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Newsletter Issue 3  |  May 2018
This is the third newsletter from the Constitution Transformation Network (ConTransNet) based at Melbourne Law School. We are a network of expert scholars sharing our latest research and exposure to the development of constitution-making processes, content and implementation.
Foreign judges on constitutional courts
In present conditions of globalisation, there is much discussion about the transnational movement of constitutional texts, ideas and concepts. Often overlooked, however, is the movement of judges themselves across national borders. This may be because it is generally assumed that the judges sitting on a state’s courts – especially courts of constitutional jurisdiction – will be citizens of that state. This assumption is reinforced by a review of national laws, which in over 100 countries require judges to be citizens. However, in a small but significant number of countries, foreign judges regularly sit on a state’s highest courts and determine constitutional matters.

Reasons for the use of foreign judges on constitutional courts vary.  In some circumstances, foreign judges are appointed to a constitutional court to counterbalance entrenched divisions within the national polity. The appointment of foreign judges to the Constitutional Courts of Bosnia Herzegovina and Kosovo is an example.  Another reason for the use of foreign judges arises where there are insufficient numbers of qualified local people who are able and willing to accept appointment as judges. This is the case in many small states and territories in the Pacific and Caribbean. Foreign judges might also be appointed to enhance the expertise and prestige of the courts, and the inclusion of foreign judges on the Hong Kong Court of Final Appeal might be understood in this sense. This range of rationales mean that the practice of foreign judging features in a variety of constitutional contexts.

Does the nationality of a judge matter? If so, how does the position of a foreign judge differ to that of a local judge? The answers are likely to depend on how the role of the judge is conceived, drawing on different theoretical understandings and legal traditions. One point of difference relates to the kinds of knowledge about both the law and the wider community that judges are expected to have, and the extent to which constitutional law is understood to be distinctively local, or converging in the wake of various historical and contemporary global influences. Another relates to conceptions of the judiciary as part of state or wholly separate to it, such that the ties of allegiance and membership that are understood to accompany nationality are understood to be more or less significant to the position of judges.

The use of foreign judges is just one manifestation of the interface between domestic constitutions and regional and international legal orders explored in the work of the Constitution Transformation Network. It deserves attention in its own right, as a feature of the constitutional systems across the globe, but also provides a new lens for examining widespread but often unarticulated assumptions about the significance of nationality to the functions and qualities of constitutional judges.
Seminar: "Notes from the Coalface - Working on Constitutional Reform in Myanmar

On 8 May, Cheryl Saunders lead a seminar at Melbourne Law School discussing the insights into constitution-building that she has gleaned engaging with policy-makers in Myanmar, under the auspices of International IDEA. Cheryl described the current context in Myanmar, the nature of the work she has been doing and some of the lessons she has learned regarding comparative constitutional law.

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Presentation: "Foreign judging and international judging"

Anna Dziedzic, ConTransNet Co-Convenor and PhD Candidate at Melbourne Law School, was a recent visitor to iCourts, the Danish National Research Foundation's Centre of Excellence for International Courts and the University of Copenhagen. On 11 April, Anna presented a seminar on ‘Foreign judging and international judging’, drawing on her doctoral research project on the use of foreign judges on the courts in independent Pacific island states. 

Knowledge exchange with the Sri Lanka judiciary

From 23 to 27 April, Melbourne Law School hosted ten judges from the Sri Lankan Supreme Court and Court of Appeal as part of a knowledge exchange focused on sharing MLS scholars' expertise on key issues of interest to the visiting judges. ConTransNet hosted Day 2 of the knowledge exchange with the agenda focused on showcasing Australia's own constit-utional history, institutions and practice, as well as canvassing global and regional constitutional developments relevant to Sri Lanka.

Seminar: "Brexit - Law, Constitution and Market"

In this important lecture, Professor Richard Rawlings, Professor of Public Law, University College London, one of the UK’s leading constitutional experts, addressed a central yet unexplored ramification of Brexit: the construction of ‘a UK single market’ to facilitate domestic commerce, pave the way for international trade deals and protect national resources.

Presentation: "An Australian Republic - Future Prospects"

The challenges of constitution building are real in Australia, as well as in the rest of the world. As elsewhere, they require careful thought to be given to process, as well as to the substance of constitutional change. On 7 May 2018, Cheryl Saunders stressed the former when speaking to a recent forum hosted by Monash Clayton Republic Club, Melbourne University Republic Club and the Progressive Law Network.

Presentation: "Using Comparative regional Law to Provide Direction to the Central American Integration System"

Carlos Arturo Villagrán Sandoval, a Member of ConTransNet, presented his thesis’ findings at the Central American Integration System General Secretariat in San Salvador, El Salvador on 9 April. Carlos Arturo discussed the challenges of how Central American academics and legal practitioners engage with other integration enterprises, arguing that there is a pattern of Eurocentric bias and decontext-ualized transplant of European doctrines in Central American legal scholarship.

Seminar: "Participation and process - the Sri Lankan experiment"

On 24 April, Ms Dinesha Samararatne, a Kathleen Fitzpatrick Visiting Fellow at Melbourne Law School, led a seminar that revisited the idea of public participation and consultation in constitution-making, using Sri Lanka as a case study. Public participation has been widely endorsed as a method of ensuring legitimacy of a constitution.  However, in the context of states emerging from armed conflict, Dinesha argues that public consultations and/or participation in constitution making can be a double-edged sword.


Presentation: "Myanmar - federalism and the judiciary

Cheryl Saunders, ConTransNet Co-Convenor, was in Myanmar for a week in March 2018, in her capacity as senior technical advisor to the Constitution Building Program of International IDEA. During that time, she held seminars and briefings with a series of groups, including judges and civil society, that will be involved in constitution implementation if and when constitutional changes were made to give effect to provisions of a peace agreement.