Simon Young on Domestic Criticisms of Foreign Judges (CUP book chapter)

"Domestic Criticisms of Foreign Judges"
Simon Young
in Anna Dziedzic (ed) and Simon Young (ed), The Cambridge Handbook of Foreign Judges on Domestic Courts, (Cambridge University Press, October 2023), pp. 284-299

Summary: This chapter discusses three common criticisms of using foreign judges on domestic courts. First, that the foreign judge, ignorant of local laws, customs and circumstances, will reach decisions that are legally wrong, assertive of colonial values and principles, or simply unacceptable to members of the local community. Second, the foreign judge, not being a citizen or resident of the local jurisdiction, has divided patriotic ties rendering him or her ill-suited to consider questions of constitutional significance, national security or foreign affairs. Third, the expertise of the foreign judge is no longer needed as there is already abundant domestic legal expertise. The chapter responds and reflects upon these criticisms in the context of the evolving system of overseas non-permanent judges of Hong Kong’s Court of Final Appeal since 1997.

New Book by Anna Dziedzic: Foreign Judges in the Pacific (Hart Publishing)

Foreign Judges in the Pacific
Anna Dziedzic (Global Academic Fellow)
Hart Publishing

Published in 2021

Book Description: 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.

Anna Dziedzic on Foreign Judges and Hong Kong’s New National Security Law (Commonwealth Judicial Journal)

“Foreign judges and Hong Kong’s New National Security Law”
Dr Anna Dziedzic

Commonwealth Judicial Journal

2020, Vol 25, Issue 2, pp. 27-33

Abstract: Foreign judges have had a longstanding role on Hong Kong’s Court of Final Appeal. In 2020, this tradition faced significant challenges as the People’s Republic of China enacted a new National Security Law for Hong Kong. This article examines the implications of the new law for the foreign judges on Hong Kong’s Court of Final Appeal. It tracks the debates about the potential exclusion of foreign judges from hearing national security cases and the difficult question of judicial resignations. The article explains how these issues take on greater significance because of the distinctive rationale for the use of foreign judges in Hong Kong, where foreign judges are understood to signify the distinctiveness of Hong Kong’s legal system as well as its quality.

Anna Dziedzic on Foreign Judges: Pacific Practice and Global Insights (Commonwealth Judicial Journal)

“Foreign judges: Pacific practice and global insights” 

Anna Dziedzic

Commonwealth Judicial Journal

2019, Volume 24, Issue 2, pp. 26-29

Abstract: The use of foreign judges is an exceptional phenomenon in world experience. That judges, particularly on a state’s highest courts, will be citizens is often taken for granted in academic and practice-oriented literature on judging. However, foreign – or non-citizen – judges sit on domestic courts in over 30 jurisdictions across the world. Given the majority of these jurisdictions are Commonwealth states in Africa, the Caribbean and the Pacific, readers of the Commonwealth Judicial Journal might be one of the rare audiences for whom the use of foreign judges is a familiar practice. The use of foreign judges is a largely under-studied phenomenon. It raises a host of practical and theoretical questions. Just how does foreign judging work in practice? How might the constitutional and judicial systems of states accommodate the use of foreign judges? To what extent, if at all, does the nationality of the judges on a domestic court matter? This short article outlines some responses to these questions, drawing on insights from the practice of foreign judging in Pacific island states.  The paper can be downloaded from SSRN.