SUPREME COURTS IN CONTEXT
The Dialogue between Supreme Courts in a Post-territorial Age
1. I would like to deeply thank the University of Bergen for the invitation and for giving me the honor of participating in this commemoration of the two hundred years of the Norwegian Supreme Court.
This is naturally a remarkable event in the Norwegian context, but also a landmark for the whole European Judiciary.
As a judge, European citizen, and on behalf of the Portuguese Supreme Court, allow me to share the pride in the history, the prestige, the strength and the example the Supreme Court of Norway has given to all of us.
My deepest and most sincere congratulations to the Norwegian Supreme Court.
In this occasion, allow me to remember the judges who have contributed to the greatness of the court along two centuries.
2. In the past decades, especially in the past two decades, the increasing power of Courts has become a central question in our advanced democracies.
In this beginning of the 21st (twenty-first) century – the time for justice, as many political scientists say – the challenge for increasing the international role of the national Supreme Courts is, like at the national level, to strengthen the rule of law and to be guardians of the integrity of the general principles and the Constitutions.
The power of the courts – I can’t say the new power, but rather the new way of interpreting and exercising that power – has been praised or blamed as a revolutionary phenomenon - or in other words, is sometimes considered a judicial revolution.
We have to consider that, in today’s societies, displeased, with conflicts, fragmented by the insecurity and with the anguish which dominates the present and seems to delete the future, the judges are placed in the center of the democratic powers, as guardians of individual values, acting against the erosion of fundamental rights, against insecurity and uncertainty.
This new age is also a time of enormous complexity. Complexity that is revealed by the large number of judicial actors; by the systematic interdependence of functions and also by the shift in the nature of powers, from local powers, to international and supra-national legal orders with relevant transfers of sovereignty.
3. International law poses more challenges to national Courts; the ability to intervene also depends on the capacity of similar intervention by other national courts.
To gain inspiration in foreign law and case-law for solving domestic legal problems, as a method, is not a new phenomenon (Bobek).
Pre-national law was an open system, tolerant of the other and ready to take over and incorporate.
What is relatively new is the field, and the gradual reevaluation of the judicial function specially in the second half of the 20th century.
The global relationship of economic, social and cultural areas set up the circulation of goods, services, capital and people from one country to another.
These movements imply the circulation of judgements.
But this extension must include the ethical ambition of dissemination of fundamental rights.
In this context, the dialogue between courts yields hopes and concerns.
We have to place the dialogue in the right context, without concern, but with reasonable hope: to have arguments from foreign case-law, to discuss the effectiveness of different solutions, and permanent evaluation of legal systems as tools for decisions.
The role of the judiciary and the national courts at the international level has been however diminished relative to the decision-making function played by the new regulatory agencies, at the national and supra-national levels.
But this systematic interdependence of roles pushes forward the domestic courts to react against a kind of “judicial deficit”, as a consequence of the undermined consideration of the competence of domestic courts to review the acts of international regulatory agencies, enforced at the national level, and also, in some cases, the disregard of domestic courts by international courts.
In these circumstances, the intensification of the trans-judicial dialogue amongst national courts becomes more and more necessary, and the dialogue enables courts to share the interpretation of the same texts, and helps national courts to expand their role and to strengthen their independence.
4. In the face of the fragmentation of international law into a multitude of treaties and the increase of regulatory agencies, each national court, acting alone, can accomplish relatively little.
Facing the same problem, the judgments of several national courts will be too difficult to ignore - even by the international courts, which will have to consider the national courts’ jurisprudence.
The more the national courts engage in applying international law and more closed they are with respect to the argumentation they use, the more their jurisprudence will constrain the choices available to the international courts when those courts deal with similar issues.
The national courts send a strong signal to international bodies that they consider themselves as equal participants.
In the interpretation and application of international rules, the similar argumentation and case-law of the national courts has balanced an on-going process in which they have to be relatively equal partners.
Certainly, the ability to create a common inter-judicial approach on similar and shared matters among national courts will not be easy.
We know that judges in different positions look different and behave differently.
There are differences in the position, in the judicial culture, more or less openness regarding the role and the intensity in the consideration of international law and standards, and there are also different ways of reasoning.
However, in post-modern law, with several actors, with information available on-line, which is impossible to monitor, a labyrinthine and unstable law, which never finishes, changeable, with different sources (public; private; soft law), the role of the courts will become crucial, helping to establish a necessary ground for standards to achieve security for citizens, society, the economy and to safeguard the democratic principles for all.
5. We live in a time that is sometimes qualified as the beginning of the age of post-territorial democracies.
The judiciary in those new democracies - with new trans-national or international institutions – political and economics – embrace different challenges.
Domestic courts, specifically European domestic courts, know that the borders of the territory no longer become the borders for the national application of important sources of law.
We are in the midst of a radical change, and we are aware that the dialogue amongst high courts may be an effective mechanism of institutional approach to deal with the new challenges for the judiciary.
But we are also aware that dialogue can be a complex concept.
In this context, the dialogue aims to reach a common opinion, and to find the best solution to solve a problem. This kind of dialogue supposes equal partners, no hierarchy, persuasion and not coercion, and aims to achieve a concrete result.
The dialogue between courts will be a space of liberty only if there are truly equal partners; a real dialogue is not simple interaction, nor influence exerted by one court over other courts.
The complexity of the trans-national role of the national courts imposes different levels of cooperation.
In a post-territorial world, the use of foreign law has become increasingly mandatory.
We need to distinguish a mandatory dialogue from the voluntary and real dialogue between the courts.
6. In the field of the internationalization of law and judicial practice, we could identify four levels of engagement in trans-judicial dialogue between the Supreme Courts and other courts or institutions.
First, the so-called dialogue with international Courts.
In this field, I would like to share my concerns. In fact, maybe we don’t have a real dialogue between the supreme courts and the international courts, at least at the European level: CJEU (Court of Justice of the European Union) and ECHR (European Court of Human Rights).
Despite what is said and written, in practice, a real vertical relationship has been developed between those courts and national supreme courts.
In fact, the procedural forms of the so called dialogue, rather than placing the CJEU in a primus inter pares position, it places it in a hierarchical relationship model.
The mandatory case-law, and the thinner distinction in each case between interpretation and application of the law, weakens the role of national supreme courts as equal partners as it would be imposed in the context of a true dialogue.
So, the dialogue could only be implicit, informal and indirect.
But, like scholars in academic papers sometimes do, we have to think about the matter, even in informal and indirect ways, when the necessary bi-directional element for any type of dialogue is absent.
In fact, there is no mutual sharing of references; references are not made to the case law of the national courts.
As far as it concerns the dialogue between supreme courts and the ECHR, the approach would be understood in a different way because, in recent times, it has become perhaps not so easy as it was in the past.
It’s my feeling - and maybe I am wrong – that in recent cases, the trends to overcome the specific material competences under the Convention (ECHR), could affect the confidence between national courts and the ECHR, essential to the stability and effectiveness of the European system of judicial protection of human rights and fundamental freedoms.
I am thinking of some kind of “activism”, revealed in the self-consideration and action, in fact, as a fourth instance that bypasses - we have to say it in a friendly way - the conventional powers.
From my point of view, real confidence must work in two directions;
The case law of national courts seems to deserve less consideration – or is not taken into account enough - by international courts; so, the cooperation of equal partners becomes less than desirable.
For the national judge, it might be difficult to foresee the development of the law under the ECHR.
There is usually a long delay between the domestic court’s decision and the judgement from the ECHR.
I share the point of view that the Court has to be more cautious where it deviates from the facts found by the domestic courts – it’s the heart of the margin of appreciation, and the interpretation of the facts and domestic law is a matter for national courts.
Maybe we should talk to each other and work to achieve a new, or another, balance, in the criteria of proportionality.
7. The age of post-territorial democracy puts forward new challenges, due to the rise of new and strong executive powers, at the trans-national level, through the action of regulatory agencies enforced at the national level, but outside the domestic democratic and judicial processes.
This could be a field for new action of national judiciaries: we may think of indirect review options playing the role of guardians of the integrity of law and the constitution, even if it is only occasional and fragmented.
In the present difficult times, maybe the national courts have to play a more assertive position.
To face these challenges, the Supreme courts may - on the other hand – be linked in close and informal organisations, implement ways to share information, discuss common matters, achieve mutual confidence with openness and, on an informal basis, find solutions that would be as strong as they were extensive agreement.
Eyal Benvenisti considers that - and I quote - ”The inter-judicial coordination provides national courts with a strategy for protecting their own authority and sustaining their procedural rules.
The many procedural, institutional and normative similarities, the judicial practice and the exchange of information between judges by networks facilitate the coordination and the reliance on some or similar legal sources, and provide a common conceptual vocabulary, identity of language and grammar.”
Finally, the trans-judicial dialogue may be built on the mutual recognition by argumentative approaches, especially, the knowledge or, if it is the case, attention to (and quotation) of case law, and, in this way, making possible more effective and convincing decisions at the domestic and also trans-national levels.
8. The highest courts from different countries interact with each other – reading, using and quoting case law.
They must have interaction, but also a dialogue of a more general nature.
If countries belong to the same group (legal family; language), the communication between their highest courts forms part of a formal or informal network.
Such interaction may take place in various forms: direct trans-national collaboration, communication between judges, mutual information on legislation and case law, mutual knowledge of presidents and judges, colloquia for discussion of matters of common interest, exchange of judges, and common access to databases.
The Network of Presidents of the EU supreme courts became, in the last decade, a common space to interact in informal ways, and also a way for aiding the judicial action in an international context.
My Court addresses the increasing international role when it seems to be necessary to deal with the national and international judicial matters on the limits of its own competences.
The expansion of the trans-national relationships involving people and personal rights, corporations and economic matters has a different dimension which depends a lot on the insertion in spaces with their own rules, on geography and economy.
The most notable is the (E.U.) European Union.
In this context, the Portuguese supreme court, like other supreme courts, directly applies the international law considered as adequate in a one-tier system, uses the procedural means laid down by the E.U. system, to the extent deemed necessary, and exercises the powers resulting from the international sharing of competences.
It also applies the law laid down by the conflict rules of public international law or rules of jurisdiction under the European Union (Brussels Regulation, Rome, The Hague Convention and so on).
On the other hand, when deemed necessary, my Court applies the European Convention on Human Rights and the case law of the European Court of Human Rights, based on its interpretation of the principles of subsidiarity, margin of appreciation and proportionality.
The Portuguese Supreme Court is open, by tradition, to legal and judicial diversity, using the jurisprudence of other supreme courts and foreign doctrine to support the arguments with a view to ensure a methodological approach to the case.
9. I conclude with the judge of the Supreme Court of Norway Arnfinn Bardsen when, in comments on Lillo Stenberg case, he said that: “European integration brings the highest Court in Europe together in a common legal universe, enabling an interchange of experiences and practices that, in the long run, cannot but inspire”.
I do thank you so much for your kind attention.
António Henriques Gaspar
Bergen, 21st September 2015