Independent courts protect the public from arbitrary decisions and abuses of power by other branches of government.
In Norway, the Constitution sets a number of limits on what the Storting or the Government can decide, even if such decisions are based on the will of a majority of the public. Norway’s courts consist of the Supreme Court, courts of appeal, district courts and the land consolidation courts.
Supervising other branches of government
Courts can set aside a law passed by the Storting if they believe it violates the Constitution. For example, the law may violate one or more of the constitutional rights of citizens. It is the Supreme Court’s job to check that legislation passed by the Storting complies with the Constitution in the cases it hears. However, courts cannot themselves initiate cases in order to test laws. They can only do this when others bring a case before the courts.
Important questions such as this are decided by all the justices of the Supreme Court. The Supreme Court may decide in its resolution of the relevant case to set a law aside. This means that through their judicial activities courts can supervise the activities of the Storting as the legislative branch. The Supreme Court has only exercised this right a few times.
In individual cases, courts can also review decisions made by the Government or administrative bodies. In such cases, a court has to decide whether the body has acted within the limits of the law. Courts can also consider:
whether or not a decision has been reached based on facts and proper legal procedure
whether or not improper or grossly unreasonable discretion has been used
If a decision has such flaws, the courts can decide that the decision is invalid.
Appeal system and interpretation of the law
A decision can be changed based on an appeal. In criminal cases, the normal time limit for appeals is two weeks from the passing of a sentence, while in civil cases it is one month. A superior court cannot, on its own initiative, tell a subordinate court how to try an individual case. On the other hand, a superior court can decide that a subordinate court should retry a case if one party wishes to move forward with the case. In these circumstances, the subordinate court must follow the assessments on which the superior court has based its decision.
The Storting passes the laws the courts apply in the cases they hear. It is the courts that interpret the law and in the final instance determine how it should be understood. In a number of areas, what today is accepted as the applicable law was developed by the courts.
Judges and impartiality
External forces must not try and influence a court or judges to move in the direction of a particular outcome. A state based on the rule of law requires judges who are independent and impartial with respect to the parties and the interests they represent. The parties in a case can demand a judge withdraw from hearing a case. They can do so if the judge has links to the case, or parties to it, that could give rise to doubts about whether he or she will make an objective assessment. Judges also have an independent duty in every case they hear to check whether they should withdraw from hearing a case.
Although the independence of the courts in an individual case is assured by the Constitution, the courts are not independent of democratic developments in society. The Storting approves the rules concerning how courts are organised, including how many courts Norway should have, where they should be located, how many judges there should be and the procedures for appointing judges. These are areas where needs may change in tandem with social developments.
Cannot be dismissed
Like senior officials, judges appointed in line with Article 22 of the Constitution enjoy special job protection. They cannot be removed. This means that they cannot be dismissed or transferred against their will. They can only be dismissed after legal proceedings and a court judgement. Permanently appointed judges can be suspended, although such a decision must be made by the King in Council.
Like other state employees, permanently appointed judges can be punished for offences they commit while off duty. However, the question of whether charges will be brought against a judge for offences committed while on duty must be decided by the King in Council. Permanently appointed judges cannot be subject to disciplinary action based on the rules of the Civil Service Act either. Justices of the Supreme Court enjoy even stronger protection and can only be removed from their position by a judgement of the Court of Impeachment (the court that decides in criminal cases against members of the Government, the Storting or the Supreme Court). Other special rules also apply to justices of the Supreme Court.
The strong job protection judges enjoy is designed to ensure that they are not removed because the authorities and others disagree with unpopular decisions. The aim is to ensure that courts reach independent and impartial decisions.
Must retain the public’s trust
Judges’ decisions often have a big impact on the people they affect. One of the things a state based on the rule of law requires in order to work is for most people to respect the law and decisions made by courts. This means that people must trust the courts. It must not be possible to diminish the credibility of the courts through pressure or external influence.
For courts to be free and independent, they must have the professional and financial resources they need to perform their duties.
The length and cost of legal proceedings are important factors in whether the general public are able to have their cases decided by the courts. Short legal proceedings are in themselves important in ensuring the rule of law because as the saying rightly goes ‘justice delayed is justice denied’.
The growing role of international courts
International courts have become increasingly important in recent decades, particularly with respect to international human rights conventions. For example, the European Court of Human Rights in Strasbourg plays an important role in developing case law. If the European Court of Human Rights were to interpret conventions differently to the Supreme Court, the Supreme Court would have to take these decisions into account.