The Judiciary - Denmark's weakest link
October 16, 2006A strong judiciary is universally recognised as the most vital check and balance on any government. The Danish constitution sets out right in § 3
Legislative authority shall be vested in the King and the Folketing conjointly. Executive authority shall be vested in the King. Judicial authority shall be vested in the courts of justice.
The 3 pillars all specified, although the King’s dual role is dodgy. There are 3 pillars mentioned.
In practice the judiciary as an independent pillar does not exist.
Firstly in § 59 (1):
The High Court of the Realm shall consist of up to fifteen of the senior ordinary members of the highest court of justice in the Realm (according to length of office) and an equal number of members elected for six years by the Folketing according to proportional representation. One or more substitutes shall be elected for each elected member. No member of the Folketing shall be elected a member of the High Court of the Realm, nor shall a member of the Folketing act as a member of the High Court of the Realm. Where, in a particular instance, some of the members of the highest court of justice in the Realm are prevented from taking part in the trial of a case, an equal number of the members of the High Court of the Realm last elected by the Folketing shall retire from their seats.
Thus the legislative branch vote in half the judges in for specific 6 year terms.
Secondly in §59 (4):
Rules for the High Court of the Realm shall be provided by statute.
and in § 61:
The exercise of judicial authority shall be governed only by statute. Extraordinary courts of justice with judicial authority shall not be established.
and § 62:
The administration of justice shall always remain independent of executive authority. Rules to this effect shall be laid down by statute.
The courts are under direct control of the legislature.
Besides the 15 members voted in by the legislature, the rest are appointed by the ministry of justice, which is part of the executive branch.
The end product of all this is that the high court don’t like to take on constitutional cases. As a matter of fact the only constitutional case they have had in the 157 years of the constitution was one in 1999 concerning a law specifically excluding a Maoist school from government funding.
This is just plain ridiculous, the fact that they have had one case in more than 150 years does not mean the Danish government consist of a bunch of saints, but that the constitution is weak and the courts even weaker. I would go as far as to say it should be a national outrage.
Comments:
Pelle, it's been an educational series. I draw a few conclusions:
- Running a government in absence of a sound constitution is tantamount to "whistling past the graveyard." I would guess that the strongest defense for the Danish constitution is, "It's worked well so far." This ignores the fact that constitutions are stressed during times of turmoil, and given the rising North African, er, I mean Muslim unrest, one might conceive of challenges in the near term.
- One assumes that the constitution of their own democracy is similar to that of other democracies. Thus, I can now see why many in Europe could believe that Bush has assumed near-dictatorial powers, altough I have no explanation why the radical left in the US believe the same thing. If one does not have a strong judiciary, one cannot conceive of the brakes that a balanced judiciary can put on governmental mischief (witness recent Supreme Court verdicts against the Bush administration).
- I wonder how your constitution compares to that of other European countries. Again, this may be important while Muslim unrest continues in the foreseeable future. We know from experience that the French constitution is about as stable as a bronco at a rodeo (gratuitous stab at French).
Posted by: Will Kamishlian at October 18, 2006 11:13 AM
Denmark's judicial system is consider to be one of the world's best. It is consider to be free of the most extreme forms of corruption. Danish democracy is rock solid. It is true that their is room for improvement, but I think your critisizms are going a bit too far. The U.S constitution is vague in certain places. Our constition doesn't mention any courts lower than the supreme court. That doesn't mean the is judicial system isn't any less independent than any other country.
A constitution should not contain every if, or, and but, but should just mention the basics. The United Kingdom gets by without a codified constitution. Israel gets by with a uncodified constituion inshrine in seprate documents that are entrenched and must be ammended by 61 members of the Knesset. New Zealand has a constitution similar to what the UK and Israel has. Sweden has a constitution enshrine in seprate documents that are entrenched.
All four countries are consider to be rock solid democracies although some may disagree about Israel.
A lot of third world countries have constitutions that are too long, cover every if, or, and but, and have (positive rights) guarantees that are unsustainble. Such things should not be in a constitution. If they only cover the most fundamental basics, they would be fine. I was happy to read that the Danish constition isn't too long compare to Brazil's constition or South Africa's or even India.
The Irish constitution is a good example of a constitution that is not too long or too short.
Posted by: Suaprazzodi at May 19, 2007 06:54 PM
