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 __________________________________________________________________________ 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 Tor onto Press. The Forum of Federations acknowledges the financial support from the Government of Québec. 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 Financé par le Government gouvernement of Canada du Canada 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