Women Judges, Local Judges, Foreign Judges: Methods of Collecting and Analysing Data on Gender and Pacific Judiciaries

Anna Dziedzic

University of Hong Kong

Pacific island states are often left out of comparative studies of constitutions, courts and judges. The invitation to contribute a chapter to Melissa Crouch’s edited volume Women and the Judiciary in the Asia-Pacific provided a welcome opportunity to explore an issue of global importance as it arises in Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. 

My chapter examines the underrepresentation of women on Pacific courts. Its focus is on the importance of thin feminisation of Pacific judiciaries (a distinction Crouch draws in the introduction to the volume) and the need to increase the number of women judges. It outlines barriers to the appointment of women judges in the Pacific and the role of trailblazing ‘first’ women judges who serve as role models and whose presence disrupts gendered stereotypes that women are incapable or unauthorised to exercise public power.

These aspects of my chapter are summarised in a previous blog post. For this symposium, I reflect on methods for the collection and analysis of data on the composition of courts of constitutional jurisdiction and the contribution that studies of the Asia-Pacific make to global studies of women and judiciaries. 

While the field of comparative law often assumes information is all available online and as such easily accessible, collecting data on the composition of courts in Pacific island states is no easy task. Only some Pacific courts have dedicated websites, law reports or annual reports that list judges’ names. Data goes out of date and, despite all best efforts, some information gets overlooked. For example, since writing my chapter, Elisapeti Langi was appointed to Tonga’s Supreme Court, becoming the first woman judge in that country. And, while conducting research on the early history of Pacific courts for another project, I realised that amongst her many achievements, Dame Roma Mitchell served as a judge in Kiribati in the 1980s and should have been included in the chapter. Other women judges who served on early Pacific courts may come to light, and more will certainly be appointed in the future.

One of the many original contributions of the edited book is that it presents new empirical data from underrepresented jurisdictions in ways that are informed by the context of each jurisdiction, rather than driven by assumptions derived from other contexts. One feature of Pacific judiciaries that complicates the collection of data and distinguishes them from many others is the widespread use of foreign judges. This gives rise to a range of questions about the feminisation of judiciaries. Does the use of foreign judges provide greater access to women judges and so improve gender balance? Is localisation conducive to the feminisation of judiciaries? Does it matter if the first women judges – the trailblazers – are local judges or foreign judges? The Women in High Courts project, which has created a significant dataset on women judges on superior national courts, counts only citizen judges. What can a study that covers both groups tell us about feminisation of judiciaries?

Of the 30 women who served as judges in the Pacific from independence to the end of 2019, 18 (60%) were foreign. Some of these women judges visit the Pacific state periodically to serve on part-time courts of appeal. Others reside in the state, serving alongside local resident judges on the superior trial courts, usually for short terms of months or years.

When all judges, local and foreign, are counted, data from across the nine Pacific states shows that from 2000 to 2019, of the 302 judges serving in the region, 28 (9%) were women. In 2019, the most recent year on which data was collected, 124 judges served in the region, 14 (10%) of them women. 

In theory, the use of foreign judges gives Pacific states access to a wider and more diverse pool of candidates for judicial appointment. However, the data suggests that foreign judges have not really improved the gender balance of Pacific judiciaries. Of the 225 foreign judges who served on the superior courts of the Pacific from 2000 to 2019, only 16 (7%) were women.  Meanwhile, in the cohort of 92 local judges over the same period, 12 (13%) were women. Reasons for this include a lack of diversity in the cohorts from which foreign judges are typically recruited, the demands of travel and working away from home are likely to affect women differently to men, and gendered stereotypes about women and about judges that influence those responsible for judicial selection.  

Perhaps counterintuitively, the data indicates that localisation might be conducive to the greater representation of women. The National and Supreme Courts of Papua New Guinea and the Supreme Court of Samoa both have a high proportion of local judges and have, over the past decade, seen a steady increase in the number and proportion of women judges. In Papua New Guinea, the number of women judges increased from just one in 2010 to six in 2019 (16%). In August 2021, a further six women were appointed as acting judges, bringing the proportion of women on the court to 25%. In 2016, Samoa’s Supreme Court briefly reached gender parity, demonstrating that on small courts, the appointment of only a few full time, permanent women judges can make a dramatic difference to gender balance. 

That said, the first women judges in Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tuvalu and Vanuatu were all foreign. It may be that foreign women judges play a part in breaking the judicial glass ceiling as role models and signifiers of gender equality (see, for example, media on the appointment of Nigerian Nkemdilim Amelia Izuako in Solomon Islands). The presence of women judges – local or foreign – in highly visible positions of authority work to counter persistent gender stereotypes about women and judging. Women judges also bring their own, different, perspectives to the bench, which may be reflected in judicial decisions to address discriminatory laws  and practices. Foreign judges can bring comparative or expert knowledge of gender and law, demonstrated, for example, by Jocelynne Scutt’s reform of Fijian laws on arranged marriage, traced here by Jean Zorn. 

While many first judges are foreign, sustainable progress towards feminisation seems best served by the appointment of more local women judges. Local judges are appointed for longer terms and serve full time, meaning that local women judges will hear more cases and so have greater opportunity to shape adjudication and jurisprudence. Local judges come from the community and are more reflective of it, and so can speak more directly to the experiences of Pacific women as both law reformers and role models. 

It can be tempting to characterise data on courts in the Asia-Pacific and other underrepresented jurisdictions as a contribution only to the completeness of global studies in comparative constitutional law. However, collecting and understanding such data in its own context can expose the significance of choices about what data is collected – who is counted as a woman judge – and, as a result, generate new findings about the processes of judicial feminisation and the contributions of women judges. Gender is just one aspect of judicial identity. In the Pacific, the only woman judge might also be the only judge of a particular nationality, race, or religion. While the contributions of local and foreign judges differ, all can make a positive contribution to gender equality and the development of the law. 

Dr Anna Dziedzic is the Associate Director of the Centre for Comparative and Public Law at the University of Hong Kong. Her research is in the field of comparative constitutional law, with a particular focus on constitutional change and the role of judges and judiciaries

Suggested Citation: Anna Dziedzic, ‘Women Judges, Local Judges, Foreign Judges: Methods of Collecting and Analysing Data on Gender and Pacific Judiciaries’ IACL-AIDC Blog (9 November 2021) https://blog-iacl-aidc.org/women-judiciary/2021/11/9/women-judges-local-judges-foreign-judges-methods-of-collecting-and-analysing-data-on-gender-and-pacific-judiciaries.