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Foreign Judges in the Pacific: Hart Studies on Judging and the Courts

Autor Dr Anna Dziedzic
en Limba Engleză Paperback – 28 iun 2023
This book explores the use of foreign judges on courts of constitutional jurisdiction in 9 Pacific states: Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. We often assume that the judges sitting on domestic courts will be citizens. However across the island states of the Pacific, over three-quarters of all judges are foreign judges who regularly hear cases of constitutional, legal and social importance. This has implications for constitutional adjudication, judicial independence and the representative qualities of judges and judiciaries. Drawing together detailed empirical research, legal analysis and constitutional theory, it traces how foreign judges bring different dimensions of knowledge to bear on adjudication, face distinctive burdens on their independence, and hold only an attenuated connection to the state and its people. It shows how foreign judges have come to be understood as representatives of a transnational profession, with its own transferrable judicial skills and values. Foreign Judges in the Pacific sheds light on the widespread but often unarticulated assumptions about the significance of nationality to the functions and qualities of constitutional judges. It shows how the nationality of judges matters, not only for the legitimacy and effectiveness of the Pacific courts that use foreign judges, but for legal and theoretical scholarship on courts and judging.
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Specificații

ISBN-13: 9781509942909
ISBN-10: 1509942904
Pagini: 264
Dimensiuni: 156 x 234 x 25 mm
Greutate: 0.36 kg
Editura: Bloomsbury Publishing
Colecția Hart Publishing
Seria Hart Studies on Judging and the Courts

Locul publicării:London, United Kingdom

Caracteristici

Empirical study sets out fascinating insight into foreign judges in the Pacific commonwealth

Notă biografică

Anna Dziedzic is Global Academic Fellow, Law Faculty, University of Hong Kong, Hong Kong.

Cuprins

1. Global Exception, Regional Norm I. Foreign Judges and Courts of Constitutional Jurisdiction II. An Underexplored Phenomenon III. An Overlooked Region IV. Methodology, Approach and Outline of the Argument 2. The Foreign Judges of the Pacific I. Introduction II. Methodology A. Defining a 'Foreign Judge' B. Scope of the Empirical Study C. Techniques of Data Collection III. Number and Proportion of Foreign Judges IV. Different Kinds of Judicial Service V. Who Serves as a Foreign Judge in the Pacific? A. Nationality B. Professional Background C. Gender D. The Significance of Identity and Background VI. Localisation A. Localisation in Papua New GuineaB. Localisation in Fiji C. Contributing FactorsVII. Conclusion 3. The Regulation of Foreign Judges I. Introduction II. Selection and Appointment A. Formal Appointment Process B. Recruitment C. Qualifications and Selection Criteria D. Formalities and Restrictions in the Foreign Judge's Home State III. Remuneration A. Rates and Sources of Remuneration B. Analysis and Implications IV. Tenure A. Constitutional and Statutory Provisions B. Relationship between Contractual Terms and Formal Appointment C. Duration of AppointmentsD. Analysis and Implications V. Removal A. Non-renewal of Contract B. Invitations to Sit on Court of Appeal Cease C. Visa Cancellation D. Analysis and Implications VI. Conduct of Hearings A. Language B. Time C. Place VII. Conclusion 4. The Significance of NationalityI. Introduction II. Nationality, Citizenship and Foreignness III. Knowledge IV. Membership V. Identity VI. Conclusion 5. Constitutional Adjudication I. Introduction II. Two Dimensions of Knowledge III. Transnational Knowledge Reach A. Shared Sources of Law B. Legal Borrowing IV. Local Knowledge Gaps A. Custom B. Constitutional Interpretation V. The Role of Local Judges in Bridging the National and Transnational VI. Conclusion 6. Judicial Impartiality and Independence I. Introduction II. Assessing Judicial Impartiality and Independence A. Components B. Purpose C. Standards III. Impartiality IV. Independence A. Short Renewable Appointments B. Arbitrary RemovalV. Conclusion 7. Representation I. Introduction II. How are Judges and Judiciaries Representative? III. Formal Representation: Authorisation and Accountability A. Selection and Appointment B. Oath of Office and Allegiance C. Accepting and Resigning Judicial Office D. Accountability IV. 'Acting for' Representation: What Guides Foreign Judges' Decisions? V. Descriptive Representation: Foreign Judges and a Reflective Judiciary A. Public ConfidenceB. External Audiences and the Sovereignty Paradox C. Internal Audiences and Legal Pluralism D. Accounting for Public Confidence in Foreign Judges VI. Conclusion 8. A Transnational Profession and Practice I. Introduction II. Rationale A. Transition B. Capacity Building C. Reputation D. Impartiality E. The Means and the Ends of Foreign Judging III. Legitimacy A. The Service Conception of Authority B. Democratic Legitimacy C. Tethering the Legitimacy of the Foreign Judge IV. Good Practice Initiatives A. Localisation B. Regionalisation C. Stability D. Judicial Independence E. Exchange of Knowledge V. Global Significance A. Globalisation B. Internationalisation C. Comparative Insights

Recenzii

Anna Dziedzic's well-researched study provides important insights not only into its express topic, described in its title, but also into broad questions about constitutional law and theory. Though the practice she analyzes is interesting but might seem of limited scope, in fact her arguments lead the reader to think more about what exactly constitutional interpretation is and how it relates to a nation's people.
In this insightful and important book, Anna Dziedcic examines the role of foreign judges in a range of Pacific jurisdictions, and the factors influencing the legitimacy and effectiveness of this form of 'outsider' constitutional influence. Wide-ranging in scope, nuanced and thoughtful in approach, it should be compulsory reading for anyone interested in constitutionalism in the Pacific, small states and the Global South, and for those interested in how we can realize commitments to judicial independence and effectiveness in these contexts.
In a world in which the judicial role in upholding the rule of law and democratic values is increasingly contested, Anna Dziedzic's book opens the door to a fresh set of dynamics. Her nuanced, perceptive, and knowledgeable study of the complexities surrounding the role of non-citizen judges in the highest courts of nine Pacific states advances the limits of scholarship in an exemplary fashion. This book also stimulates critical analysis of the tensions surrounding the constitutional democratic model in often challenging conditions. I highly recommend it.
In this fascinating and lucidly written book, Anna Dziedzic interrogates the practice of relying on judges who hail from other lands to adjudicate domestic constitutional cases. She enables readers to appreciate the influence that such foreign judges may bring to bear on processes of constitutional justice, and in doing so significantly advances our understanding of the reach and implications of judicial globalisation. Dziedzich also deserves to be commended for focusing her study on the Pacific, showcasing how this region offers sites and themes that can help advance the field of comparative constitutional studies as a whole
Anna Dziedzic's Foreign Judges in the Pacific is a must read for anyone interested in comparative constitutional law, court practice, legal theory and/or the legal facets of development aid programmes. Through a masterful combination of empirical research and legal analysis, the book sheds light on the largely underexplored (even if not uncommon) practice of appointing foreign judges to domestic courts, offering an in-depth and well-sourced discussion of the challenges and opportunities that come with it in terms of judicial independence, impartiality, representation, transnational knowledge reach and local knowledge gaps. The book's focus on the Pacific broadens the horizon of existing comparative legal research, while providing useful insights for the use of foreign judges in domestic courts elsewhere in the world. The author more than meets her promise to help understanding the contemporary role of judges and the judiciary under conditions of globalisation.