–Anine Kierulf, Post-Doctoral Researcher, Norwegian Centre for Human Rights, University of Oslo Law School
Today Norway made judicial review part of its written constitution. This amendment marks the finalization of a human rights reform of Norway’s 200 year-old constitution. While but a codification of a 150-yearlong court-made practice of review, it also adds democratic legitimacy to the separation of powers and to courts’ constitutional role.
Last year Norway celebrated the 200-year anniversary of its independence. Central to this celebration was a reform of the 1814 constitution (“NC”), whereby it was amended with a new human rights chapter. The NC already contained some rights provisions, against takings without due compensation, against retroactive legislation, as well as the principle of nulla poena sine lege, protection against house searches and of free speech. In the decades following WWII, the NC was amended to protect the right to work, a healthy environment and the indigenous Sami people.
Among the ten 2014 amendments are equal protection under the law, non-discrimination, feedom of movement, the right to privacy, to assembly, the rights of the child, the right to a fair trial and the right to education. And, as of today, also the right and duty of courts to exercise judicial review.
All the new 2014-rights already existed in Norway, either through customary law or through binding human rights treaties. A dualist system, the treaty rights had been incorporated into Norwegian law through the 1999 Human Rights Act, which also gave them preference before other Norwegian law in cases of conflict. Following the Human Rights Act, most cases concerning fundamental rights were adjudicated under conventions, particularly the European convention on Human Rights, rather than under the NC or other Norwegian laws.
The purpose of the 2014 reform was to “bring rights back home”; to strengthen the position of human rights in the Norwegian system, and to expose what were already seen to be a central basis for Norwegian democracy and rule of law also in the written constitution. Strengthening the constitutional rights-protection the reform has already done. The Supreme Court has used the new constitutional rights in several cases already. The new right of privacy provision has been used to hold police surveillance surplus data as inadmissible evidence, and the new rights of the child provision to invalidate an administrative deportation decision.
The new constitutional rights follow a dual structure already established in the NC, where actionable rights meant to be judicially enforceable are formulated as individual rights, whereas rights less clearly definable and enforceable (such as the right to work and to education) are formulated as political recommendations or activities incumbent upon state officials.
A constitutional human rights reform had been discussed in the legal community for decades without getting anywhere – law professors could never agree on the arguments (go figure). The idea gained political momentum during preparations for the 2014 anniversary. In June 2009 then parliamentary president Thorbjørn Jagland of the Norwegian Labor Party Arbeiderpartiet (since October 2009 the Secretary General of the Council of Europe) decided to set down a commission to prepare a human rights reform with the mandate of strengthening Norwegian human rights protection by considering a constitutionalization of rights.
Arbeiderpartiet has played a central role in the development of the Norwegian welfare state, reigning continuously for more than 20 years and heading the broad political consensus-based national rebuilding project following WWII. It was also in position several times from 1963 until 2013. Perhaps as a consequence of its historically strong political position, the party has not had much of a tradition promoting constitutional limits to majority decisions. Jagland’s party fellow Jens Stoltenberg (since 2014 Secretary General of NATO), prime minister from 2005-2013, was reportedly less enthusiastic about the reform committee, which nevertheless went on to present its proposal in 2012.
Following NC amendment procedures, amendments must be proposed prior to a parliamentary election, and voted on in its following term, then requiring a 2/3 majority to be approved. The process is meant to ensure a popular supermajority, and the possibility of direct popular input through the intermediary election.
The reform commission proposal was endorsed by most political parties before the 2013 election. Due to the foreseen possible disagreement on whether all economic, social and cultural rights were “true” human rights in line with the civil and political ones, the rights were split into two proposals, treating the different generations of rights respectively. Both proposals were, however, furthered by representatives for almost all parties. While serving the spirit of consensus, this procedure blurred the possibility for real popular input in the election (not that the constitutional amendments were what motivated most people’s votes, but still: What parties really supported what rights?)
Possibly, this could be guessed by looking to traditional party positions. Historically, they have roughly been that the conservative Høyre has represented the belief in courts and the rule of law against majority regulations, the agrarian Senterpartiet the value conservatism, including reluctance to change the constitution and Arbeiderpartiet the belief in political majority regulation state.
During the reform process, in the period after the 2013 election, these parties took on rather unpredictable roles on certain issues: Senterpartiet wanted to soften up the most traditional judicial safeguard from 1814, the ban on retroactive criminal laws, in order to facilitate prosecuting war criminals retroactively. Rule of law Høyre, surprisingly, in 2014 was reluctant to constitutionalize judicial review, but ended up supporting that provision And Arbeiderpartiet, a party traditionally little impressed with constitutional limits to majority rule – and particularly to such limits when enforced by courts, has stood out as the primary constitutional driving force throughout 2014. Now in 2015 also to have judicial review constitutionalized.
Outside the US, Norway is assumed to be the earliest country to have exercised judicial review. To varying degrees it has been continuously exercised since its first explicit case manifestation in 1866. The formulation of review powers indicates inspiration from Marbury v. Madison (1803), as Chief Justice Lasson wrote: “What has the Supreme Court to do, when presented at the same time with the Constitution and a private statute? It has then, as far as I know constitutional law, been generally agreed that as one cannot place it upon the courts to uphold both these laws at once, they must necessarily give preference to the Constitution….”
The Norwegian review tradition resembles the U.S. form of review more than the continental European one, as review is undertaken ex post; after a statute is enacted, and in concrete cases. Review cases are also tried by courts of general jurisdiction rather than specialized constitutional courts, and is strong form, in that courts have the last word (unless the parliament amends the constitution). Norwegian review has, however, been exercised quite deferentially, thus representing a form of “third way”: Sometimes serving as a correction to too strong or interfering political majorities, but mostly finding pragmatic solutions to constitutional challenges. While spurring political debate in historical periods with more review cases (upon challenges of the estate of high state officials in the late 1800s, during the emerging regulatory state in the early 1900s and following the international and European rights turn leading up to 2000), it has generally been accepted as clear constitutional customary law. Still, it has until now been but tacitly politically endorsed. With today’s constitutionalization, based on a vote of 150 to 17, the Norwegian parliament has confirmed not only its broad political support for human rights as made effective by judicial review, but also the constitutional nature of Norwegian democracy.
Suggested Citation: Anine Kierulf, Norway: Human Rights and Judicial Review Constitutionalized, Int’l J. Const. L. Blog, June 5, 2015, at: http://www.iconnectblog.com/2015/06/norway-human-rights-and-judicial-review-constitutionalized