Melbourne Law School
In present conditions of globalisation, there is much discussion about the transnational movement of constitutional laws, texts and concepts. Often overlooked, however, is the movement of judges across national borders. This may be because it is generally assumed that the judges sitting on a state’s courts – especially courts of constitutional jurisdiction – will be citizens of that state. This assumption is reinforced by a review of national laws, which in over 100 countries expressly require judges to be citizens. However, in over 30 countries across the world, mapped below, foreign judges sit on the highest courts and determine constitutional matters.
This map is available to access here.
Why do some courts of constitutional jurisdiction include foreign judges?
Reasons for the use of foreign judges on constitutional courts vary. In some circumstances, foreign judges are appointed to a constitutional court in order to counterbalance entrenched divisions within the national polity. The appointment of foreign judges to the Constitutional Court of Bosnia Herzegovina is an example. Another reason arises where there are insufficient numbers of qualified local people who are able and willing to accept appointment as judges. This is the case in many small states in the Pacific and Caribbean, as well as states in the process of (re)building judicial institutions following conflict or colonisation. Foreign judges might also be appointed to enhance the expertise and prestige of the courts. The inclusion of foreign judges on the Hong Kong Court of Final Appeal might be understood in this sense. As a result of this range of rationales, foreign judging features in a variety of constitutional contexts.
Mapping the constitutional courts on which foreign judges sit also suggests the potential influences of legal tradition and historical connections on the practice. The majority of countries which use foreign judges are members of the Commonwealth. One reason for this might be the influence of a shared colonial and postcolonial history, and in particular the use of the Privy Council as a distant court of final appeal. Another, tentative, hypothesis is that there is perhaps something about common law legal systems, in contrast to civil law systems, which make them relatively more open to the use of foreign judges. These influences should not, however, be over-emphasised as causal factors. Enough counter examples exist to suggest that the receptiveness of some states to foreign judging is a much more complicated story.
The significance of nationality to judging
Does the nationality of a judge matter? And if so, in what ways might the position of a foreign judge differ to that of a local judge? The answers are likely to depend on understandings of citizenship on the one hand, and conceptions of the role of the judge on the other.
There are (at least) three ways in which nationality might be thought to affect the qualities, expectations and practices of a constitutional judge, which in turn suggest points of differences between foreign and local judges.
One relates to the kinds of knowledge about the law and the wider community that judges are expected to have. As a generalisation, foreign judges are unlikely to have the same depth of knowledge about the national law and context as local judges. They are, however, in a position to bring comparative knowledge of their own, and perhaps other, jurisdictions to bear on constitutional adjudication. Whether these dimensions of knowledge are regarded as significant in a particular context is likely to depend on the extent to which constitutional law is understood to be distinctively local or, alternatively, converging in the wake of various historical and contemporary global influences.
Another point of difference relates to perceptions of the appropriate distance between judges and the judiciary on the one hand, and the state and community on the other. All judges take an oath of allegiance and are duty bound to uphold the constitution and laws of the state in which they serve. However, unlike national judges, foreign judges are not members of ‘the people’. They do not have to live in the community and be subject to the laws that they have a hand in shaping. Thus, while foreign judges might act in the best interests of the community they serve, they are not invested in the fate of the community and the constitution in the same way as national judges. Arguments of this kind might justify the requirement that judges be citizens. In some contexts, however, foreign judges are valued because of their distance from local politics and society, and are perceived to be impartial and objective.
Thirdly, the preference for national judges is sometimes framed around sovereignty. There is a sense that in a democratic state in which the constitution is understood to be made by and for the people, the institutions of the state should also be ‘of the people’. There are of course many ways in which courts and judges can be connected to the people, but the composition of the court seems to be a particularly powerful expression of sovereignty. However, this might be susceptible to change in conditions of globalisation. Anne Marie Slaughter, in her work on judicial globalisation identifies a sense in which judges are engaged in a common judicial enterprise, and as such have a professional responsibility to the function and role of the judge, in addition to their responsibilities to a national polity.
The significance of these links between judging and nationality - knowledge, membership and sovereignty - vary across constitutional systems, and underlie the differences between states which require judges to be citizens and those which are more open to foreign judges.
Not all states that use foreign judges do so in the same way. Some constitutional texts formally distinguish between local and foreign judges. A constitution might specify a different procedure for the selection and appointment of foreign and local judges (see, eg Constitution of Bosnia Herzegovina art VI(1)(a)). Some distinguish between citizen and non-citizen judges for the purposes of tenure (see eg Constitution of Fiji 2013 s 110 which guarantees tenure until retirement for citizens but limits the term of appointment of foreign judges to three years). The law might specify a limit to the proportion of foreign judges on a bench or the judiciary as a whole (eg Hong Kong Court of Final Appeal Ordinance c 484 (1995) s 5(5); Constitution of Liechtenstein art 105). Laws might also provide that all judges must be citizens, but permit foreign judging as a temporary or exceptional measure (eg Timor Leste Statute of Judicial Magistrates 2002 s 111(2); Kosovo Law on the Constitutional Court of the Republic of Kosovo (No. 03/L-121) ss 4(1), 55). Other constitutions are silent on such issues and make no express distinction between local and foreign judges.
The phenomenon of foreign judging has been examined within specific countries and regions (e.g. Hong Kong, Bosnia, Lesotho, and the Pacific) and is beginning to receive the attention of comparative constitutional scholars. While the use of foreign judges represents a point of commonality between some national judiciaries, the diversity of constitutional experience within this category merits further exploration. The reasons for the different approaches are likely to relate to both the rationale for using foreign judges and to deeper understandings of the significance of nationality to judging that I have outlined here in tentative and general terms. In this way, the value of comparison is not only to explore the practice of foreign judging as a feature of constitutional systems across the globe, but also to examine widespread but often unarticulated assumptions about the significance of nationality to the functions and qualities of constitutional judges.
Anna Dziedzic is a PhD Candidate at Melbourne Law School and Co-Convenor of the Constitution Transformation Network. Her thesis examines the use of foreign judges on courts of constitutional jurisdiction in the Pacific.