Sasha Borissenko: Kiribati's attempt to shed colonial past leaves it judgeless

Five judges in Kiribati's superior courts have been suspended by the Kiribati Government over the past year.

Pending formal proceedings could see them removed from office on the grounds of inability or misbehaviour.

Kiribati's superior courts have been made up of foreign judges from New Zealand, Australia, other Pacific nations, and common law African countries.

The suspensions mean no judges are serving on its superior courts. How did this separation of powers and constitutional crisis come to this? Let's look at the timeline in closer detail.

The saga stems from a political dispute between the Tobwaan Kiribati Party Government, led by Beretitenti (President) Teneti Maamay, and High Court judge Justice David Lambourne. Lambourne's wife, Tessie Lambourne, is opposition leader for the Boutokaan Kiribati Party.

Lambourne - a former Kiribati Solicitor-Gand long-time resident - was out of the country when it closed its borders as a result of Covid-19 and was subsequently refused repatriation flights.

He was allowed entry back into the country only on the condition that he signed a contract that retrospectively fixed the term of his judicial appointment to three years - when he was appointed in 2018, no term of appointment was specified.

Meanwhile, the Government passed the High Court Judges (Salaries and Allowances) (Amendment) Act 2021, requiring all judges to be appointed for fixed terms.

In November 2021, Kiribati Chief Justice William Hastings - a New Zealand judge - ruled the legislation was invalid.

He said the Government acted unconstitutionally in preventing Lambourne's re-entry insofar as retrospective limits were inconsistent with the principle of judicial independence.

Justice Hastings - a former Wellington resident - was suspended in June.

On the day of Hastings' suspension, he had been due to begin hearing a challenge to the tribunal established to consider Lambourne's case.

Fast-forward to early August, when Lambourne was detained and released from immigration detention after a failed deportation attempt by the Kiribati Government.

This led to a Court of Appeal decision on August 26, where three retired New Zealand judges - Paul Heath, Peter Blanchard, and Rodney Hansen - quashed two deportation orders.

"Such behaviour is unacceptable and risks putting […] the persons directly concerned in contempt of court. It must cease," the judgment said.

In response, the office of the Kiribati President said: "The Government of Kiribati abides by the laws and the constitution of Kiribati and has a higher duty to protect the interest of the people of Kiribati.

"It is disheartening to see neocolonial forces weaponising the laws that have been enacted to protect a Kiribati person to pursue their own interest and suppress the will of the people."

The Government did not accept the ruling, saying it would prevent Kiribati becoming a "judicial tyranny", comparing the Court of Appeal to the "Nuremberg judges […] aiding and abetting Nazi Germany".

The three Appeal Court justices were then suspended from the court, with the Government citing Section 93(5) of the Constitution of Kiribati.

"If the question of removing a judge of the Court of Appeal from office has been referred to a tribunal under the preceding subsection, the Beretitenti may suspend that judge from performing the functions of his office, and any such suspension may at any time be revoked by the Beretitenti and shall in any case cease to have effect if the tribunal advises the Maneaba that that judge should not be removed from office," it reads.

Kiribati's founding President, Sir Ieremia Tabai, said the Government's decision had plunged the country into "crisis".

"In my view, this is a total disregard for our judicial system […] and my view is that we are in a very bad crisis now because there are no more courts to which we can ask for a redress, so the whole thing now depends on what the Government wants, and I think it is a very bad situation to be in," Tabai said.

It is expected Maamau will set up a third tribunal to investigate the Court of Appeal judges and to allow the tenure of judges in the Kiribati courts to be decided by lawmakers in Parliament through a majority vote.

Meanwhile, the New Zealand Law Society has released numerous statements expressing its support for the people of Kiribati.

"The suspension of three senior judges – owing to disagreement with a ruling – is an inappropriate interference with the judicial process and undermines judicial independence in Kiribati," vice-president Ataga'i Esera said.

"It is important for the people of Kiribati that their judges are free to apply the law to both citizens and the state, without fear of recrimination. The Court of Appeal is Kiribati's highest local court, and its decisions should be respected. The rule of law demands this."

As the erosion of checks and balances on power continues in a bid to rid Kiribati of its colonial past, something is rotten in the state of Denmark.