© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Constitutional Transformations Development of Parliamentarian Government and Judicial Review by the Courts Ola Mestad Professor dr. juris Chair of the Norwegian Research Committee for the Constitution Bicentennial The Norwegian Constitution at 200 Years IV Târgovite, 1 – 4 August 2014

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Cronology of Constitutional Changes (1) 1814 Constitution adopted in May 1814 Constitution revised in November From the 1820’ies – Judicial review of legislation develops, especially in the 1860’ies 1820’ies onwards Judicial review of administrative decisions develops 1884 Impeachment Court case against the whole government 1884 First Parliament based government appointed by the King

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Cronology of Constitutional Changes (2) 1884 Impeachment Court case against the whole government 1884 First Parliament based government appointed by the King 1898 General male voting rights adopted –Through formal changes in the Constitution For all (men and women) in 1913

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Cronology of Constitutional Changes (3) 1905 Union with Sweden dissolved –Norwegian declaration 7 June –Referendum on declaration –Negotiations in September, fear of war –Swedish accept 23 September/26 October Reversal of the Constitution changes from November 1814 Republic or monarchy? New king elected –Haakon 7, the British Son in Law (Queen Maud cousin of Romanian Queen Marie) –Referendum on the choice of king

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Cronology of Constitutional Changes (4) 1913 General voting rights for all men and women German occupation –King and government in London –No meetings by the Storting before the peace in 1945 –German rule, Norwegian Quisling rule 1949 NATO membership 1972 Referendum on EU membership - No 1992 EEA membership 1994 Referendum on EU membership – No, again 2014 Human rights changes to the Constitution

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO What is Judicial Review? A Court may find a statute (a law) adopted by the Parliament and sanctioned by the king to be illegal The effect of the law is being set aside The basic idea is that the Constitution is superior law Very much used after World War II, very rare before Normally handled by special Constitutional Courts

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Norwegian Development of Judicial Review Development in the USA –Case of Marbury v. Madison 1803 Norwegian independent development –The Supreme Court found individuals’ rights to be protected by the Constitution Later, Norwegian development inspired by the USA from the 1860ies Only the USA and Norway developed this in the 19 th Century Why? States with special emphasis on the Constitution – based on popular sovereignty

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Most Important Judicial Review Provisions §§ 97 and 105 § 97 Retroactivity –What is really retroactivity? § 105 Expropriation –Are regulations really expropriations? The interpretation by the courts develops over time

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Modern Importance of Judicial Review Judicial review based on the Constitution And, with respect to administrative decisions, also on ordinary legislation This has now developed into broader judicial review –Based on international human rights conventions –Based on European Union legislation »Norway is bound through a special association agreement with the EU (EEA) –Very important and difficult development

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Two Modern Difficult Examples of Judicial Review In 2010, the majority of the Supreme Court held that the new legislation on taxation of ship owning companies was a violation of the constitutional prohibition on retroactive legislation –Constitution § 97 In 2008, the European Court of Human Rights found that Norway had violated the freedom of expression through its prohibition on political advertising on television –Previously, the ban had been accepted by the Norwegian Supreme Court, - Constitution § 100

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Development of Parliamentary System The principle: The government needs to have the support of the majority in parliament Or at least not have the parliament against it Can be organized in different ways In Norway it developed through practice between the state powers 1884 Impeachment case 2007 The principle written into the Constitution § 15

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Impeachment against the Selmer Government 1884 Impeachment process based on American Model Constitution § 87 Question of changes to the Constitution – Did the king have a veto right - § 110 The Storting changed the Constitution to allow ministers access to the Storting –To control them Government said that the King had a veto right – and he used it The Impeachment Court found that the government had violated the Constitution

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Parliamentarianism Appointment of Left government 1884 –Prime Minister Johan Sverdrup A constitutional principle of parliamentary government developed Without formal changes in the Constitution It changed the Constitution’s model for separation of powers How? It developed out of the leading position of the Parliament in the Constitution

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO General Voting Rights and Democracy General male voting rights adopted in 1898 –Through formal changes to the Constitution For all (men and women) in 1913 In 1814, the Constitution was said to be “democratic –monarchic” Was it democratic in 1884 after parliamentarianism was established? Was it democratic in 1913 after general voting rights were adopted?

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Some trends and challenges Popular sovereignty has strengthened itself over time and rearranged the separation of powers Now, most rules about the parliament are a protection of the minority in parliament because the government normally is based on a majority International integration has again weakened popular sovereignty and strengthened the government, the courts and international norm producers Protection of individuals’ rights has increased over the last years – there is a rights focus