1. Designing constitutions for foreign judges: The Pacific experience
Anna Dziedzic
PhD Candidate, Melbourne Law School
Constitution Transformation Network

2. Overview of research Why 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?

3. How many foreign judges and where are they from?
From , 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%

4. Ratio foreign judges to local judges 2000-2015
State
% Judges foreign
Nauru
100%
Tuvalu
Tonga
95%
Kiribati
94%
Samoa
87%
Vanuatu
85%
Fiji
83%
Solomon Islands
71%
Papua New Guinea
21%

5. Why use foreign judges?
Small size of population and local legal profession
Impartiality arising from distance from the local community (?)
Cost savings
To provide legal and comparative expertise

6. Legal frameworks
Qualifications
Appointment process
Tenure
Removal

7. Tenure provisions State Citizens Non citizens PNG 10 year fixed term
Up to 3 year fixed term
Fiji
Retirement age
Solomon Islands
Fixed term of years (if 70+)
Samoa SC
Can be fixed term of years
Samoa CA
Fixed term or particular matters
Kiribati
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

8. Rationales for short-term contracts for foreign judges
More 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 session

9. Foreign judges and custom
Is 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.