Melbourne Law School - Theses
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ItemThe use of foreign judges on courts of constitutional jurisdiction in Pacific island states( 2018)The global norm is that, by law or by practice, the judges on courts of constitutional jurisdiction will be citizens of the state they serve. However, in the nine independent states of Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu, as in other parts of the world, foreign judges regularly sit on the highest domestic courts. This thesis examines the implications of the use of foreign judges for constitutional adjudication, judicial independence, and the role of judges and judiciaries in Pacific constitutional systems. The thesis presents the findings of an original empirical study of the numbers of foreign judges serving in the Pacific, their nationality and professional background, the processes by which they are recruited, and the terms and conditions of their service. It reveals a transnational movement of judges from common law jurisdictions to Pacific states, to engage in judicial service that is affected by the legal frameworks and practices of the Pacific states that use foreign judges and the policies of the external states and organisations that provide foreign judges. The thesis assesses the implications of the use of foreign judges for the way in which courts approach constitutional adjudication, judicial independence, and the representative qualities of judges and judiciaries in Pacific constitutional systems. First, I argue that foreign judges bring two dimensions of knowledge to the task of constitutional adjudication: knowledge reach that extends beyond the local; and a knowledge gap in relation to local context. I show that predominant features of constitutional adjudication across Pacific jurisdictions are, at least in part, explicable in light of the kinds of knowledge that foreign judges bring. Secondly, I explain how the presumption of distance implied by foreignness feeds into a perception that foreign judges are more impartial than local judges. I argue that this perception is overstated, while the risks to judicial independence resulting from the insecure tenure of foreign judges are not properly addressed. Thirdly, attention to the nationality of judges highlights the significance placed on judges’ allegiance to the state, responsibility to the people, and the expressive functions of the judiciary. I argue that the circumstances of foreign judging limit the extent to which foreign judges are understood to be authorised by, accountable to, speak for, or reflect the people or the state. Instead, greater emphasis is placed on the idea of foreign judges as members of a profession, with expertise, impartiality and a transnational commitment to law. This analysis of the practice of foreign judging and its implications provides the basis to assess the rationales for the use of foreign judges, to identify challenges that the practice poses to the legitimacy of Pacific judiciaries, and to propose good practice initiatives that might inform the laws and policies that regulate the use of foreign judges.