Judges as Cultural Outsiders: Exploring the Expatriate Model of Judging in the Pacific
| Author | Natalie Baird |
| Position | Senior Lecturer, School of Law, University of Canterbury, New Zealand |
| Pages | 80-96 |
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JUDGES AS CULTUR AL OUTSIDERS: EXPLORI NG THE
EXPATRI ATE MODEL OF JUDGING IN THE PACIFIC
N B*
I. I
Expatriate judges from New Zealand, Australia and beyond are used in
many Pacic Island countries, both as f ull-time resident members of the
judiciary and as part-time non-resident members of appellate courts. At the
time of independence in the 1960s-1980s, the expatriate model was used by
a number of Pacic Island states to overcome the very real limitations of a
small pool of local legal talent, and it continues to be used today. However,
the model raises some issues, including what it means for developing an
indigenous legal system that reects and accommodates t he values and
customs of local society. In the related context of exploring a regional Pacic
court of appeal, Mere Pulea has noted:1
But what kind of justice are we searching for? One that is of ‘ high quality’
in the sense of rigid conformity to English leg al practices and va lues? Or
do we seek the kind of judgments that are rmly rooted in the Pacic
context where judges are attuned to the customs, conditions and the way
of life of the people they are judging?
is article explores the role of expatriate judges in the Pacic region.2
What are the benets of this model? W hat are the chal lenges? While
expatriate judges generally bring a wea lth of judicial experience and expert ise
to their Pacic roles, there are also a number of challenges arising from the
expatriate model. In particular, as “cultural outsiders”3 expatriate judges
sometimes need to tread a ne line between ma king culturally inappropriate
decisions at one end of the spectrum and taking cultural sensitivity to an
* Senior Lectu rer, School of Law, University of Canterbur y, New Zeala nd. I wish to
acknowledge my f riend and former colleague Hele n Aikman QC who pas sed away in
January 2012. Helen wa s counsel in the Samoa Par ty case and sparked my inte rest in the
role of expatriate judg es in the Pacic. I am als o grateful to the part icipants at the “Law and
Culture: Pacic L aw and Aotearoa New Zea land” Conference (Unive rsity of Auckland,
29-31 August 2012) and the “Democra cy in the Pacic” Conference (Un iversity of
Canterbury, 18-19 October 2012) for their comments on ea rlier versions of this paper, and
to anonymous revie wers for their suggestion s and feedback.
1 Mere Pulea “A Regional Court of Appe al for the Pacic” (1980) 9(2) Pacic Perspective 1 at
9.
2 For the purposes of this ar ticle, the “Pacic region” comprises t he 14 island members of t he
Pacic Island s Forum, namely t he Cook Islands , Fiji, Kiribati, the M arshal l Islands, t he
Federated States of M icronesia, Nauru , Niue, Palau, Papua New Gui nea, Samoa, Solomon
Islands, Tonga, Tuvalu and Vanuatu.
3 New Zealand L aw Commission Converg ing Currents: Custom an d Human Rights in the Pacic
Study Paper No 17 (NZLC, Wellin gton, 2006) at [13.76].
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extreme at the other. While a certa in amount of deference to local decision
makers will sometimes be necessary, a rigorous and independent approach
is also expected, in pa rticular of the nal court of appeal. e article oers
some very preliminary t houghts as to how expatriate judges might nd a
balance between t aking heed of local circumstances wh ile also ensuring a
robust and independent approach to judging in the Pacic. Ultimately, it is
recommended that further exploration of the concept of deference in this
context is required.
Part II of this article considers three types of foreign appeal model
currently being used in the Pacic region. Part III considers the benets of
the expatriate model of judging, while Part I V notes some of the challenges.
Part V explores the particula rly challenging situation where expatriate judges
are required to give judgment in cases with a sign icant cultural or customary
element. Part VI suggests that the concept of deference might usefully be
employed by expatriate judges to explore the parameters of judicial deference
to local decision makers. Part V II oers some tentative conclusions.
II. F J M P
Before considering the benets and challenges of t he expatriate model of
judging, it is useful to consider the expatriate model of judging as part of a
range of foreign judicial models. Dale’s 2007 study of Nauru’s appellate model
discussed three “ foreign appeal” models.4 He dened a foreign appea l model
as one where at least some of the appellate judges of a state are citizens of a
foreign state. e “expatriate model” is when expatriate judges are appointed
to an indigenous court. is model is c urrently used in a number of appellate
courts in the Pacic region including Samoa, Fiji Islands, K iribati, Solomon
Islands, Tonga and Tuvalu.
e “supranational model” occurs when a state confers appellate
jurisdiction on a supranational court. e cour t itself does not belong to any
single country even if one country f unds the court. It usua lly hears appeals
from two or more countries. Supranational appellate courts someti mes
produce a single jurisprudence. e Privy Council is the supranationa l
appellate court which has had t he most inuence in the Pacic region. In the
Pacic, a right to appeal to the Privy Counci l still exists for the Cook Islands,
Niue, Tuvalu, Kiribati (for Banaban and Rabi Council constitutional issues
only) and the Pitcairn Islands.5
e third model is what Dale terms “the oshore municipal model.” is
is where one state arranges for another state’s court of appeal to act as its cour t
of appeal also. is model applies in Nauru where the na l court of appeal is
4 Gregory Dale “Appealin g to Whom? Australia’s ‘Appellate Juris diction’ Over Nauru” (2007)
56 ICLQ 641.
5 See . For furt her discussion of this model, a nd an argument in favour of
its demise, see M ike Cook “A Pacic Court of Justice” ( LLM Final Paper, Victoria Universit y
of Wellington, 2013).
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