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Sunday, December 19, 2004

Outsourcing the Judiciary 

Via the Head Heeb, I see that discussions about establishing a regional constitutional court for the Pacific Islands continue.

The idea, basically, is that small nations like Fiji, Samoa and the Solomon Islands simply do not have the resources to run constitutional courts like the US Supreme Court or the British Commonwealth's Privy Council. One solution is to outsource the job to a multinational organization. As the linked article points out, there's an additional complication: some of the countries in question have a common law heritage, while others derive their legal structures from French civil law. Presumably, countries jointly establishing any new court would want it to match their existing legal institutions as closely as possible, to avoid messy, expensive and confusing transitions, and this desire would be reflected in some pre-establishment bickering and complex negotiations over the court's ground rules. That we haven't seen even the establishment of a regular forum for such wheedling suggests that a new transnational court isn't likely to open for business any time soon.

A final point of interest (perhaps), is that to my limited knowledge, the only other such multinational constitutional court established in the post-colonial era is the European Court of Justice. If I recall correctly, that institution, much like the US Supreme Court, had to assert, under controversial circumstances, its right to pass judgment on the constitutionality of statute. I'd think it's a testament to the success of the ECJ that other regions are considering similar institutions.

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