Pacific island states are unusual, but not alone, relying on foreign judges to sit in their highest courts. In the nine Commonwealth states of Fiji, Kiribati, Nauru, Papua New Guinea (PNG), Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu, more than three quarters of judges in office since 2000 are foreign judges. Judges are recruited from a variety of jurisdictions, including Australia, New Zealand, Sri Lanka and the United Kingdom, as well as common law countries in Africa and the Pacific region itself.
My new book, Foreign Judges in the Pacific, explores what the use of foreign judges means to the operation of Pacific courts, how they make decisions and how they are connected to the wider community. This post focuses on a narrower issue: the intersection of foreign judgment and overseas development assistance.
Why do Pacific states use foreign judges? The most frequently cited reason is that there is a shortage of qualified citizens willing and able to perform judicial duties, and that foreign judges are needed to ‘fill the void’. Based on this, we can expect that as more Pacific Islanders become judges, Pacific courts will “go local” and rely less on foreign judges. This can already be seen in PNG, Samoa, Solomon Islands and Vanuatu, where the majority of superior trial court judges are now local judges, although foreign judges are still appointed.
Another justification sometimes put forward is capacity building. For example, a job offer required applicants to have “demonstrated success in developing individual and organizational capacity and sustainability of efforts, ability to share knowledge and transfer skills”. Applicants also had to “be able to encourage and assist legal practitioners and other judicial and support staff to improve their performance, practice and job skills”. In such cases, it seems that foreign judges are expected to be both judges and technical experts in capacity building.
The extent to which foreign judges can – and should – be seen as capacity builders is questionable. Foreign judges can serve as a link between the courts and legal professions of the Pacific state and their home state. For example, several judges have helped facilitate training, research assistance and donations of legal materials for Pacific legal communities. However, there are objections to judges playing a capacity-building role themselves.
Some judges I interviewed felt strongly that their role was purely judicial: they were appointed judges and capacity building of the kind sought by development agencies was neither necessary nor appropriate. The idea that foreign judges are there to “teach” local judges has colonial connotations and risks creating a perception, both internally and externally, that local judges are not sufficiently qualified and competent in their role. The practicalities of foreign judgment – in which many foreign judges travel sporadically to the Pacific or have short-term contracts – limit opportunities for foreign judges to deepen their knowledge of the country’s law in context and to develop strong relationships with local actors, both of which are essential for effective capacity building.
An overlap between foreign judges and development assistance can also be seen in the conditions of employment of foreign judges, which in turn has implications for judicial independence.
Not all foreign judges are paid by external funds – some foreign judges are paid by the government of the Pacific state in which they sit, according to the same pay scales that apply to all other judges. But for judges supported by development agencies, compensation poses difficult issues. Foreign judges recruited by development agencies are generally hired at similar pay rates to external consultants. Some foreign judges receive remuneration commensurate with what they would earn in their country as a judge, with the aim of ensuring that the position is attractive to the right candidates. Both often far exceed what local judges earn and come at the cost of equal pay for equal work.
The question of remuneration also raises questions for judicial independence. International standards of judicial independence seek to protect judges from undue interference, including by ensuring secure tenure and remuneration. However, for many foreign judges serving in the Pacific, their position and pay are precarious.
Many are appointed on renewable short-term contracts, a practice that suits both Pacific governments and development agencies, but is a classic “red flag” for judicial independence. Some foreign judges have been unable to remain in office when donors have refused to extend funding, whether because the program has ended, funding has been reallocated, or for other undisclosed reasons. This is a reminder that for judiciaries that rely on foreign judges, the levers of influence that could undermine judicial independence are not only in the hands of the government, but are also held by donor agencies.
Development agencies’ approaches to contractual employment and remuneration do not easily mesh with the job and remuneration security required to protect judicial independence. Ad hoc funding of individual foreign judges may meet a short-term need, but it is not the best way to build a strong and sustainable justice system. The emphasis on capacity building by some development agencies further complicates the role of foreign judges, imposing the expectation that judges are also technical capacity building experts, or even diplomats.
The question must then be asked: does the appointment of foreign judges under such conditions undermine the very qualities of good governance and the rule of law that development agencies seek to promote?
So how could donor agencies mitigate the risks to stability and judicial independence? If localization is recognized as the most sustainable option for Pacific justice systems over the long term, donor funds could be invested more effectively in legal education and development of the legal profession and justice institutions themselves. , as a way to build local legal professions and make judicial office an attractive career choice for Pacific Islanders.
The reality, however, is that several Pacific states are likely to rely on foreign judges for some time to come, and so consideration should be given to ways of making foreign judgment more secure and sustainable, both for individual judges and for Pacific justice systems. A good start would be to provide foreign judges with greater job security and longer terms, guaranteed by law in Pacific states and respected in practice by donor agencies.
Another useful strategy could be to foster formal links between judicial systems, ensuring continuity and creating a cohort of foreign judges with a connection to the Pacific jurisdiction. Examples include arrangements between Supreme Court of Vanuatu and District Court of New Zealand, under which a New Zealand District Court Judge is seconded to the Supreme Court of Vanuatu for periods of two to three years on a rolling basis since 2004; and a comparable arrangement between the Supreme Court of PNG and Federal Court of Australia which has been in place since 2011.
Finally, it would be beneficial for Pacific states and donor agencies to publicly justify the recruitment of a foreign judge in each case – whether to fill a vacant position, to meet a short-term need arising from the recusal or unavailability of local judges or to provide specialized expertise. Clarity of justification is not simply a matter of transparency. It is necessary to justify any departure from the standard tenure and compensation protections that guarantee judicial independence. And it provides a way to ensure that the choices (often made behind closed doors) in the selection of foreign judges, and the terms of their service, do indeed contribute to addressing the need to use foreign judges in the first place.