Author Interview: Foreign Judges in the Pacific

Anna Dziedzic

Melbourne Law School

Anna Dziedzic, a Postdoctoral Fellow in the ARC Laureate Program in Comparative Constitutional Law at Melbourne Law School, University of Melbourne, told us about her recently published book ‘Foreign Judges in the Pacific’.

Tell us a little bit about the book

The book explores the use of foreign judges on the domestic courts of nine Pacific island states: Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.

Pacific states have long recruited judges and lawyers from other countries to sit on their superior courts and courts of appeal. Since 2000, over three-quarters of the judges serving on these courts have been foreign judges.

As a result, foreign judges play a significant role in the development of the law and the operation of the courts. Foreign Judges in the Pacific draws on detailed empirical research, legal analysis and constitutional theory to trace the implications of the use of foreign judges in three aspects of judging: constitutional adjudication, judicial independence, and representation. It shows how foreign judges bring different dimensions of knowledge to bear on adjudication, face distinctive burdens on their independence, and hold only an attenuated connection to the state and its people. While constitutional judges in other contexts might be seen as representatives of the people or the state, foreign judges are understood as representatives of a transnational profession, characterised by a distinctive set of expertise, skills and values which are transferrable across national borders. 

What inspired you to take up this project? 

This book grew from my PhD research, which I completed at Melbourne Law School in 2019. The topic was inspired by the intersection of two interests – in Pacific legal systems and in comparative constitutional law – which until then had developed quite separately. 

When I talked about foreign judges in the Pacific, I was struck by how differently the idea was received. Many lawyers, academics and students I spoke with in the Pacific regarded foreign judging as unexceptional. At the same time, in comparative constitutional law circles, the notion was sometimes met with disbelief, but always with interest. I knew then I had an intriguing research topic, to explore whether there was any difference between a foreign judge and a local judge and, if so, where those differences lay. In the book, I conduct this inquiry by examining the significance of attributes associated with nationality – knowledge, membership and identity – to the role and function of judges exercising constitutional jurisdiction. 

Whose work was influential on you throughout the project?

One of my motivations for pursuing this project was to better understand the legal systems of Pacific island states, which combine Indigenous custom, colonial inheritances and practical responses to their island geography in brilliantly complex ways. I read and re-read the work of scholars who engage with this complexity: foremost amongst them were Papua New Guinean legal philosopher Bernard Narokobi, Sally Engle Merry’s study of law and colonialism in Hawaii and Brian Tamanaha’s Understanding Law in Micronesia.

The project was also inevitably shaped by the practice of comparative constitutional law at Melbourne Law School - and by my supervisors Cheryl Saunders and Adrienne Stone in particular – and the emphasis placed on the importance of understanding constitutions in their own context and reflecting the diversity of constitutional experience in comparative and theoretical work. 

What challenges did you face in writing the book? 

Scholarship on Pacific constitutions and legal systems is growing apace. Even so, obtaining information about the operation of courts and legal developments in Pacific island countries can be challenging. Finding out the number and proportion of foreign judges in each of the nine jurisdictions over the twenty years from 2000 to 2019 was quite an involved task. I conducted an audit of published judgments, cross-referenced to gazettes and annual reports, and collected biographical information on over 300 individual judges. Diving into the detail had its own rewards, however, as it yielded insights into the career trajectories of individual judges and the impact of historical events, which did away with the assumption that the practice of foreign judging was the same in each state and over time. Drawing out comparative insights while capturing the diversity of the laws and experiences in each of the nine Pacific states was the greatest challenge, but it is one that is familiar to all comparative constitutional scholars. 

What do you hope to see as the book’s contribution to academic discourse and constitutional or public law more broadly?

We are all aware of the criticism that some countries are overrepresented in the field of comparative constitutional studies. I hope that one of the book’s contributions is to demonstrate how the study of constitutional experiences beyond what Ran Hirschl calls the ‘usual suspects’ challenges assumptions and opens up enduring questions to new inquiry.   

In most countries, the judges who sit on courts of constitutional jurisdiction are citizens. This norm is reflected in the legal theoretical scholarship on judging, which tends to assume that judges are past, present and future members of the national community they serve. Thinking about judging in the Pacific, or in any of the thirty or so jurisdictions in which foreign judges serve on constitutional courts, tests our ‘received wisdom’ about what it is that judges do and should do. 

In the field of judicial studies, for example, scholars will be interested in the connections that can be drawn between the nationality of the judges sitting on the court and the role and reputation of the court in the wider constitutional system. Comparative constitutional scholars will find familiar themes explored through a different lens: from theories of constitutional interpretation; to ideas of judicial diversity and representativeness; and the internationalisation of constitutions and the intersections between transnational and domestic constitutional cultures. Legal theoretical scholars may be interested in thinking further about the significance of nationality to the functions and qualities of constitutional judges and the nature of judging itself, questions that have been posed in the United States context, for example, by Paul Kahn.  

What’s next?

My next project takes the comparative study of foreign judges global! With Simon Young from Hong Kong University, I am co-editing The Cambridge Handbook of Foreign Judges on Domestic Courts. The Handbook will include chapters written by judges and academics on foreign judges in over 30 jurisdictions in Asia, Africa, the Caribbean, Europe, the Middle East and the Pacific, as well as the use of foreign judges on particular kinds of courts, such as international commercial courts, international criminal courts, and anti-corruption mechanisms. This project builds on recent comparative studies of foreign judging – such as this article by Rosalind Dixon and Vicki Jackson – by providing new cases and new insights into the definition of a foreign judge, the rationales for their use, and the benefits and challenges of drawing judges from outside the jurisdiction.

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