Foreign judges often face a challenge when interpreting a constitution in ways that respond to local context. That challenge can be overcome if due diligence is exercised by paying close attention to how the constitution is inherently intertwined with the customs of the land. Ultimately there is an expectation that precedents established by foreign judges should reflect the values of the Indigenous population in shaping the legal system. In many instances in Micronesia foreign judges did the opposite: they often brought with them assumptions that were contradictory to customary principles, and in the process contributed to the devaluation of customary practices as enshrined in the Constitution. The case of the Federated States of Micronesia illustrates the erosion of customary values as American judges asserted control over the legal system by importing American jurisprudential practices and treating customary law as inferior to black letter law. Today Micronesian judges are working towards striking the balance between black letter and Indigenous customary legal principles in adherence to Micronesia’s Constitution.

Although Macau became a Special Administrative Region of the People’s Republic of China in 1999, foreign judges from Portugal have continued to be appointed to Macau’s courts. Macau is remarkable for the way that the institution of foreign judges is emblematically inscribed in the Basic Law, and in this context, foreign judges have a dual value, not only bringing their individual expertise and judicial values to the Macau judiciary, but also importing the characteristics and values of the legal system in which they originate. This dual role helps to fulfil the ‘One Country, Two Systems’ policy and uphold its corollaries, including the continuance of a legal system that is different from that in the Mainland, based on the principles of judicial independence and impartiality. The chapter highlights two worrying trends: the declining number and proportion of foreign judges appointed to Macau’s courts, and the exclusion of foreign judges from cases involving ‘national security’ issues.

This chapter outlines the reasons behind the appointment of foreign judges in the Commonwealth. It discusses the ways in which foreign judges are appointed to national courts in overseas dependent territories and in Commonwealth member states. It also discusses how foreign judges are appointed to ad hoc tribunals or on temporary assignments for sensitive political cases or impeachment processes. The chapter draws attention to some of the challenges and pitfalls encountered as well as the advantages in using foreign judges in national courts around the Commonwealth to enrich legal and judicial developments across the Commonwealth.

The Basic Law of the Hong Kong Special Administrative Region allows judges from other common law jurisdictions to sit on the Court of Final Appeal. Since 1997, one overseas non-permanent judge has sat on the bench of the Court of Final Appeal in nearly all substantive appeals. The chapter provides an overview of the identities of the overseas non-permanent judges over the Court’s 24-year history and outlines how the working practices of the Court have developed to support their involvement in Hong Kong’s judiciary. An assessment of the benefits that overseas non-permanent judges provide the Court of Final Appeal and the contributions they have made to the development of the law and legal system of Hong Kong show that the use of foreign judges in Hong Kong has been highly successful.

The members of the Singapore International Commercial Court (‘SICC’) include both Singaporean and non-Singaporean ‘international’ judges. The SICC is domestic, in that it is established under Singaporean law as a division of the Singapore Court system, and international in the sense that it hears international commercial disputes, including cases which have no connection with Singapore apart from a choice of court agreement designating the SICC as the forum for dispute resolution. This chapter identifies the rationales for the appointment of international judges to the SICC, contrasting the SICC with domestic courts which use foreign judges and with nine other international commercial courts around the world. It shows how the different objectives and target markets of international commercial courts, as well as the constitutional laws and traditions of the host state, influence the decision whether or not to appoint foreign judges. The chapter suggests that international commercial dispute resolution today favours the appointment of specialist foreign judges to commercial courts having similar aspirations as the SICC.

The presence of foreign judges on the Constitutional Courts of Bosnia-Herzegovina and Kosovo is due to the existence of ethnic conflicts and societal divisions which resulted in the internationalisation of their constitutions and centralised constitutional courts. This chapter examines whether and to what extent the presence of foreign judges on these constitutional courts has met the rationale of helping to end or pacify the ethnic conflicts. It compares the influence of foreign judges on adjudication and constitutional law, and their contribution to the legitimacy of the courts in the eyes of the public and political actors. Differences between the working conditions of each court, degree of judicial activism, and the distribution of legitimacy between the court itself and the foreign judges, arise in each context, but the analysis ultimately suggests that the appointment of foreign judges to resolve ethnic conflicts is a ‘mission impossible’.

Papua New Guinea’s Constitution, made for its independence in 1975, provided the judiciary with broad, liberal powers to rectify the wrongs of colonialism, assist the country’s development, and meet the needs of a diverse people. This presents a challenge for judges, and particularly foreign judges, who are often unfamiliar with the constitutional history of Papua New Guinea or are reluctant to take an approach to judging that departs from the more conservative judicial roles preferred in their own jurisdictions. This chapter argues that foreign judges must adapt to their role as judges of Papua New Guinea, which requires relinquishing some of the biases and professional sensibilities ingrained from their training and experiences in other jurisdictions. It suggests that greater attention to the judicial ideology of foreign candidates, and prioritising recruits from jurisdictions with similar constitutional frameworks and colonial histories to Papua New Guinea, would help the judiciary to fulfil the transformative role envisaged for it by the Constitution.

This chapter examines the arrangements for foreign judges in domestic courts of East Timor. Building on semi-structured interviews with Timorese judges and lawyers, foreign judges, United Nations Development Programme professionals and field observations, it engages with questions of why foreign judges were introduced as part of state-building initiatives and how they assisted Timorese judicial actors in strengthening judicial independence. The chapter, at the outset, provides a ‘thick description’ of the challenges that foreign and local judges had to traverse to strengthen the role of the judiciary locally. Relying on data from the field, it problematises the tensions between pursuing ‘ideal’ transnational standards of judicial independence and what may be ‘ideal’ for establishing the authority and legitimacy of courts in a state that is in transition. The chapter also highlights the shifting influence of foreign judges in East Timor.

In the Middle East and North Africa region, laws organising the judiciary and bilateral agreements on judicial cooperation expressly permit the use of foreign judges on domestic courts. Judicial ‘secondments’ of this type allow host courts to deal with increasing caseloads expeditiously, while providing shadow-training for domestic judges in the long term. This chapter outlines the practice of sharing judges in the region and describes how foreign judges serve on domestic courts in Bahrain, Kuwait, Qatar and the United Arab Emirates, in law and practice. Using the lens of political economy, the analysis highlights two trends in the region. The first is the recruitment of foreign judges to fill skills and knowledge-based gaps among domestic judiciaries. The second is the high degree of executive control over the movement of judges, in both sending and receiving states, with implications for the separation of powers, judicial independence and executive accountability.

After 22 years of uninterrupted authoritarian government headed by Yahya Jammeh, The Gambia formally began a transition to democracy after the December 2016 elections. Given the inadequate development of local legal tradition and lack of resources to fully equip the judiciary, The Gambia has a history of having foreign judges on the bench. This chapter provides insights from The Gambia’s distinctive experience in using foreign judges in the contexts of decolonisation, an authoritarian regime, and transition to democracy. The Gambian context raises important questions about the role of foreign judges in a new democracy emerging from colonial and authoritarian rule. Accordingly, through a historical and contemporary critical review, the chapter provides an overview of the rationale for the use of foreign judges and its impact on judicial independence and the rule of law.

Foreign judges sit on domestic courts in over 50 jurisdictions across the world. The practice raises underexplored questions about the significance of foreignness and mobility to the judicial role. This chapter draws on the contributions to The Cambridge Handbook of Foreign Judges on Domestic Courts to set out a framework for analysing the phenomenon of foreign judging and its legitimacy and effectiveness. Drawing on various incidents of foreign judging, it disaggregates five rationales for the use of foreign judges on domestic courts: necessity, institution building, distance, expertise and reputation. It identifies size, the domestic legal system, and the degree of international involvement as factors that make some jurisdictions more receptive than others to foreign judges. The chapter canvasses the implications of foreign judging for the identity and role of the judge, judicial independence and accountability, and adjudication and the development of the law. The experiences of jurisdictions across the globe suggest that foreign judging is a diverse phenomenon which will continue to evolve in contemporary conditions of globalisation.

For eight years between 2011 and 2019, I, a French professor of law, served as a judge of the Constitutional Court of Andorra, the only woman to have been appointed to that Court since its establishment in 1993. This chapter presents a critical analysis of being a judge in Andorra, informed by the distinctive history and features of constitutional justice in the small state situated between two powerful European neighbours, and by my own personal experience. It provides insights into how the process of appointing judges and the organisation of work within the Constitutional Court accommodate foreign judges, and how diversity on the bench – in terms of the legal culture, mastery of language, professional training, gender, and the psychology of the judges – influences the way in which constitutional justice is delivered in Andorra.

The Caribbean Community (CARICOM) has two regional court systems, the Eastern Caribbean Supreme Court and the Caribbean Court of Justice. A product of political and economic integration, each court has taken a different evolutionary path resulting in different constitutional arrangements, but neither make nationality a criterion for appointment to judicial office. This chapter considers the concept of ‘foreignness’ in relation to these two regional Caribbean courts. It draws on the results of structured interviews with judicial officers and attorneys from across the region to analyse perceptions about the significance of judges’ nationality to the quality of judging and public expectations. The findings suggest that – in the Caribbean context which is shaped by regionalism, small communities and the legacies of colonialism – nationality does not matter as much as the impartiality, competency, and efficiency of the judge.

This chapter examines the appointment of foreign judges through the lens of political contestation and potential judicial interference in Botswana, Lesotho and Eswatini. It first interrogates why the appointment of foreign judges continued after domestic pipelines of judges had increased. Adopting a regime-based approach, the chapter first argues that the continued appointment of foreign judges beyond functional necessity is a form of strategic policy drift, because it does not require a new policy and it may be couched in positive or populist terms. Second, this chapter examines the timing of the pivot away from the appointment of foreign judges in Botswana and Eswatini. It shows that judicial leadership combined with local demand plays an important role in the timing of change, but that the localisation of appointments to apex courts of appeal, without reform of the appointment process itself, provides democratic window dressing for hegemonic regimes. The rhetoric around citizen-based localisation (Botswana) or racially-based Africanisation (Eswatini) has a populist flavour which may provide cover for varying degrees of autocratic behaviours.

Foreign judging in the small jurisdictions in the Anglo Caribbean is ubiquitous and diverse. It is evident in extraterritorial and hybrid courts and a diverse group of foreign judicial officers. This chapter defines foreign judging to include intra- and extra-Caribbean personnel and institutions and complicates the image of the foreign judge as entirely an outsider. The chapter traces ways in which foreign judging has refined understandings of judicial independence in the Caribbean. It examines the dynamics of the two apex extraterritorial courts, one a surviving imperial court (the Judicial Committee of the Privy Council) and the other a more modern decolonisation-driven treaty-based court (the Caribbean Court of Justice). The chapter looks at how conceptions of judicial tenure until retirement are upended by mobile judges who serve consecutively or concurrently in more than one jurisdiction. It also explores how the stringent requirements for removal of a judge are recalibrated by the heightened scrutiny of judicial conduct in small jurisdictions.

There is a long tradition of foreign judges serving in Liechtenstein courts. Until 1918, the higher courts had their seat not in Liechtenstein but in Austria. The Constitution of 1921 required that all courts be situated in Liechtenstein, but also institutionalised the participation of foreign judges in Liechtenstein’s courts. Foreign judges are recruited exclusively from Austria and Switzerland, reflecting the strong influences that those legal systems have had on the development of Liechtenstein’s own laws and judicial system. This chapter places the use of foreign judges in the context of Liechtenstein’s history and economy before examining the role of foreign judges in Liechtenstein’s legal system. It shows how foreign judges have influenced and shaped the law, through the interpretation of received laws, the development of legal doctrine and the evolution of rights jurisprudence.

Since 1906, when the British colonial Residency commenced, Brunei Darussalam has had a dual legal system in which common law courts operated alongside Islamic courts. In keeping with the Sultan’s post-independence ideological policy for Islamisation of law and legal institutions, the jurisdiction and importance of the Islamic courts has increased. However, the higher echelons of common law courts, including the Court of Appeal, remain constituted by non-citizen, foreign judges from the British Commonwealth. This chapter evaluates the current role and purpose of foreign judges in the Sultanate. Whilst these judges cannot engage in constitutional interpretation or in judicial review, their distinguished careers outside Brunei Darussalam enable their presence to bring independence, impartiality, and experience to Brunei Darussalam’s civil courts. The chapter reflects on the impact on the dual system court from creating a zikir (fully-Syariah compliant) nation, and consequences of duplication and jurisdictional uncertainty that have arisen.

Judges are a symbol of a nation’s resolve to be governed under the rule of law. Where a country is unable to appoint judges from among its citizens, it may look to recruit judges from outside, in the confidence that irrespective of where judges are trained, they possess the requisite standards of professionalism, integrity, expertise and impartiality to engender, protect and promote the rule of law. Employing the technique of personal narrative as legal theorising, this chapter discusses my experiences as a judge in four Commonwealth jurisdictions – Ghana, The Gambia, Eswatini and the Turks and Caicos Islands – and outlines the political climate, the structure and functions of the judiciary, the challenges faced, and the benefits foreign judicial service bring to the jurisdictions in which they work. The chapter also suggests ways in which jurisdictions can ensure that expertise is effectively transferred in order to end their dependence on foreign judges.

Seychelles is a small island state with a hybridity of citizens, language, and culture. Its heritage of double colonisation has resulted in a complex blend of the French civil tradition and English common law. Litigation and adjudication in Seychelles have demanded knowledge of both legal traditions and necessitated the recruitment of judicial officers from outside the jurisdiction to complement the limited pool of locally available judges. This chapter considers the substantive and procedural constitutional provisions for the appointment of both Seychellois and foreign judges to the judiciary of Seychelles, the ratio of foreign judges to Seychellois judges, and how Seychellois view foreign judges and whether their perspectives on the role of foreign judges is substantiated by evidence. Examples of some of the difficulties experienced by the appointment of foreign judges are given, together with a reflection on whether these issues are specific to foreign judges or apply to judges generally. Finally, the continuing role of foreign judges in the Seychellois judiciary is explored together with an assessment of their contribution to, and/or diminution of, the judicial and legal landscape.

This chapter examines the role of foreign judges in the international mission to support the fight against corruption and impunity in Honduras ('MACCIH'), as conceived on paper and implemented in practice. It identifies two elements, aside from adjudication, of the role of the foreign judge in the international mission – as a diplomatic interlocutor to promote a new vision of the judiciary, and as an accountability mechanism for the international mission itself. The Honduran mission against corruption, and the use of foreign judges within it, can be understood in light of the receptiveness, in the wider Central American region, to international intervention in order to strengthen democracy, constitutionalism and human rights. However, the recent history of such international interventions raises questions about how the reputation and expertise of foreign judges and other foreign personnel can lend legitimacy to domestic institutions where corruption is rampant and where they face backlash from powerful domestic actors in the name of sovereignty.