![]() |
---|
This article is part of a series on the politics and government of Denmark |
|
|
This article needs additional citations for verification . (November 2019) (Learn how and when to remove this template message) |
Judicial review is the procedure by which courts in Denmark assess whether laws are compatible with the Constitution of Denmark, and administrative acts are compatible with the law. The Constitution does not expressly authorise the courts to review statutes, but the courts have established this right by precedence. [1] Constitutionality is usually decided in the Supreme Court, but can be decided at lower levels of the judiciary.[ citation needed ]
As the Constitution does not mention whether the courts can overturn legislative acts as unconstitutional, it has been debated in Danish legal theory whether the courts are able to do this. However the courts have assumed this right which has been accepted by the government as well as Parliament. [1]
There has been little debate whether the courts were able to examine whether the formal constitutional procedures connected to the creation of a law has been followed. The courts have done this in a few cases, but have never ruled a law unconstitutional due to non-compliance with formal procedure.[ citation needed ]
In 1912 the Supreme Court assumed that it had the power to try the constitutionality of tithe abolition laws. In 1921 the Supreme Court came close to declare a land reform law unconstitutional; and it was only because a judge changed his vote that the law was considered constitutional.[ citation needed ]
In 1971, the Supreme Court was close to declare a law unconstitutional. The law demanded that a foundation under the University of Copenhagen was to transfer its collection of Icelandic manuscripts and its capital to the University of Iceland, along with the foundation's capital. [1] The foundation contested that this was violating the constitutional ban on expropriation without compensation. The Supreme Court ruled that the foundation was to transfer the manuscripts without compensation, but not its capital. [2]
In a 1980 case concerning whether a law can ban private shipping companies from transporting goods to and from Greenland was heard. In reality there was only one company affected by the law, and the Eastern High Court ruled that the law expropriated the business of that shipping company and awarded the company a compensation.[ citation needed ]
![]() | Wikisource English translation of the Supreme Court's Judgement in The Tvind Case (1999) |
The only case where a law was ruled unconstitutional is from 1999, where several named individual schools from the Tvind network was cut off from government funding. [3] The law was passed because the schools were suspected of receiving funding based on forged numbers of students. To avoid a lot of lawsuits, a law was passed cutting the Tvind schools from government funding and barring them from suing the government over the lost funding.[ citation needed ] The Supreme Court declared this to be a violation of the separation of powers and declared the law unconstitutional. [3]
As the Danish courts are formally only able to decide in concrete cases an unconstitutional law is technically still in force. However a court ruling that a law is unconstitutional means that authorities will not again try to apply the law as they would expect to be met with a lawsuit they are guaranteed to lose.[ citation needed ] There has been at least two cases on the constitutionality of Danish membership of the European Union. [4]
Since the courts are only competent to rule in concrete disputes[ citation needed ] not everyone can sue the state for passing an unconstitutional law. To do this the plaintiff has to have a legal interest in the case. [1] However in 1996 the Supreme Court ruled that a group of citizens had legal interest in suing the prime minister over the law on accession to the European Union. [5] The Supreme Court has taken the stance that Denmark's relation to the European Union was affecting the entire population in many substantial areas and that every Danish citizen thus had legal interest in the constitutionality of the question. [1]
Denmark has no specialised constitutional court and thus the question on the constitutionality of a law is to be contested before the ordinary courts. All courts are able to rule on the constitutionality of a law, but in practice such highly political cases would be appealed to the Supreme Court.[ citation needed ]
As for judicial review of acts of the administration rather than pieces of legislation, Article 63 of the Danish Constitution provides that the judiciary is entitled to try any question relating to the limits to the executive's powers. This is traditionally construed to mean that beyond the sphere of criminal procedure, unless otherwise provided for by legislation, the judiciary may try any question of fact and of law, whereas courts traditionally do not review discretion exercised by the administration. In certain areas, however, such as tax law, courts exercise a wider review, as well as in cases concerning just reparation for expropriation of property, as provided for by Article 73(3) of the Danish Constitution. Other areas where the standard of scrutiny may traditionally be less extensive include, inter alia, cases of royal prerogative, such as foreign policy actions of the executive.[ citation needed ]
Marbury v. Madison, 5 U.S. 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that they find to violate the Constitution of the United States. Decided in 1803, Marbury remains the single most important decision in American constitutional law. The Court's landmark decision established that the U.S. Constitution is actual law, not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive and judicial branches of the federal government.
In United States constitutional law, the political question doctrine holds that a constitutional dispute that requires knowledge of a non-legal character or the use of techniques not suitable for a court or explicitly assigned by the Constitution to the U.S. Congress, or the President of the United States, lies within the political, rather than the legal, realm to solve, and judges customarily refuse to address such matters. The idea of a political question is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and decide a legal question, not a political question. Legal questions are deemed to be justiciable, while political questions are nonjusticiable. One scholar explained:
The political question doctrine holds that some questions, in their nature, are fundamentally political, and not legal, and if a question is fundamentally political ... then the court will refuse to hear that case. It will claim that it doesn't have jurisdiction. And it will leave that question to some other aspect of the political process to settle out.
Article Three of the United States Constitution establishes the judicial branch of the federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress. Article Three empowers the courts to handle cases or controversies arising under federal law, as well as other enumerated areas. Article Three also defines treason.
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. Standing exists from one of three causes:
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important to the idea of separation of powers.
In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review. The term is Latin for "to be made certain", and comes from the opening line of such writs, which traditionally began with the Latin words "Certiorari volumus...".
The Court of Cassation is one of the four courts of last resort in France. It has jurisdiction over all civil and criminal matters triable in the judicial system, and is the supreme court of appeal in these cases. It has jurisdiction to review the law, and to certify questions of law, to determine miscarriages of justice. The Court is located in the Palace of Justice in Paris.
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established rules, rights, and freedoms, among other things.
Constitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When one of these directly violates the constitution, it is unconstitutional. All the rest are considered constitutional until challenged and declared otherwise, typically by courts through judicial review.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.
The Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958 to ensure that constitutional principles and rules are upheld. It is housed in the Palais-Royal, Paris. Its main activity is to rule on whether proposed statutes conform with the Constitution, after they have been voted by Parliament and before they are signed into law by the President of the French Republic.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), is a landmark decision by the Supreme Court of the United States in which the Court held that federal courts did not have the judicial power to create general federal common law when hearing state law claims under diversity jurisdiction. In reaching this holding, the Court overturned almost a century of federal civil procedure case law, and established the foundation of what remains the modern law of diversity jurisdiction as it applies to United States federal courts.
The Constitutional Act of the Realm of Denmark, also known as the Constitutional Act of the Kingdom of Denmark, or simply the Constitution, is the constitution of the Kingdom of Denmark, applying equally in the Realm of Denmark: Denmark proper, Greenland and the Faroe Islands. The first constitution was adopted in 1849, and the current constitution is from 1953. It is one of the oldest constitutions in the world. The Constitutional Act has been changed a few times. The wording is general enough to still apply today.
In the United States, judicial review is the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define a power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.
The supreme court is the highest court within the hierarchy of courts in many legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and highcourt of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.
The judiciary of Malta interprets and applies the laws of Malta, to ensure equal justice under law, and to provide a mechanism for dispute resolution. The legal system of is based partially on English law and partly on Continental law, whilst also being subject to European Union law.
Pacific Legal Foundation(PLF) is a libertarian public interest law firm in the United States. PLF was established for the purpose of defending and promoting individual and economic freedom in the courts. To that end, PLF attorneys provide pro bono legal representation to clients, file amicus curiae briefs, and participate in administrative proceedings with the goal of supporting property rights, equality before the law, freedom of speech and association, economic liberty, and separation of powers. They have represented clients in 14 cases before the United States Supreme Court.
Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
United States v. Hatter, 532 U.S. 557 (2001), was a United States Supreme Court case decided in 2001. The case concerned an alleged violation of the Compensation Clause of the United States Constitution when Congress extended Medicare and Social Security taxes to federal judge salaries. Additionally, the case dealt with whether a later increase of federal judge salaries, greater than the new taxes, remedied the potential violation.
Collegium system of Supreme Court and High Courts of India, based on the precedence established by the "Three Judges Cases", is a legally valid system of appointment and transfer of judges in the Supreme Court of India (SC) and all High Courts of India (HC). The judges in lower courts below the level of HC are appointed by respective HC Collegium. SC and all HCs have their own separate collegium. Each collegium is composed of five people, including the Chief Justice of the relevant court who is also the head of collegium, and four senior most judges of that court. In this system of checks and balance, which ensures the independence of senior judiciary in India, the SC or HC collegium selects and recommends to Chief Justice of India (CJI) the names of judges to be appointed or transferred. CJI has the authority to reject or approve the recommended names. The names approved by the CJI are sent to the Government of India (GoI). GoI's role is restricted to undertaking character verification and national security clearance by the Intelligence Bureau (IB), or raising any objections and clarifications to CJI. If CJI ignores the objections by the GoI, and the same name is sent again to the GoI by the collegium after the re-approval by CJI, then GoI is legally bound to accept the name for the appointment or transfer. GoI sends the approved names to President of India who issues a warrant of appointment (authorisation). Finally, the GoI publishes a notice in weekly The Gazette of India. After this notification the order of appointment comes into legal effect.
![]() | Wikisource has original text related to this article: |