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Published online by Cambridge University Press: 10 September 2021
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.
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.
2 Sujit Choudhry, ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74 Indiana Law Journal 819; Jackson, Vicki C, Constitutional Engagement in a Transnational Era (Oxford University Press, Oxford, 2010)Google Scholar.
3 Anne-Marie Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191.
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).
5 Iyer, Venkat, ‘The Judiciary in Fiji: A Broken Reed?’ in Lee, HP and Pittard, Marilyn (eds), Asia-Pacific Judiciaries: Independence, Impartiality and Integrity (Cambridge University Press, Cambridge, 2017) 130 Google Scholar.
6 As at 2015, Tuvalu and Nauru had populations of approximately 10,000, Tonga 106,000, Kiribati 112,000, Samoa 193,000, Vanuatu 265,000, Solomon Islands 584,000 and Fiji 892,000. Papua New Guinea is the exception, with 7,619,000 people. See United Nations, Department of Economic and Social Affairs Population Division, World Population Prospects (United Nations, Geneva, 2015), available at <http://esa.um.org/unpd/wpp>.
7 About the Small Island Developing States (United Nations Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, 2015), available at <http://unohrlls.org/about-sids>; Francis X Hezel, Pacific Island Nations: How Viable are Their Economies? (East-West Center, Hawai’i, 2012) 3.
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.
9 Converging Currents: Custom and Human Rights in the Pacific (New Zealand Law Commission, Wellington, 2006); Jennifer Corrin, ‘Getting Down to Business: Developing the Underlying Law in Papua New Guinea’ (2014) 46 The Journal of Legal Pluralism and Unofficial Law 155; Asiata Va’ai, ‘The Idea of Law: A Pacific Perspective’ (1997) 21 Journal of Pacific Studies 225; Miranda Forsyth, A Bird That Flies with Two Wings: The Kastom and State Justice Systems in Vanuatu (ANU ePress, Canberra, 2009).
10 Schofield, Derek, ‘Maintaining Judicial Independence in a Small Jurisdiction’ in Hatchard, John and Slinn, Peter (eds), Parliamentary Supremacy and Judicial Independence: A Commonwealth Approach (Cavendish, New York, 1999) 73–74 Google Scholar; Veenendaal, Wouter, Politics and Democracy in Microstates (Routledge, London, 2015) 187 Google Scholar.
11 Susan Boyd, ‘Australian Judges at Work Internationally: Treason, Assassinations, Coups, Legitimacy of Government, Human Rights, Poverty and Development’ (2003) 77 Australian Law Journal 303, 306; Thuy Mellor and Jak Jabes, Governance in the Pacific: Focus for Action, 2005–2009 (Asian Development Bank, Manila, 2004) 37; Rose Lesley Kautoke, ‘The Jury System in Tonga’ (2009) 13 Journal of South Pacific Law 8, 18; John A Keniapisia, ‘Judges from Other Commonwealth Jurisdictions Serving in the High Court and Court of Appeal of Solomon Islands’ (Paper presented at the 20th Commonwealth Law Conference, Melbourne, 2017) 6.
12 Anna Dziedzic, ‘The Use of Foreign Judges on Courts of Constitutional Jurisdiction in Pacific Island States’ (PhD thesis, Melbourne Law School, Melbourne, 2019) Ch 2.
13 Ibid Ch 3.
14 Cheryl Saunders, ‘The Impact of Internationalisation on National Constitutions’ in Albert HY Chen (ed), Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, Cambridge, 2014); Mark Tushnet, ‘The Inevitable Globalization of Constitutional Law’ [2008] Virginia Journal of International Law 985.
15 Christine Bell, ‘What We Talk About When We Talk about International Constitutional Law’ [2014] Transnational Legal Theory 241, 255; Juliane Kokott, ‘From Reception and Transplantation to Convergence of Constitutional Models in the Age of Globalization’ in C Starck (ed), Constitutionalism, Universalism and Democracy: A Comparative Analysis (Nomos, Baden-Baden, 1999) Pt VI.
16 Maartje De Visser and Ngoc Son Bui, ‘Glocalised Constitution-Making in the Twenty-First Century: Evidence from Asia’ (2019) 8 Global Constitutionalism 297.
17 Bell (n 15) 266–79.
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.
21 Nauru, Western Samoa and the territory of New Guinea were included in the UN Trusteeship System: Andriy Y Melnyk, ‘United Nations Trusteeship System’ [2013] Max Planck Encyclopedia of Public International Law, available at <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e563?rskey=gs5iMV&result=1&prd=OPIL>.
22 Jennifer Corrin Care, ‘Cultures in Conflict: The Role of the Common Law in the South Pacific’ (2002) 6 Journal of South Pacific Law, available at <http://www.paclii.org/journals/fJSPL/vol06/2.shtml>.
23 Susan Farran, Human Rights in the South Pacific: Challenges and Changes (Routledge, London, 2009) 70. The Constitution of Tonga 1875 included a bill of rights, drawing on models from the United States and Hawai’i.
24 Banivanua-Mar, Tracey, Decolonisation and the Pacific: Indigenous Globalisation and the Ends of Empire (Cambridge University Press, Cambridge, 2016)CrossRefGoogle Scholar.
25 Yeh, Jiunn-rong and Chang, Wen-Chen, ‘The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions’ (2008) 27 Penn State International Law Review 89, 98Google Scholar.
27 Rosalind Dixon and Vicki Jackson, ‘Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts’ [2019] Columbia Journal of Transnational Law 283, 311–13.
28 ibid 354.
29 ibid 312.
30 For example, Groppi, Tania and Ponthoreau, Marie-Claire (eds), The Use of Foreign Precedents by Constitutional Judges (Hart, Oxford, 2013)Google Scholar.
31 David Law and Wen-Chen Chang, ‘The Limits of Global Judicial Dialogue’ (2011) 86 Washington Law Review 523, 558–62.
32 Goldsworthy, Jeffrey, ‘Constitutional Interpretation’ in Rosenfeld, Michel and Sajó, András (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, Oxford, 2012) 706–17Google Scholar.
33 In particular Groppi and Ponthoreau (n 30).
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.
39 Cheryl Saunders, ‘Judicial Engagement with Comparative Law’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011) 355–7.
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.
42 Bahamas, Barbados, Belize, Dominica, Eastern Caribbean Supreme Court, Grenada, Guyana, Jamaica, St Lucia, Trinidad and Tobago.
43 Cyprus, Hong Kong, Malaysia, Philippines, Sri Lanka.
44 Anthony Mason, ‘Sharing Expertise with the Developing World’ (2001) 26 Alternative Law Journal 7, 8.
45 Constitution of Fiji 1997 s 43(2); Constitution of Fiji 2013 s 7(1)(b); Constitution of Papua New Guinea 1975 s 39(3)(b)-(e); Constitution of Tuvalu 1986 s 15(5)(c).
46 It is important to note that this finding refers only to case law produced by international courts. A recent study suggests that some Pacific courts more frequently refer to international treaties, and in particular human rights treaties: Petra Butler, ‘A Survey of Human Rights Decisions in Fiji, Samoa, Tonga and Vanuatu’ in AH Angelo and Jennifer Corrin (eds), Small States: A Collection of Essays (Victoria University of Wellington, Wellington, 2019).
47 Matatumua v Medical Council [2000] WSSC 1, Samoa Party v Attorney General [2009] WSSC 23, Toailoa Law Office v Duffy [2005] WSSC 53 (Sapolu CJ); Jackson v Attorney General [2009] WSSC 73, Jackson v Attorney General [2009] WSSC 122 (Nelson J); Naba v State [2001] FJHC 127, Ali v State [2001] FJHC 169 (Prakash J). The three decisions authored by foreign judges were Naduaniwai v Commander, Republic of Fiji Military Forces [2004] FJHC 8, McCoskar v State [2005] FJHC 500 (Winter J); Republic of Fiji Military Forces v Qicatabua [2008] FJCA 119 (Scutt J).
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.
61 Boyd (n 11); Katie King, ‘Order from the Court: Judiciaries as a Bulwark Against Legislative Corruption in Vanuatu’ The Global Anticorruption Blog (2015), available at <http://globalanticorruptionblog.com/2015/12/18/order-from-the-court-judiciaries-as-a-bulwark-against-legislative-corruption-in-vanuatu>.
62 Sally Engle Merry, ‘From Law and Colonialism to Law and Globalization’ (2003) 28 Law & Social Inquiry 569.
63 Banivanua-Mar (n 24) Ch 5.
64 Sally Engle Merry, Colonizing Hawai’i: The Cultural Power of Law (Princeton University Press, Princeton, NJ, 2000) 47, 89.
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).
67 Maldonado, Daniel Bonilla, Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (Cambridge University Press, Cambridge, 2013) 23–24 CrossRefGoogle Scholar.
68 Sir John Muria, former Chief Justice of Solomon Islands, sat as a judge in Sierra Leone and Belize; Richard Lussick, a judge from Samoa, also served in Sierra Leone and the United Nations Appeals Tribunal.
69 William Twining, ‘Diffusion of Law: A Global Perspective’ (2004) 49 Journal of Legal Pluralism and Unofficial Law 1.
70 Slaughter (n 3); Muller, Sam, Richards, Sidney and Henderson, Laura (eds), Highest Courts and Globalisation (Hague Academic Press, The Hague, 2010)CrossRefGoogle Scholar.
71 Slaughter (n 3) 193.
72 Paul Kahn, ‘Independence and Responsibility in the Judicial Role’ in Irwin P Stotzky (ed), Transition to Democracy in Latin America: The Role of the Judiciary (Westview Press, Boulder, CO, 1993) 77.
73 Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 Yale Law Journal 1225; Dieter Grimm, Constitutionalism (Oxford University Press, Oxford, 2016) 209.
74 Cappelletti, Mauro, The Judicial Process in Comparative Perspective (Clarendon Press, Oxford, 1989) 5 Google Scholar; Goldsworthy (n 32) 689; Grimm (n 74) 205.
75 Barak, Aharon, ‘The Role of the Supreme Court in a Democracy’ in Andenæs, Mads Tønnesson, Lord Slynn of Hadley and Duncan Fairgrieve (eds), Judicial Review in International Perspective (Kluwer Law International, Amsterdam, 2000) 122–23, 128Google Scholar.
76 Immerwahr, Daniel, How to Hide an Empire: A Short History of the Greater United States (Bodley Head, London, 2019) Ch 18Google Scholar.
77 Gunter Frankenberg, ‘Constitutional Transfer: The IKEA Theory Revisited’ (2010) 8 International Journal of Constitutional Law 563, 571.
78 While not the only factor, the use of foreign judges is one reason why Pacific courts have been slow to develop a jurisprudence that draws on Indigenous custom: Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa, Law Reform in Plural Societies (Springer, New York, 2018) 78; Bernard Narokobi, Lo Bilong Yumi Yet: Law and Custom in Melanesia (Melanesian Institute for Pastoral and Socio-Economic Service University of the South Pacific, Goroka, 1989) 158–59; Falefatu M Sapolu, ‘Adjudicators in Western Samoa’ in Guy Powles and Mere Pulea (eds), Pacific Courts and Legal Systems (University of the South Pacific and Faculty of Law, Monash University, Melbourne, 1988) 61–62.
79 Tamanaha, Brian Z, ‘Battle Between Law and Society in Micronesia’ in Galligan, Dennis and Versteeg, Mila (eds), Social and Political Foundations of Constitutions (Cambridge University Press, Cambridge, 2013) 585Google Scholar.
80 For example, Albert HY Chen, ‘International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong’ 4 National Taiwan University Law Review 237; Constance Grewe and Michael Riegner, ‘Internationalized Constitutionalism in Ethnically Divided Societies: Bosnia-Herzegovina and Kosovo Compared’ (2011) 15 Max Planck Yearbook of United Nations Law 1.