Hybrid Constitutional Courts: Foreign Judges on National Constitutional Courts

Foreign judges play an important role in the constitutional or apex courts of a range of countries.  Comparative constitutional scholars, however, have to date paid limited attention to this phenomenon of “internationalized” or “hybrid” constitutional courts.  This article thus addresses this gap in comparative constitutional scholarship by providing a general framework for understanding the potential advantages and disadvantages to hybrid models of constitutional justice. It suggests that the attractiveness of hybrid constitutional models will generally depend on the answer to five key questions – i.e. whyforeign judges are appointed to a court and the degree of local democratic support for their appointment, who the foreign judges are, by what means are they appointed and paid and how their terms in office are structured, how foreign judges approach their adjudicatory role, and when they exercise their role.

Temporary Judicial Officers: Best Practice in Comparative Perspective

The appointment of Temporary Judicial Officers can arouse strong opinions. In Australia, Justice Kirby of the High Court has asserted that the ‘time has come … to draw a line and forbid the practice’. At the same time, most jurisdictions recognise the need for such appointments to assist the courts in significant ways. In this paper, we examine the challenges and the advantages of the use of temporary judicial officers, and, through comparison of Australia, the United Kingdom, New Zealand, America and India, we posit a number of recommendations for best practice in the area. Our goal is to propose a framework around the appointment, conditions, remuneration and termination of temporary judicial officers that is principled, efficient and effective, that both respects and promotes and independence of the judicial branch while harnessing the potential contribution to the administration of justice of a temporary judicial officers’ regime.

Foreign judges on constitutional courts: Global insights from Pacific experience

Foreign judges sit on courts of constitutional jurisdiction in more than 30 independent states across the world. The practice is particularly prevalent in the Pacific. Over the past 15 years, 187 foreign judges have served on the courts of constitutional jurisdiction in Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. Foreign judges significantly outnumber local judges in all but one of these states. Every national constitution in the region anticipates, and to varying degrees regulates, the use of foreign judges. This paper will present the findings of an original empirical investigation into the number of foreign judges serving in the Pacific, their backgrounds, and their service. It will then outline some of the ways in which the use of foreign judges affects the work and status of courts of constitutional jurisdiction, focusing on judicial independence, constitutional adjudication and the position of the court in the wider community.

The Promise and Perils of Foreign Judges on Constitutional Courts

Several divided societies have reserved places for foreign judges on their constitutional courts.  Drawing on quantitative evidence and elite interviews from Bosnia-Herzegovina, this paper considers both the intended and unintended consequences of this practice.  First, the paper considers if a coherent theory for the practice can be gleaned from either constitutional structure and/or the subjective self-understanding of foreign judges themselves.  Second, the paper reviews the reality (at least as it has played out in Bosnia) to illustrate both the benefits as well as the moral hazards that may result.  It is argued that the practice, even if consistent with its underlying theory, may have unintended and potential negative effects on how domestic judges approach their own role.