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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Judicial Systems in Federal Systems

Gabrielle Appleby, Erin F Delaney

Subject(s):
Separation of powers — Federal constitutions — Constitutional courts/supreme courts — Judiciary

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  Federalism, as AV Dicey explained, implies ‘the predominance of legalism or, in other words, a general willingness to yield to the authority of the law courts’ (Dicey 28). Yet aside from the perceived need for courts to ensure the smooth functioning of a federal system, there is little agreement on how to construct the individual components of federal judiciaries. At a high level of generality, however, it is possible to settle on certain key aspects of design, and this entry will address each in turn.

2.  First, federal theory has coalesced on the need for an institution—usually described as a supreme judicial arbiter—that can interpret the constitution, monitor and define the division of competences, and perhaps even ‘ensure the maintenance of common purposes’ (Kriek 87). The entry therefore begins by discussing the design of apex courts that exercise ultimate constitutional jurisdiction in federal systems, and the dual values of independence of the judiciary and representativeness that such courts must display.

3.  Second, the apex court must sit on top of a broader judicial system. Federal and constitutional theorists have been less forthcoming when addressing the question of how this system should be structured. Ivo Duchacek contended that having two sets of courts—one at the national level and one at that of the sub-national governments (component federal units)—was a hallmark of a federation (Duchacek 207–08). But, on the whole, broader considerations of federal judicial design have been overlooked. And, unsurprisingly, as more communities worldwide seek to institutionalize power-sharing through federal, or federal-type, arrangements, federal judicial systems, in turn, exhibit pragmatic and contextualized variation and complexity.

4.  Recent efforts to catalogue and describe these varying approaches have largely followed a basic dichotomy: the dual approach, noted by Duchacek above, in which there are separate and parallel judiciaries for national and sub-national governments, and the integrated approach, in which the national and sub-national governments operate within a single integrated judicial system. Rather than rigid definitions, duality and integration can be seen as distinct ends of a broad continuum, with greater or lesser integration existing between the two court systems in different federations. The entry explores this distinction and describes a number of federal systems with these approaches in mind.

5.  Third, and building on the dual-integrated foundation, the entry introduces an additional consideration of relevance to federal judicial design: the balance between robust judicial integrity, necessary for the rule of law, and the promotion of sub-national diversity within judicial institutions. A challenge in federal judicial systems is maintaining minimum standards of institutional integrity in the sub-national judiciaries without undermining unnecessarily and detrimentally a region’s autonomy over the design of its own judicial branch. This dimension, we argue, is an important but underdeveloped area of analysis in the design of federal judicial systems.

6.  Finally, a few words on the selection of systems considered in this entry (Hirschl). Operationally, federalism can be instantiated in myriad ways, and it is possible to get enmeshed in hundreds of different specifications and types of federal arrangements outlined by politicians and political scientists—all variations on the broad theme of shared power (Stewart). For the purposes of this entry, however, we view federalism as ‘an organizing concept’ for governmental regimes, marked by the ‘promotion of support for federations’ (Burgess (emphasis added)). And in defining federation, we adopt the orthodox view that certain institutions and constitutional arrangements are determinative of federation (Wheare; King) rather than choosing to identify federal states by evaluating their degree of centralization or of decentralization (the spectrum or continuum view of federalism (Kelsen; Livingston; Riker)). Thus, in our analysis of federal judicial systems below, we focus on accepted federations and do not include states with consociational regimes (such as Belgium or Lebanon) or devolving unitary states (such as the United Kingdom and Spain; unitary state). We do not purport to be comprehensive but identify a geographically representative sample of federations, including countries in North America, South America, Europe, Africa, and Asia.

7.  We do make one exception to our approach by including the European Union (‘EU’). The EU has defied classification, with scholars debating whether it is best understood as an international organization (Moravcsik), a ‘nascent political system’ (Hix and Lord), or a ‘new confederation’ (Burgess). Regardless of the EU’s broader classification, however, scholars agree that the most ‘federal’ aspect of the Union is the judiciary, topped by the Court of Justice of the European Union ((‘CJEU’); European Union, Court of Justice and General Court). Because the CJEU lacks true apex court power, it is difficult to classify the EU’s system as a federal judicial system. Nevertheless, the judicial architecture of the EU provides an unusual example of a partially integrated system that serves to complicate and enrich the dual-integrated dichotomy highlighted above.

8.  The final limiting factor in our selection process is a democratic one. Because of our focus on judicial integrity and the rule of law, we have confined our set to federations that are democratic or make a plausible claim to democracy as defined by the Democracy Index (compiled by the Economist Intelligence Unit). We thus include federal judicial systems for federations that are labelled as democratic, flawed democracies, or hybrid regimes, but none demarcated as authoritarian (therefore excluding Russia).

B.  Apex Courts

9.  As noted above, federal scholars agree that a supreme arbiter is necessary for enforcing the terms of a federal agreement, though not all conclude that role must be filled by a court (Livingston 10–11). In practice, however, most federations do rely on an apex court to monitor the division of competences between the federal centre and the constituent units (note that a scholarly debate internal to the United States asks whether federalism is better protected by political rather than judicial safeguards (Weschler; Choper; Kramer (2000)), but the judicial role in monitoring federalism has nevertheless remained vibrant (Kramer (2001)). In line with the American model, many federations have chosen apex courts that exercise general as well as constitutional jurisdiction (eg, in Canada, Australia, India, Malaysia, and Nigeria). However, drawing on the legal theories of Hans Kelsen, others have instituted specialized constitutional courts (eg, in Germany, Austria, and South Africa). Most apex courts also have the critical power of Kompetenz-Kompetenz, or the ability to determine the limits of their own jurisdiction. In dual systems, this authority serves to protect an apex court’s role as the ultimate arbiter of constitutional questions against challenges from the courts of the sub-national units (Delaney).

10.  Apex courts must be ‘impartial and independent’ in performing their function of monitoring the division of power in the federal system. Ronald Watts (159) has highlighted two critical requirements: independence from influence by governments at either the national or the sub-national level and representativeness of the court of both national and sub-national interests. These twin values have been sought through various mechanisms, predominantly in the appointment process.

11.  As a general virtue, judicial independence is critical in any constitutional regime, whether or not structured as a federal system, and usually maintained and ensured through tenure protections and limitations on grounds for removal. However, it takes on added import in a federal system. To perform the constitutional function of impartially determining disputes over federal competencies, the judiciary must be, and must be seen to be, independent from both the national and sub-national governments.

12.  Creating tension with the value of independence (Pitkin), representativeness requires some reflection of the underlying interests or constituencies in the federal system. Appointments-based approaches include, for example, in Australia, a statutory requirement that the federal executive consult with the state governments prior to making appointments to the High Court. In India and Malaysia, there is a constitutional requirement for the national government to consult with certain bodies prior to making appointments. In the United States, appointment to the Supreme Court requires the advice and consent of the Senate, a body that, at least in its initial incarnation, was seen as the protector of state interests through state representation. In Germany, the Constitutional Court is comprised of members appointed half by the Bundesrat—representing the Länder—and half by the Bundestag. In Nigeria, judicial appointments at both federal and state level are made on the recommendation of the National Judicial Council, a federal executive body comprising of judicial representatives from both the federal, state and territory court hierarchies. Some jurisdictions have gone further, explicitly addressing the question of representativeness. In Canada, not only does the federal executive consult with the provincial governments prior to appointment to the Supreme Court, but there is a statutory mandate that three of the nine judges of the Supreme Court be appointed from Quebec, reflecting that province’s unique judicial system. In addition, though by convention only, three come from Ontario, two from western Canada and one from the Atlantic Provinces.

C.  Dual and Integrated Judicial Systems

13.  In 2006, Cheryl Saunders characterized the structure of judicial systems in federations ‘broadly as dual or integrated,’ although, she explained, these categories should not be thought of as ‘watertight’ (Saunders 365–66). Saunders describes a dual system as one that ‘involves largely separate and parallel court hierarchies for each sphere of government, exercising the jurisdiction assigned to the respective spheres.’ That is, a dual system, in its ‘ideal’ form, will consist of one set of national courts, exercising jurisdiction conferred under the laws of the national government, as well as a set (or multiple sets) of sub-national courts, exercising jurisdiction under the laws of the sub-national government or governments. Truly dual systems will raise often-complex jurisdictional and conflict-of-laws questions. On the other hand, an integrated system, as Saunders explains, ‘involves a single court hierarchy, authority over which is likely to be divided between the national government and the constituent units’ although ‘may be assigned to the national government alone.’ An integrated system thus minimizes the jurisdictional disputes that arise in competing judicial systems, though it may not resolve political tensions between the national and sub-national governments (for example, regarding appointments). Of course, this idealized dichotomy does not always reflect the complexity of actual federal judicial systems; nevertheless, the dual-integrated distinction serves a useful function in identifying and evaluating system design.

14.  The dual-integrated distinction is perhaps best reflected in the debates over the construction of the first modern federation in the United States. In the 1787 Constitutional Convention at Philadelphia, delegates agreed on the need for ‘one supreme tribunal’ to enforce, among other things, the uniformity of federal law (Hamilton). But what inferior courts would support the Supreme Court in the exercise of the judicial power? Newly created federal courts operating alongside the preexisting courts in the states (thus creating a dual system)? Or the preexisting courts in the states, with new federal jurisdiction (adopting an integrated system)? After much debate, the framers of the United States Constitution could not decide the issue; in phrasing known as the ‘Madisonian Compromise’, they left it to the first Congress to ‘from time to time ordain and establish’ inferior courts (United States Constitution, Art. III). In the Judiciary Act of 1789, Congress did create a separate system of federal courts with exclusive jurisdiction over some claims, thus creating a clearly demarcated dual system. But, consistent with the supremacy clause of the Constitution, Congress also allowed for integration, permitting many federal claims to be heard by the state courts, thus commandeering the pre-existing state judicial systems for central purposes, albeit with a mechanism of appellate review by the Supreme Court.

15.  The hybrid 1789 solution to the question of judicial architecture demonstrates Saunders’s wisdom in refraining from viewing dual and integrated systems as strictly dichotomous. Certainly, at the extreme, there is a pole of duality, where the two systems are institutionally, jurisdictionally, and functionally distinct, and a pole of integration, where only one court system services the entire country, notwithstanding a federated system of constituent units with separate lawmaking capacities. But most systems fall between these end points. Some, for example, have combined features of the two: by integrating dual hierarchies through a final appellate court (appellate courts), or by creating small specialist sub-national courts in an otherwise integrated system.

16.  What follows is a comparative analysis of federal judicial systems ranged along a continuum from dualist to integrated. We have classified each jurisdiction under three broad groupings—more dualist, hybrid, and more integrated. Those jurisdictions that are more dualist are Argentina and Switzerland. Hybrid systems include Australia, Canada, the EU, Nigeria and the United States (for the United States, see above). And finally, Germany, India, Malaysia and South Africa exhibit features of more integrated systems. Even among systems that sit closely together on this continuum, there is substantial institutional variation. Ultimately, each system’s unique context—historical, political, cultural, and religious—creates distinctive jurisdictional characteristics, making the task of classification one of art rather than science.

1.  More Dualist

17.  Modelled loosely on the United States, Argentina has both a federal judiciary and separate, parallel provincial judicial systems. The Constitution establishes the Supreme Court and authorizes the creation of other federal courts. The Supreme Court has a narrow original jurisdiction and a wide appellate jurisdiction over the federal courts, with only limited appellate jurisdiction over provincial courts. The Constitution does require the provinces to provide for the ‘administrative of justice’ but leaves the design of provincial judicial systems wholly within the control of the individual provinces.

18.  All courts—federal and provincial—are able to interpret and apply the Constitution to cases properly under their jurisdiction and those constitutional matters are subject to Supreme Court review, but the provincial courts have no general federal question jurisdiction. Rather, jurisdiction over legislative codes (federal statutes and the principal source of law) is carefully apportioned between federal and provincial courts. The Supreme Court can hear extraordinary appeals from provincial court decisions concerning the legislative codes, under a weak standard of review (arbitrariness). In this area, therefore, the Supreme Court has only a limited ability to provide authoritative and conclusive interpretations, thus providing the potential for forum shopping.

19.  Switzerland has a dual system of courts with the cantons exercising a high level of autonomy over their judicial systems. There are federal courts of first instance with limited specialized jurisdiction—the Federal Criminal Court and the Federal Administrative Court—and each canton has its own system of courts. The apex court—the Supreme Court of Switzerland—cannot declare legislative acts of the Federal Council or Assembly constitutionally invalid—such matters are left to the citizens in referendum (direct democracy). It does interpret the Constitution in matters that come before it and is the final appellate court for matters of federal law, including human rights, from both cantonal and lower federal courts. The Supreme Court does not have jurisdiction to determine questions of cantonal law unconnected to a federal question, but it does have power to review cantonal policy and cantonal administration of federal laws. The Swiss cantons have authority to organize their individual judicial systems with no central control or input, and most cantons have a cantonal high court and administrative court, as well as lower level courts of first instance and various specialized courts.

2.  Hybrid Systems

20.  As a hybrid model, Australia can broadly be described as possessing a dual system of courts with a number of unique features of integration. The Constitution establishes the High Court and the federal Parliament is empowered to establish other federal courts invested with federal jurisdiction, which the Constitution defines. There now exists the Family Court, the Federal Court and the Federal Circuit Court. Through a constitutional implication designed to protect the independence of the federal judiciary, federal courts may only exercise federal judicial power, with limited exceptions. Federal court judges are given constitutional guarantees of tenure and remuneration. The Constitution explicitly retains the pre-existing state courts, and they exercise state judicial power as well as the federal judicial power that the federal Parliament may vest in them. The two self-governing internal territories have their own court hierarchies that largely mirror those of the states.

21.  The Australian federal judicial model exhibits a number of unique integrated characteristics that have dramatically altered its practice. The first is that the High Court (the final court of appeal since 1986 when all appeals to the Privy Council were finally abolished) is a general court of appeal from both federal and state courts. This has given rise to the principle that there is a single common law across Australia, emanating from and unified by the Court, and binding on all courts in the federation. The second is that the state courts are expressly integrated into the federal court system through the constitutional provision that confers on the federal Parliament power to vest state courts with federal jurisdiction. This is referred to in Australia as the ‘autochthonous expedient’, introduced by the framers as an efficient and economical way of ensuring that federal jurisdiction could be exercised immediately upon the creation of the federation.

22.  Canada also has a nominally dual system of courts in which the provincial and federal systems operate in parallel. However, the federal judicial system is modest, and there is shared federal-provincial control over its provincial court systems. The federal Constitution provides for the creation of a General Court of Appeal, the Supreme Court of Canada (Cour suprême du Canada), and also for the establishment of additional courts. Since 1949, following the abolition of appeals to the Privy Council, the Supreme Court has been the final court of appeal in Canada for both the provincial and federal court hierarchies. The Supreme Court’s position as a final appellate court means its rulings are generally binding across all Canadian judicial tiers, leading to the creation of uniform legal principles (with key exceptions relating to the distinct civil law system of Quebec in private law matters). In addition, the Supreme Court has the jurisdiction to hear references regarding the constitutional validity of federal or provincial legislation. A modest number of federal courts of both generalist and specialized jurisdiction—the Federal Court, the Federal Court of Appeal and the Tax Court of Canada—have been created to hear matters that fall exclusively within federal jurisdiction. They also hear substantial numbers of appeals from federal tribunals.

23.  The provinces retain their separate judiciaries, which in practice are divided between superior courts of inherent jurisdiction and lower courts of first instance, known as the ‘provincial courts’ and vested with statutory jurisdiction. Under the Constitution, the federal and provincial governments share control over the provinces’ superior courts. Judges in these courts are appointed by the federal executive government, and are given guarantees of remuneration and tenure under the Constitution. They cannot be removed except on address from both houses of the federal Parliament. Beyond this, the Constitution gives the provincial Parliaments the exclusive power to legislate over ‘the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts’.

24.  The judicial system of the EU is in many ways sui generis, but it has elements of both a dual and an integrated system. National systems operate in parallel to the CJEU, which adjudicates some European law matters of original jurisdiction. But the CJEU also serves as a quasi-apex court to the judicial systems of the Member States. The CJEU is comprised of the General Court and the Court of Justice. To the extent there is a separate ‘European’ hierarchy, it exists in the relationship between the General Court and the Court of Justice. For most issues, individuals, corporations, or Member States bring actions to annul legal acts taken by European institutions directly to the General Court in the first instance, with appellate review by the Court of Justice. The Court of Justice itself has original jurisdiction over certain annulment proceedings, as well as jurisdiction over actions against Member States for failure to fulfil their obligations.

25.  The greater proportion of the Court of Justice’s work, however, stems from its relationship to the national courts of the Member States, a structured connection which presents the more integrated aspects of the system. Ever since the Treaty of Rome, there has been a mechanism by which national courts in the Member States can ask the Court of Justice for a preliminary ruling on aspects of European law that are unclear or that may conflict with national law. This reference system provides a unique form of judicial review in which the Court of Justice determines the meaning of European law, but the national courts apply that law (and remedy violations) within their individual legal systems. Thus, although the procedure purports to place the Court of Justice at the pinnacle of the judicial architecture, the practical application leaves the national courts with great power. The European Court must work cooperatively with the national courts—if it alienates them, they may choose not to refer questions, thereby undermining the uniformity of European law and the role of the Court of Justice itself (Alter (1996); Alter (2009)). In short, the preliminary reference mechanism is not an appellate system, and therefore the CJEU is only the apex court in this hierarchy by leave of the national courts. It is this reliance on the national courts and a concomitant lack of Kompetenz-Kompetenz that calls into question whether the EU can be said to have a federal judicial system at all (Delaney).

26.  In Nigeria, the court system is dual at its lower levels, but unified through its apex: Both state and federal courts can exercise constitutional judicial review, with a final right of appeal to the Supreme Court of Nigeria. In the federal hierarchy, the Constitution establishes the Federal High Court, the Federal Court of Appeal and the Supreme Court. The Supreme Court exercises original jurisdiction in relation to disputes between governments of the federation, but otherwise exercises appellate jurisdiction from the Court of Appeal. The Court of Appeal has original jurisdiction over election petitions (petition) but otherwise exercises appellate jurisdiction from the federal High Court and state courts, including state Sharia and customary courts. The federal High Court exercises broad original jurisdiction in federal matters. Within the states, each has a High Court guaranteed by the Nigerian Constitution, which also allows states to adopt a Sharia Court of Appeal and a Customary Court of Appeal. For example, the country’s northern states, where there are Muslim majorities, have adopted Sharia courts in different forms. The jurisdiction of Sharia and customary courts is, generally, conferred by consent of the parties, that is, litigants choose to submit to the courts’ jurisdiction. States may also establish lower courts, the design of which has differed across the states. The Constitution establishes a similar court system for the Federal Capital Territory.

27.  Control is shared over the state and national court hierarchies: heads of state at the national and state level appoint judicial officers on the recommendation of the National Judicial Council. The Council is a constitutionally established federal executive body, composed of the Chief Justice of Nigeria, representatives from the federal, state and territory courts (including the Sharia and customary courts), representatives from the Nigerian Bar Association and two lay members. The Council makes recommendations on appointments, as well as having responsibility for disciplinary matters and removal and court budgets.

3.  More Integrated

28.  Germany, although it has both federal and state courts, presents a far more integrated judicial model; the two court systems operate sequentially, rather than in parallel. All cases begin in the first instance in the courts of the sub-national units, the Länder, and only proceed to federal court for appellate review. The Land courts can apply both Land and federal law and even have the power to find ultra vires administrative actions taken by the federal government. Länder have control over the organization of their judiciaries, though ‘basic guidelines’ can be found in federal law (Oeter 154). The federal courts serve as appellate courts, determining questions of law, to which litigants may appeal following a disappointing result in a Land court. Rather than courts of general jurisdiction, the federal courts are divided by substantive area and include the Federal Supreme Court (civil and criminal law), the Federal Administrative Court, the Federal Labour Court, the Federal Social Court, and the Federal Financial Court.

29.  Federal constitutional matters are addressed by a separate Federal Constitutional Court, of the Kelsenian model, to which direct applications can be made by the federal or a Land government, or by the federal Parliament. Should a constitutional matter arise in an ordinary court, a reference mechanism allows that court to refer the constitutional question to the Federal Constitutional Court. Land constitutional matters may be referred to separate Land Constitutional Courts (though not all Länder have such courts).

30.  In India, the Constitution creates a highly integrated and largely unified judicial system. The Supreme Court of India has exclusive jurisdiction to hear interstate disputes and original jurisdiction to hear matters relating to fundamental rights, and it may also issue advisory opinions. In addition, it provides appellate review of the decisions of the high courts. The high courts are granted territorial jurisdiction that mirrors existing state lines, and thus the high courts are known as the high courts of the states, although it is possible for a high court to serve two or more states, if authorized by the Union Parliament. The high courts have broad jurisdiction over state and federal issues, including rights claims. Judges of the high courts in each state are ostensibly appointed by the President after consultation with the state governor or governors, but in practice, the executive acquiesces to the decisions of the Supreme Court, which has asserted its control in this area. The Court may not only choose to elevate high court judges to the Supreme Court itself but may also transfer high court judges between or among high courts. Lower courts in India may be created by the executive of the state in consultation with the high court of the state, but the Supreme Court has set minimum working standards for all Indian courts with which these lower state courts must comply.

31.  In Malaysia, the Constitution establishes a largely integrated system of courts through which federal and state law is enforced. The Federal Court sits at the apex of the national system, with the Court of Appeal immediately below, and operates as an appellate court from the Court of Appeal. In addition, the Federal Court has an exclusive jurisdiction to determine issues arising between the Federation and a state or between states, a referral jurisdiction to determine constitutional matters arising in another court, and an advisory jurisdiction to determine constitutional matters referred to it by the Yang di Pertuan Agong (the King). Decisions of the Federal Court are binding on all other courts. The Court of Appeal has both civil and criminal appellate jurisdiction from the two federally controlled High Courts: the High Court in Malaya and the High Court in Sabah and Sarawak. No constitutional amendments can be made to the Federal Constitution that affect the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of its Judges without the concurrence of the Government of Sabah or Sarawak). The separate nature of the High Court in Sabah and Sarawak reflects the separate legal history, statute laws, legal system and legal profession in Sabah and Sarawak. Judges of the Federal Court, Court of Appeal and the two High Courts are provided with constitutional protections of tenure.

32.  There are some limited state courts that sit outside of and operate in parallel to this federal hierarchy, including the Syariah Courts that enforce Islamic Law, and the Native Courts (operating in Sabah and Sarawak only) that enforce native customary laws (the Penghulu’s Courts (Village Courts) were abolished on 1 March 2013). The Syariah Courts are guaranteed jurisdiction in the federal Constitution. The Syariah and Native courts are subject to appellate review by the relevant High Court.

33.  South Africa has a single, integrated judicial system under national control. The Constitution sets out five levels to the judicial hierarchy: the Constitutional Court, the Supreme Court of Appeal, the High Court (which is organized into provincial divisions), the Magistrates’ Courts and any other court established or recognized by an Act of Parliament. In addition, there are specialist courts including Special Income Tax Courts, Competition Appeal Courts, Labour Courts and Labour Appeal Courts and Land Claims Courts. Provinces have no jurisdiction over courts, although the Judicial Service Commission, responsible for appointing judges, must include the relevant provincial premier when making recommendations for appointments to provincial divisions of the High Court.

34.  The Constitutional Court has some exclusive jurisdiction, including jurisdiction over constitutional disputes between organs of state in the national or provincial sphere, the constitutionality of national or provincial bills at the request of the president or relevant provincial premier, the constitutionality of any amendment to the Constitution, the certification of constitutionality of provincial constitutions and the failure of Parliament or the President to fulfil a constitutional obligation. The Supreme Court of Appeal and High Court may also declare national and provincial acts or conduct of the President unconstitutional, but the Constitutional Court must confirm these orders before they have any force. The Supreme Court of Appeal operates as the final court of appeal in all matters except constitutional matters. Statutory law determines the jurisdiction of the High Court, Magistrates Courts and any other courts as are created by the national Parliament. The High Court’s jurisdiction is defined by provincial ‘divisions’, and the decisions of these divisions are binding on the Magistrates Courts within that area.

D.  Balancing Integrity and Diversity

35.  Federal judicial system design often reflects federalism’s embrace of local autonomy, diversity, innovation, and competition. However, these systems must also promote the shared commitments of the nation: to common values, including, for example, the primacy of the rule of law and individual liberty. Successfully negotiating the tensions between federalism on the one hand and judicial independence and rule-of-law values on the other is, therefore, another integral aspect of design. This dimension to system design can be observed in the structure and practice of many of the constitutional systems outlined above. For example, in India, the Supreme Court’s centralist approach and its effective control over key judicial appointments allow it to serve as the arbiter of minimum standards across lower state courts. And in Canada, while federal and provincial courts exist in a parallel structure, provincial control over superior courts is limited by standards—including guarantees of tenure—set in the Constitution. While the integrity-diversity balance has not yet been the subject of comprehensive comparative research, more detailed evidence from the United States and Australia provides a useful lens for viewing the challenge presented.

36.  The United States and Australia each initially designed its judicial federal system with an understanding that state courts would perform a role in the new federal system. But each constitutional text was silent as to how judicial integrity of state courts would be assured. In the United States, a partial solution developed through the strengthening of concurrent jurisdiction in federal courts, thus providing litigants with an alternative forum in which to resolve federal claims. In addition, through its incorporation doctrine, the Supreme Court of the United States created due process rights protections for individuals litigating state claims in state courts. This solution allowed litigants ex ante flexibility and choice in their judicial forum and an ex post remedy for particular egregious behaviour within a state court. This latter individual rights-based mechanism, however, has little purchase on systemic issues in state judiciaries, including the broader concerns presented by elected judges.

37.  Conversely, in Australia, the High Court has drawn on the Constitution’s express incorporation of state courts into the federal judicial system to develop a structural solution to monitoring state judicial integrity. Extrapolating from the protections of judicial independence that apply to federal courts in the federal constitution, the High Court has implied guarantees of judicial independence and integrity to the state courts. The emphasis on structural integrity and process means that challenges are brought to the design and process of State courts and legislation conferring jurisdiction, not to the way in which the individual has experienced the judicial system. This focus on the minimum institutional features of the courts rather than the injustices that might be inflicted against the individual litigant has also had important repercussions, most notably in limiting the autonomy of state Parliaments when dealing with their courts.

38.  The alternative approaches identifiable in Australia and the United States—structural versus rights-based—have different implications for the balance between judicial integrity and sub-national diversity. A partial trade-off may be required between state control over the institutional design of its judicial arm and guaranteeing individual litigants impartial tribunals adhering to minimum rule of law standards. In the American context, the balance struck may contribute to greater diversity in state judicial design but has undermined the Supreme Court’s ability to address systemic challenges to judicial independence. In Australia, a trend towards structural uniformity in judicial design may discourage beneficial experimentation and may fail to capture due process violations in individual cases.

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