When World War II was over in Europe in early May 1945, Germany was divided into four occupation zones. The three Western zones developed into the Federal Republic of Germany or West Germany, founded on May 23, 1949, with the proclamation of the new constitution (Basic Law). The Eastern zone, occupied by the Soviets, became the German Democratic Republic (GDR). The division of the country ended with unification on October 3, 1990, with the five newly rebuilt Eastern states (Länder) joining the Federal Republic thus becoming part of what had been the West German system. Germany today consists of 16 Länder that have their own constitutions, their own parliaments and governments and far-reaching rights in a system of concurrent legislation.

Germany's history is a key for understanding the powerful role of the Federal Constitutional Court (FCC). Created shortly after the end of the 12-year Nazi dictatorship, the new constitution was conceived in a way that would make the return of an unjust and dictatorial regime impossible. The Constitutional Court and its competencies, in particular its binding impact on German politics, was part of this vision of democracy (cf. Lübbe-Wolff 2015). The FCC took its seat in the city of Karlsruhe situated in the Southwest of Germany and at some distance to Bonn which served as provisional capital as long as Germany was divided. The idea of separating the judiciary and the other powers spatially, took up a tradition that was established at the time of the German Empire (Lamprecht 2011, 17).

The FCC (Bundesverfassungsgericht) was founded in 1951. By being both a court and a constitutional body the FCC is in a unique position. The court is one of five constitutional bodies mentioned in the Basic Law: the President (Bundespräsident); the Federal Government (Bundesregierung); the Federal Parliament (Bundestag); and the Federal Council (Bundesrat) which represents the Länder at the federal level. The FCC is an autonomous body. In contrast to German supreme courts at the state level, the FCC is not part of the portfolio of the Ministry of Justice and has its own budget.

INTRODUCTION

To provide a critical analysis of the relationship between the Supreme Court and the media in Ghana, it is vital to explore how the structural and institutional contexts within which they are embedded enable or constrain interaction and, hence, define the operational distance between these very important estates of the realm. In the immediately ensuing section, the chapter focuses on the organization of the Court, its remit, and the extent of its independence vis-à-vis other organs of state. This is followed by an analysis of the mechanics and contexts of communication flow and interaction between the two institutions.

STRUCTURE AND FUNCTIONS OF THE COURT

Ghana's judiciary is made up of the superior and lower courts of judicature. The former are constituted, in descending hierarchical order, by the Supreme Court, the Court of Appeal, the High Court, and the Regional Tribunals. The latter are comprised of Circuit Courts, District Courts, and such others as may be established by Parliament.

The Supreme Court is headed by the Chief Justice. Per Article 128 of the Constitution, s/he is supported by “not less than nine other Justices” (Government of Ghana 1992). There is, thus, no upper limit on the number of Justices. In the discharge of its judicial duties, the Court is enjoined to empanel not less than five members, except in instances where it is exercising judicial review of its own decisions, in which case not less than seven Justices are supposed to be empaneled.

The Court has exclusive original jurisdiction when it comes to questions that require interpretation of the Constitution and enforcement of its provisions; that challenge the constitutionality or otherwise of enactments; or that raise questions about whether Parliament or any other body or person has exceeded constitutional or legal authority with regard to those enactments (Date-Bah 2015a). The Court also has exclusive jurisdiction to determine whether the publication or disclosure of any official document should not be allowed for the sake of national security.

When the US Supreme Court handed down its decision on June 16, 2015, as to whether or not same sex marriage was a constitutional right, it almost acted as if no one really cared. There was no press conference at the Court where justices answered questions from reporters about why they had decided that way. Nor did the justices conduct individual interviews with reporters after the decision to explain its meaning or potential effects. They did not schedule a national tour to build public support for the decision.

Instead, Justice Kennedy calmly read a summary of the Court opinion in the courtroom while, one floor below, Public Information Office employees handed out copies of the decision to a gaggle of expectant reporters gathered in an office. After the distribution, the court's public information officer went back to her desk and the justices returned to their chambers and went about their work.

That does not mean the decision was ignored. Others filled the gap left by the justices. Interest group representatives immediately stepped up to microphones and television cameras set up by journalists outside the Court building or texted reporters at various media outlets across Washington with reaction to the decision. The president issued a statement, as did members of Congress. Yet, absent from the discussion were the nine justices of the US Supreme Court.

The relationship between justices and the journalists who cover their decisions would appear to be non-existent. The journalists cover the Court, but the justices appear oblivious to the imperatives and norms of journalism. Indeed, justices seem to lack many incentives to participate in a relationship with the press. Justices are appointed for life. They have no constituency. And they often issue counter-majoritarian decisions that incur public wrath. Why would either side interact with the other?

Yet, the relationship is more complex than that. The purpose of this chapter is to explain the relationship between the US Supreme Court and the press as a symbiotic one where both sides need each other to function. However, the dynamic nature of that relationship recently has produced a mutual acknowledgement of that symbiosis, which had not occurred previously.

INTRODUCTION

The Norwegian Supreme Court (Norges Høyesterett) has the potential to bore with a tremendously large policy-making auger. It sits at the apex of a hierarchically organized judicial system. It has appellate jurisdiction over all cases concerning civil, criminal, administrative, and constitutional law. Practiced by constitutional convention at least since the 1850s and finally formalized in Article 89 of the Constitution in 2015, the Court possesses the power of judicial review; thus, as the nation's highest court, it has the authority over the constitutionality of government orders and parliamentary statutes. And since 2008, the Court has had total discretion over the composition of its merits docket, reserving its finite decisional resources to the review of only those cases that would have the greatest consequence for policy and the development of the law. Little wonder, then, that legal historians have described Norway's Supreme Court as among Europe's most powerful benches.

Irregularly, the media has covered the appointments to the Supreme Court. And occasionally the Court's policy-making capacity has attracted media attention. With respect to its decisions, the Court has made efforts both to accommodate the Norwegian media's interests and to institutionalize its interactions with the press. These efforts have resulted in a policy toward the press of managed openness and transparency, where the Court responds to press inquiries in as timely and understandable a fashion as possible, while stopping short of issuing formalized press releases and Court statements that would provide comments on its judgments.

In this chapter we explore the Norwegian Supreme Court's interactions with the media. Our chapter takes the following form. First we offer a brief review of the Court's organization, power, and place in Norway's political system. Then we describe and discuss the Court's formal organ for press relations – the Supreme Court of Norway's Information Services. Here, we take up the High Court's various accommodations and services to the Norwegian media. In the fourth section, we turn to an examination of the nature of the relationship between the media and the Court and its members. Finally, we conclude in the final section with a consideration of possible future trends in the media's attention to and coverage of the Court.

INTRODUCTION

The UK Supreme Court (UKSC) opened on 1 October 2009 making it one of the world's newest Supreme Courts. It came into being under the Constitutional Reform Act 2005. In part the dynamic shaping the new institution was continuity. The new court took over the roles and responsibilities of the Appellate Committee of the House of Lords. The committee's role as the final court of appeal for all UK civil cases, and criminal cases from England, Wales and Northern Ireland transferred to the new court. Access to the new court would continue to be controlled via a permission to apply procedure. Appeals would continue to be limited to points of law of legal and constitutional importance. The judges, commonly known as Law Lords, who made up the Appellate Committee became the first ‘Justices’ of the UKSC. The senior Law Lord, Baron Phillips of Worth Matravers, became the UKSC's first President. Change was also an important driver behind the 2005 Act in general and the provisions establishing the UKSC in particular. A central goal of these reforms is the clearer separation of powers between the judiciary and the other branches of state. Its impact upon the UKSC is captured in a comment made in the court's first Business Plan (2009):

In part the visibility and clarity of the court's position within the state was been realized through the court's physical location. Located in Parliament Square it is close to other buildings housing key state institutions, but physically separate from them. Commenting on the court's new location Lord Hope, the first Deputy President of the UKSC explained the move from a committee room in Parliament to a dedicated building of its own in the following terms, ‘Public perception is everything’ (Hope 2010, 6). A different form of ‘public perception’ was a matter addressed during the House of Lords Select Committee on the Constitution (2007) investigation into the impact of the new separation of powers landscape introduced by the 2005 Act. Discussion focused on the importance of communication in general and media coverage in particular.

The traditional image of courts of last resort is one of dignity and aloofness. Courts typically go to great lengths to foster such an image. They operate under formal processes and rigid bureaucratic procedures. They appeal to higher authorities, particularly supreme governing documents, which suggest personal biases of judges are minimal or non-existent. The members of such courts often adopt formal attire, particularly robes, and hold themselves to certain canons of ethical behavior.

This image would appear to distance these judicial bodies from political players advocating transparency and informality, particularly the press. Indeed, journalists would seem to be the polar opposites of judges sitting on high courts. They are typically perceived as hostile to authority, disdainful of bureaucracies, and suspicious of formal legal language that tends to obscure more than explain.

As one insider at the US Supreme Court noted,

Yet, as this volume has demonstrated, justices and journalists in various national systems do possess such a relationship. Indeed, it has become a common element across the globe. Moreover, it is not insignificant. That relationship affects public understanding of judiciaries, relationships between judiciaries and other political players, as well as a judiciary's ability to function as an arbiter of the law.

The nature of that relationship is shaped by the Court's role in the political system in which it is situated. Where courts are perceived as less autonomous and more influenced by other political actors, they may face the need to assert their independence as actors. As Scribner points out, this is particularly acute in Latin American nations. But it also true elsewhere, such as in Indonesia and Korea.

INTRODUCTION

Much has been written about the performance of the Indonesian Constitutional Court since its inception in 2001. But a far less discussed and researched subject is the judicial communications aspect of the Court. This chapter explores how the Court communicates externally, particularly with the media and the public. The Indonesian Constitutional Court stands as a useful case study of the effects of judicial communications. The chapter relates how the media coverage accorded the Court shaped its communication strategies. While the Court was still in its infancy as an institution, the media portrayed the Court in negative ways. As a result, the Court, particularly through its Chief Justice sought to develop communication strategies intended to reshape the Court's media image.

The Indonesian Constitutional Court was born in 2001 after the long absence of an independent judiciary, in which there was no judicial review mechanism. Without any constitutional tradition of judicial review, many constitutional stakeholders knew little about how the newly established Court would function. Moreover, the Court was born in the midst of massive change in the Indonesian media industry. The rise of Indonesian media after the fall of the military government led by General Soeharto in 1998, however, posed a new challenge regarding the quality and durability of the new journalistic environment. With the birth of the Constitutional Court, Indonesian media confronted difficult challenges in helping the public understand and appreciate how this new institution worked.

As the public face of the Court, chief Justices have decided to reach out to the media and explain the Court decisions. The first Chief Justice, Jimly Asshiddiqie (2003–2008) and his successors Chief Justice Mohammad Mahfud (2008–2013) frequently spoke to the media explaining what the Court's decisions meant. They also defended the Court from criticism and pressed the Executive and Legislature to fulfill their constitutional duties.