Foreign Judges in the Pacific

Anna Dziedzic is Global Academic Fellow, Law Faculty, University of Hong Kong, Hong Kong.

• 1. Global Exception, Regional Norm I. Foreign Judges and Courts of Constitutional Jurisdiction II. An Underexplored Phenomenon III. An Overlooked Region IV. Methodology, Approach and Outline of the Argument 2. The Foreign Judges of the Pacific I. Introduction II. Methodology A. Defining a ‘Foreign Judge’ B. Scope of the Empirical Study C. Techniques of Data Collection III. Number and Proportion of Foreign Judges IV. Different Kinds of Judicial Service V. Who Serves as a Foreign Judge in the Pacific? A. Nationality B. Professional Background C. Gender D. The Significance of Identity and Background VI. Localisation A. Localisation in Papua New GuineaB. Localisation in Fiji C. Contributing FactorsVII. Conclusion 3. The Regulation of Foreign Judges I. Introduction II. Selection and Appointment A. Formal Appointment Process B. Recruitment C. Qualifications and Selection Criteria D. Formalities and Restrictions in the Foreign Judge’s Home State III. Remuneration A. Rates and Sources of Remuneration B. Analysis and Implications IV. Tenure A. Constitutional and Statutory Provisions B. Relationship between Contractual Terms and Formal Appointment C. Duration of AppointmentsD. Analysis and Implications V. Removal A. Non-renewal of Contract B. Invitations to Sit on Court of Appeal Cease C. Visa Cancellation D. Analysis and Implications VI. Conduct of Hearings A. Language B. Time C. Place VII. Conclusion 4. The Significance of NationalityI. Introduction II. Nationality, Citizenship and Foreignness III. Knowledge IV. Membership V. Identity VI. Conclusion 5. Constitutional Adjudication I. Introduction II. Two Dimensions of Knowledge III. Transnational Knowledge Reach A. Shared Sources of Law B. Legal Borrowing IV. Local Knowledge Gaps A. Custom B. Constitutional Interpretation V. The Role of Local Judges in Bridging the National and Transnational VI. Conclusion 6. Judicial Impartiality and Independence I. Introduction II. Assessing Judicial Impartiality and Independence A. Components B. Purpose C. Standards III. Impartiality IV. Independence A. Short Renewable Appointments B. Arbitrary RemovalV. Conclusion 7. Representation I. Introduction II. How are Judges and Judiciaries Representative? III. Formal Representation: Authorisation and Accountability A. Selection and Appointment B. Oath of Office and Allegiance C. Accepting and Resigning Judicial Office D. Accountability IV. ‘Acting for’ Representation: What Guides Foreign Judges’ Decisions? V. Descriptive Representation: Foreign Judges and a Reflective Judiciary A. Public ConfidenceB. External Audiences and the Sovereignty Paradox C. Internal Audiences and Legal Pluralism D. Accounting for Public Confidence in Foreign Judges VI. Conclusion 8. A Transnational Profession and Practice I. Introduction II. Rationale A. Transition B. Capacity Building C. Reputation D. Impartiality E. The Means and the Ends of Foreign Judging III. Legitimacy A. The Service Conception of Authority B. Democratic Legitimacy C. Tethering the Legitimacy of the Foreign Judge IV. Good Practice Initiatives A. Localisation B. Regionalisation C. Stability D. Judicial Independence E. Exchange of Knowledge V. Global Significance A. Globalisation B. Internationalisation C. Comparative Insights

Anna Dziedzic’s well-researched study provides important insights not only into its express topic, described in its title, but also into broad questions about constitutional law and theory. Though the practice she analyzes is interesting but might seem of limited scope, in fact her arguments lead the reader to think more about what exactly constitutional interpretation is and how it relates to a nation’s people.