The Pacific experience Anna Dziedzic PhD Candidate Melbourne Law School Constitution Transformation Network Overview of research Why are foreign judges How are they recruited and appointed and ID: 546813
Download Presentation The PPT/PDF document "Designing constitutions for foreign judg..." is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
Designing constitutions for foreign judges:The Pacific experience
Anna Dziedzic
PhD Candidate, Melbourne Law School
Constitution Transformation Network Slide2
Overview of researchWhy are foreign judges?
How
are they recruited and appointed, and
what are the terms of their service?
What
are the implications of the use of foreign
judges for the role of the judge and the role of the court?Slide3
How many foreign judges and where are they from?From 2000-2015, 180 foreign judges served on the higher courts in the nine Pacific states
New Zealand 32%
Australia 30%
Sri Lanka 22%
United Kingdom 8%
Other Pacific states 6%
African states 2%Slide4
Ratio foreign judges to local judges 2000-2015
State
% Judges foreign
Nauru
100%
Tuvalu
100%
Tonga
95%
Kiribati
94%
Samoa
87%
Vanuatu
85%
Fiji
83%
Solomon Islands
71%
Papua New Guinea
21%Slide5
Why use foreign judges?Small size of population and local legal professionImpartiality arising from distance from the local community (?)
Cost savings
To provide legal and comparative expertise Slide6
Legal frameworks
Qualifications
Appointment process
Tenure
Removal
Slide7
Tenure provisions
State
Citizens
Non citizens
PNG
10 year
fixed term
Up to 3 year fixed term
Fiji
Retirement
age
Up
to 3 year fixed term
Solomon IslandsRetirement ageFixed term of years (if 70+)Samoa SCRetirement ageCan be fixed term of years
Samoa
CA
Fixed term
or particular matters
Kiribati
Fixed term
or particular matters
Tuvalu
Life,
fixed term
or particular matters
Tonga
On
good
behaviour
or for fixed
term
or particular matters
Nauru
Retirement age (but note use of acting judges)
Vanuatu
Retirement age (but note use of acting judges)Slide8
Rationales for short-term contracts for foreign judgesMore attractive to foreign judges and funders
Opportunity to assess judge’s suitability
Localisation
Local judges are unavailable to hear a matter or to sit on a particular sessionSlide9
Foreign judges and customIs constitutional design is conditioned by the fact that the constitution will be interpreted and applied by foreign judges?
Two approaches:
Inclusion: Local customary values are included in the constitutional text as a guide to interpretation.
Exclusion: Customary institutions are left out of the constitutional text.