons set by the federal constitution, but it must accept laws of the general legislature as valid. however, any law passed by the federation’s legislature can be challenged by referendum at the request of fifty thousand citizens or eight cantons. This volume shows that there is a great deal of variation among federal countries in the importance of judicial review in settling constitutional disputes about federalism. In some of the older federations, such as Aus- tralia, Canada, and the United States, at different times in each country’s history, high-court decisions have played a major role in interpreting the federal division of powers. Political leaders in newer federations may be less inclined to allow the judiciary to play a vital role in constitutional development. The question arises of whether excluding the judiciary from the role of arbiter of the constitutional division of power will under- mine the integrity of the state’s federal character. There is a natural tendency for the highest courts in federal countries to have a centralist bias. If the judges who serve on these courts live in the national capital (as they usually do) and socialize with federal polit- ical leaders who have had an important role in their appointment, they are likely to share the central government’s perspective on the pow- ers it needs in order to govern effectively. Most federal constitutions try to offset this tendency by establishing some checks and balances on the central government’s appointing power. These range from giving the upper chamber in the federal legislature a major role in selecting judges for the highest court (as with Germany’s bundesrat selecting half the members of the Constitutional Court and the U.S. Senate’s advice and consent role in appointing Supreme Court justices), through the inclusion of four members of the Council of States on South Africa’s Foreword ix twenty-three-member Judicial Services Commission, and to the legisla- tive requirement in Australia that the federal attorney general consult her state counterparts before filling a vacancy on the country’s high court. It is ironic that in Canada, a relatively decentralized federation, the fed- eral government’s power to appoint Supreme Court justices is unencum- bered by any obligation to obtain provincial input. but Canada’s highest constitutional court until 1949 was the high court of the british Empire, the Judicial Committee of the Privy Council (JCPC), which fashioned a jurisprudence highly supportive of provincial rights. While Canada’s Supreme Court, since becoming truly supreme, has not felt bound by the JCPC’s legacy, its centralism has been constrained by its justices’ concern to retain their legitimacy as a federal arbiter in a country with a very federal political culture. The Canadian case and accounts of other federations included in this volume suggest that it is the evolving politics of a federal coun- try rather than the intricacies of appointing procedures that have the greatest influence on the role judges perform as arbiters of the federal division of powers. It is easy, for example, to understand why, since the Civil War in the United States, American Supreme Court justices have not shown the respect for states’ rights that Canadian Supreme Court justices continue to show for provincial rights. The Spanish Constitu- tional Court’s engagement with the aggressive claims of autonomous communities shows that it is not only in limiting the growth of central government power that the capacity of high courts to resist the tides of federal politics may be tested. For high courts in countries that adopted federalism at least in part to accommodate regionally based ethnic and/or linguistic minorities, there is a strong rationale for respecting the rights of ethnically distinct sections of the federation. In some of these federations, respect for ethnic and linguistic diversity is built into the structure of their highest court, as with the linguistic requirements of Switzerland’s Federal Tribunal and belgium’s Constitutional Court. Similarly, in Canada, a requirement that at least three of its Supreme Court’s nine justices must come from Quebec ensures at least minimal representation of jurists nurtured in the distinctive civil-law culture of that province. high-court justices in federations may find that respecting the cul- tural distinctiveness of ethnic or linguistic minorities collides with their responsibility for enforcing universal civil rights. In most federations, it is the judiciary’s function not only to adjudicate disputes about federal limits on the powers of governments but also limits on legislative and x Foreword executive powers arising from constitutional guarantees of the funda- mental rights of citizens. Indeed, a crucial turning point in American constitutional history was its Supreme Court’s rulings that the bill of Rights in the U.S. Constitution applies to state governments as well as to the federal government. Those decisions and the practice in other feder- ations of applying constitutionally protected citizens’ rights against all orders of government should be seen not so much as a centralizing but as a unifying influence on the federal polity, ensuring that its citizens share a common set of civil rights, regardless of the unit of the federal state in which they live. Ultimately, the most important function of the judicial branch of a federal government is to ensure that the federal state is a constitutional state. Without a judiciary strong enough to protect the powers of gov- ernments and the rights of citizens, federalism cannot have much reality. I hope this volume will stimulate scholars and practitioners of federalism to give more attention to how this essential judicial function is performed in federations. Peter h. Russell Preface Courts in Federal Countries: Federalists or Unitarists? is an important addition to the books of comparative scholarship produced by the Forum of Federations that detail many sectoral issues, themes, and practical problems that arise in federal systems around the world. The Forum of Federations is an international organization and network created by the Government of Canada. It consists of federal partner countries from both mature and developing nations. The forum seeks to strengthen democratic governance by promoting dialogue on, and understanding of, the values, practices, principles, and possibilities of federalism. Today the work of the Forum of Federations takes the organization to many established and democratizing nations around the globe. It works in these countries sharing the experiences of other federal and decentralized nations that have an interest in shared rule, promoting best practices, and adopting better governance options in the interests of advancing democracy. The forum’s activities in building intellectual capital through pro- jects such as the Courts and Judicial Systems project are a pillar of the organization. These core activities enable it to utilize these experiences around the world with its partners, and in its development assistance programs in countries aspiring to democratic multi-level governance. A comparison of courts in federal countries has seen little scholarly attention; its vital importance in federations was a compelling rea- son to investigate this area as part of the Forum of Federations core programming. In March 2012, the Forum of Federations, in collaboration with the Secrétariat aux affaires intergouvernementales canadiennes, xii Preface Government of Quebec, held an international conference titled “Courts and Judicial Systems in Federal Countries.” The conference was part of a larger project, generously supported by the Quebec Government, the culmination of which is this volume. The international conference was organized by volume editors Nich- olas Aroney (TC beirne School of Law, University of Queensland), John Kincaid (Robert b. and helen S. Meyner Center for the Study of State and Local Government, Lafayette College), Felix Knuepling (Forum of Federations), and Phillip Gonzalez (Forum of Federations). Gonzalez and Knuepling also provided program leadership. The conference took place in Montreal and was structured to incor- porate both an international and a Canadian round table. The meeting brought together country authors and over forty experts, practitioners, and academics. The objective for both meetings was to share experi- ences, debate issues, and examine practices of federal courts and their judicial systems. The opening of the conference was complemented by a keynote address by eminent scholar Peter Russell, professor emeritus of politi- cal science at the University of Toronto. he offered a brief comparative analysis of the countries under investigation and highlighted some of the challenges and experiences of their courts and judicial systems. his address underlined the importance of the project and this publication. The international conference presented for discussion the preliminary findings of the experiences of the thirteen federal countries covered by this project: Australia, belgium, brazil, Canada, Ethiopia, Germany, India, Mexico, Nigeria, South Africa, Spain, Switzerland, and the United States. This sample of country experiences was selected because it offers a mix of new and old, as well as common-law and civil-law, federations at various levels of development. The round table assembled some of Canada’s leading experts, practitioners, and scholars on the subject to debate Canada’s courts and judicial system. During the two days of the conference, country authors presented their case findings based on the template developed by the book edi- tors Nicholas Aroney and John Kincaid. The conference outlined and detailed such national issues as: • The federal system • The court system • Constitutional status of courts and judicial officers • Institutional role of the courts Preface xiii • Curial procedures • Judicial culture • Federalism jurisprudence After each country case presentation, subject-matter experts made their own comparative comments. This drove further discussion and provided an additional layer of context and insight for country-chapter authors. A key objective was to analyse underlying trends, and two questions were especially discussed: • Have courts generally been regarded as institutions that have sup - ported (or alternatively undermined) the values and principles of the federal system? • What “reforms” or changes are being proposed, or should be considered, for strengthening the role of the courts in supporting or improving the proper operation of the federal system? A Canadian round table was held on the final day of the conference with about twenty Canadian experts and government representatives. The round table followed a similar approach. Presentations were given by experts reflecting practice, experience, and opinion from across the country. The group discussed a number of issues dealing with jurisprudence specific to Canada and other factors and influences within the Canadian judicial system. The valuable contribution of all participants fed into the research and content being prepared by each country-chapter author. The editors and the Forum of Federations wish to thank all contribu- tors from the international conference and Canadian round table. This book, therefore, is the product of many people, most impor- tantly, the editors and contributing authors. The editors and the forum heartily thank the authors for their cooperative participation in seeing this book through several stages and some unexpected turns in devel- opment. We enjoyed working with all of them and appreciated their eagerness to produce as comprehensive and up-to-date chapters as possible. We wish to thank the following people who volunteered their time to review and comment on the first drafts of the book’s chapters: Joash Amupitan, University of Jos, Nigeria; A.J. brown, Griffith University, brisbane, Australia; Rajeev Dhavan, senior lawyer, Supreme Court of India; Julio Antonio Rios Figueroa, Centro de Investigación y Docencia xiv Preface Económicas, A.C., Mexico; Alem habtu, Queens College, City Uni- versity of New york, United States; bradley W. Miller, University of Western Ontario and Court of Appeal for Ontario, Canada; Chris- tina Murray, University of Cape Town, South Africa; Johanne Poirier, McGill University, Montreal, Canada; Carles viver i Pi-Sunyer, Institut d'Estudis Autonòmics, barcelona, Spain; Cheryl Saunders, University of Melbourne, Australia; Christoph Schönberger, University of Kon- stanz, Germany; Nicolas Schmitt, Institut du Fédéralisme, Université de Fribourg, Switzerland; Ajay Kumar Singh, hamdard University, New Delhi, India; Jaap de visser, University of the Western Cape, Cape Town, South Africa; and Conrad Weiler, Temple University, Phila- delphia, United States. Three anonymous reviewers engaged by the University of Toronto Press also provided helpful comments. These individuals, of course, are not responsible for any author’s errors of commission or omission, but their observations did help greatly to improve the book. We thank, as well, Dr John Trone in brisbane, Australia, who provided professional research assistance, and Terry A. Cooper at the Robert b. and helen S. Meyner Center for the Study of State and Local Govern- ment, who managed many aspects of the book’s progress. We would like to acknowledge the support offered by several staff members at the Forum of Federations: Fauziah Pruner and Olu Ayeni. Thanks to Forum CEO and President Rupak Chattopadhyay and Forum vice-President Charles Cloutier for their input and guidance. A special note of thanks must be given for the generous financial, intellectual, and logistic support provided by the Secrétariat aux affaires intergouvernementales canadiennes, Government of Quebec. Josée bergeron has been a wonderful and strong supporter of this project. The goal of this book is to add greater insight into the role of judi- cial power in relation to federalism. Given the fundamental role that courts and judicial systems play in most federal systems, the compara- tive research presented in this volume will add immense value and promote greater research and discussion in this vital area of federal governance. Our aim is to encourage practitioners and scholars to uti- lize this resource to devise new solutions and to engage with the many active participants around the world in the growing international net- work on federalism. Ottawa, May 2016 COURTS IN FEDERAL COUNTRIES Federalists or Unitarists? 1 Introduction: Courts in Federal Countries nicholas aroney and john kincaid This book examines courts in thirteen federal and quasi-federal countries: Australia, belgium, brazil, Canada, Ethiopia, Germany, India, Mexico, Nigeria, South Africa, Spain, Switzerland, and the United States. The book’s principal theme is whether the courts, particularly a federation’s highest court, lean in a “unitary” direction by fostering or reinforcing centralization, or in a “federalist” direction by fostering or reinforcing powers of the federation’s constituent polities (e.g., cantons, Länder, provinces, regions, or states). This theme is important because courts are key players in the dynamics of most federations, and they can affect centralization and decentralization directly by ruling on the constitu- tional distribution or powers and indirectly by ruling on social issues, individual rights, economic affairs, and other matters. Courts may choose to some extent to be federalist or unitarist, but they also are pushed in one direction or another by the design of the constitution and by uses and abuses of the constitution by political forces. The book consists of thirteen country chapters written by coun- try experts. Each chapter follows a template which asked authors to (1) outline the main constitutional, structural, and historical features of their federal system; (2) explain the constitutional and institutional sta- tus of their country’s court system or systems, including organization, judicial selection, degree of independence, curial procedures, judicial culture, and degree of attention to federalism matters; and (3) discuss their high court’s federalism jurisprudence in the light of these features. Employing various theoretical perspectives, the book offers possible explanations for the judicial behaviour observed in these countries. Although, because of the diverse conditions in these federations and the exploratory nature of this project, we do not test a specific theory, we hope this work will pave the way for more theory-based research. 4 Courts in Federal Countries basic characteristics of the thirteen federations are listed in table 1. We classified a federation as “devolutionary” when its origins lie in the devolution of powers from a centralized unitary state or colonial sys- tem (e.g., Spain and Nigeria) and as “integrative” when its origins lie in the unification of otherwise actually or potentially independent politi- cal communities (e.g., the United States). We classified Canada as devo- lutionary and integrative, because its foundation involved an imperial division of the unitary Province of Canada into Ontario and Quebec, along with the integration of two maritime provinces, followed by six more provinces from 1870 to 1949. We classified the Federal Republic of Germany similarly, because it was formed from the previously cen- tralized Nazi state, and the boundaries of the Länder were drawn by the Allied military occupiers. however, Länder existed previously and were integrated into a federal arrangement before the Nazi era; then, in 1990, the East German Länder were reconstituted in nearly their historical forms and integrated into a united Germany. I. Courts and Federalism because federalism is a constitutional arrangement in which powers (or competences) are divided and shared between two or three orders of government, courts – as arbiters of constitutional disputes – have a potentially very important role in policing the distribution and sharing of powers. To the extent the courts are independent and vested with a duty to maintain the constitution, they might be expected to uphold the constitutional distribution of powers against political forces bent on altering that distribution in a more centralist or decentralist direction. Albert venn Dicey famously claimed that “federalism” necessarily implies “legalism” and the “predominance of the judiciary.” 1 he defined federalism as a system in which “the ordinary powers of sovereignty are elaborately divided between the common or national government and the separate states.” 2 he believed that proper maintenance of this division of power required a “supreme constitution” with courts having authority to interpret it. 3 Was he right? Partly. 1 Albert venn Dicey, Introduction to the Study of the Law of the Constitution , 8th ed. (London: Macmillan, 1915), 170. 2 Ibid., 139. See also “A true federal government is based on the division of powers” (ibid., lxxvii). 3 Ibid., 140. Table 1 Basic Information about the Case Federations Federation Population 2014 (millions) GDP per capita (US $) Date of first federal constitution a Number of constitutions b Number of constituent polities c Integrative/ devolutionary formation Law tradition d Residual/ reserved powers location e Type of high constitutional court f Australia 23 67,458 1901 1 6 I Common CP Supreme Belgium 11 46,878 1993 1 6 D Civil FED Constitutional Brazil 202 11,208 1891 7 26 D Civil CP Supreme Canada 35 51,958 1867 1 10 DI Common/civil FED Supreme Ethiopia 97 505 1994 1 9 D Common/civil CP Supreme Germany 81 42,269 1949 1 16 DI Civil CP Constitutional India 1,236 1,499 1949 1 28 DI Common FED Supreme Mexico 120 10,307 1824 9 31 D Civil CP Supreme Nigeria 177 3,006 1960 6 36 D Common CP Supreme South Africa 53 6,618 1993 2 9 D Common FED Constitutional Spain 48 29,863 1978 1 17 D Civil FED Constitutional Switzerland 8 84,815 1848 3 26 I Civil CP Supreme United States 318 53,042 1788 1 50 I Common CP Supreme a Excluded are federal-like colonial-era constitutions, post-colonial non-federal constitutions that preceded the first federal constitution, and prior instruments of a confederal nature. b Count includes the first federal constitution and all subsequent constitutions, federal and non-federal. c Excluded are federal districts, territories, and other entities. d Several countries also have customary or religious law systems. e CP = constituent polities; FED = federation. f Some courts classified as “supreme” have more limited jurisdiction than others, and those of Ethiopia and Switzerland lack judicial review authority over federation law. Sources: Population: U.S. Central Intelligence Agency, The World Factbook , https://www.cia.gov/library/publications/the-world-factbook/ rankorder/2119rank.html; GDP: The World Bank, “GDP per Capita, PPP,” data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD; number of constitutions: Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (Cambridge: Cambridge University Press, 2009), 215–20.