© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Constitutional Transformations Development of Parliamentarian Government and Judicial Review by the Courts

© DET JURIDISKE FAKULTET

UNIVERSITETET I OSLO

Constitutional Transformations

Development of Parliamentarian Government and Judicial Review by the

Courts

Ola MestadProfessor dr. juris

Chair of the Norwegian Research Committee for the Constitution Bicentennial

The Norwegian Constitution at 200 Years IVTârgoviște, 1 – 4 August 2014



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



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



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



Cronology of Constitutional Changes (4)• 1913 General voting rights for all men and women• 1940-1945 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



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



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 19th Century

• Why? States with special emphasis on the Constitution – based on popular sovereignty



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



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



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



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



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



Parliamentarianism• Appointment of Left government 1884

– Prime Minister Johan Sverdrup

• A constitutional principle of parliamentary government developed 1884-1905

• 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



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?



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 20-30 years – there is a rights focus

Documents

© DET JURIDISKE FAKULTET UNIVERSITETET I OSLO Constitutional Transformations Development of Parliamentarian Government and Judicial Review by the Courts