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Foreign judges of the Pacific as agents of global constitutionalism
Published online by Cambridge University Press: 10 September 2021
Abstract
Studies of global constitutionalism have focused on the transnational movement of constitutional law through the citation of foreign judgments. However, little attention has been paid to the movement of constitutional judges themselves. This article considers how the foreign judges who sit on courts of constitutional jurisdiction in Pacific island states can be understood as part of the phenomenon of global constitutionalism. It identifies three ways in which foreign judges can be agents of global constitutionalism: as mechanisms for the diffusion of constitutional ideas, as expressions of global constitutional values and as objects of transnational legal transfer. An empirical analysis comparing the citation practices of local and foreign judges in constitutional cases in nine Pacific states suggests that the use of foreign judges on constitutional courts does contribute to the international movement of constitutional ideas. However, a critical analysis of foreign judges as expressions and objects of global constitutionalism sheds light on a range of tensions in the role of constitutional judges and understandings of global constitutionalism.
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- © The Author(s), 2021. Published by Cambridge University Press
References
1 This article engages with the strand of global constitutionalism that examines the internationalization of constitutional law, and not the ways in which laws and institutions at international and regional levels have come to have constitutional features: Antje Wiener and others, ‘Global Constitutionalism: Human Rights, Democracy and the Rule of Law’ (2012) 1 Global Constitutionalism 1; Christine EJ Schwobel, ‘Situating the Debate on Global Constitutionalism’ (2010) 8 International Journal of Constitutional Law 611.
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4 In the years between 2010 and 2015, foreign judges sat on courts of constitutional jurisdiction in Andorra, the Bahamas, Belize, Bosnia Herzegovina, Botswana, East Timor, the Federated States of Micronesia, Fiji, the Gambia, Kiribati, Kosovo, Lesotho, Liechtenstein, the Marshall Islands, Monaco, Namibia, Nauru, Palau, Papua New Guinea, San Marino, Samoa, Seychelles, Solomon Islands, Swaziland, Tonga, Tuvalu and Vanuatu. Foreign judges also sit on courts of Hong Kong and Macau (autonomous regions of China).
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8 In total, seventeen courts across the nine states exercise constitutional jurisdiction: Fiji – High Court, Court of Appeal, Supreme Court; Kiribati, Solomon Islands and Tuvalu – High Court and Court of Appeal; Papua New Guinea – National Court and Supreme Court; Samoa, Tonga and Vanuatu – Supreme Court and Court of Appeal. In Nauru, the Supreme Court was the only court of constitutional jurisdiction until 2018, when the Nauruan Court of Appeal was established.
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18 Tonga was never formally colonised, but as a protectorate from 1900 to 1970, the British government assumed responsibility for defence, foreign affairs and some judicial proceedings. Its Constitution was made in 1875.
19 Constitution of Fiji 1970 (schedule to the Fiji Independence Order 1970 (Imp)); Constitution of Kiribati 1979 (schedule to the Kiribati Independence Order 1979 (Imp)); Constitution of Solomon Islands 1978 (schedule to the Solomon Islands Independence Order 1978 (Imp)); Constitution of Tuvalu 1978 (schedule to the Tuvalu Independence Order 1978 (Imp)).
20 Constitution of Nauru 1968; Constitution of Papua New Guinea 1975; Constitution of Samoa 1960; Constitution of Vanuatu 1980. The Constitution of Tonga, made in 1875, was influenced by the constitutions of Hawai’i, the United Kingdom and the United States.
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34 Cases were identified by a search of Pacific Legal Information Institute (‘Paclii’), an open-access online database of legal materials from Pacific jurisdictions, available at <http://www.paclii.org>. While not every decision of every court is provided to Paclii for publication, the database is reasonably representative.
35 By 1990, most states had established their own courts of appeal and discontinued appeals to the Privy Council. Kiribati and Tuvalu retain appeals to the Judicial Committee of the Privy Council, but no appeals have ever been taken.
36 Dziedzic (n 12) Appendix.
37 Including nine judgments in which no cases were cited.
38 Including nine judgments in which no cases were cited.
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40 Fiji, Kiribati, Papua New Guinea, Samoa, Solomon Islands, Tonga, Vanuatu.
41 Botswana, Gambia, Ghana, Lesotho, Malawi, Mauritius, Namibia, Nigeria, South Africa, Seychelles, Tanzania, Uganda, Zambia, Zimbabwe.
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48 For example, Fiji v Prasad [2001] FJCA 2, Taione v Tonga [2004] TOSC 47, Teonea v Pule o Kaupule of Nanumaga [2009] TVCA 2, State v Pickering [2001] FJHC 51. On the continuing influence of common law rights in Pacific jurisdictions see Farran (n 23) 77–83.
49 See, for example, the discussion of the citation of international law by local judges.
50 For example, Justice Cannings, a non-citizen judge of the PNG National and Supreme Courts cites many more cases from Papua New Guinea than foreign law.
51 Stephen Eliot Smith, ‘The Way We Do Things Back Home: Do Expatriate Judges Preferentially Cite the Jurisprudence of Their Home Countries?’ (2013) 13 Oxford University Commonwealth Law Journal 331, 340–41. Visiting foreign judges of appeal generally hand down judgment in the same sittings as the case was heard – that is, within a week or fortnight.
52 On the distinction between universalist and genealogical approaches, see Choudhry (n 2).
53 Anne Peters, ‘The Globalization of State Constitutions’ in Janne E Nijman and André Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (Oxford University Press, Oxford, 2007).
54 Mark Tushnet, ‘The Globalisation of Constitutional Law as a Weakly Neo-Liberal Project’ (2019) 8 Global Constitutionalism 29, 32.
55 Dixon and Jackson (n 27) 306–09.
56 See nn 10–11.
57 Dziedzic (n 12) Ch 6; Peter MacFarlane, ‘Some Challenges Facing Legal Strengthening Projects in Small Pacific Island States’ (2006) 4 Journal of Commonwealth Law and Legal Education 103.
58 See n 11.
60 Iyer (n 5) 128–29.
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63 Banivanua-Mar (n 24) Ch 5.
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65 See Dziedzic (n 12) Ch 6, where I critique the claim that the impartiality of local judges is necessarily compromised by their membership of a small community. I argue that claims of impartiality support the use of foreign judges only where foreign judges stand in for local judges who must recuse themselves from hearing a case or cases of a particular kind in circumstances where an alternative local judge is unavailable.
66 Justice French, former Chief Justice of Australia and Judge of the Supreme Court of Fiji, describes one case, concerning discretions of the Director of Public Prosecution, which subsequently has been cited by courts in Commonwealth countries, including the House of Lords: Robert French, ‘Cooperation and Convergence: Judiciaries and the Profession’ (Sydney, 21 April 2012).
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