The best judges in this country were all foreigners. Now they’re gone.
The Pacific island nation of Kiribati, which has been an independent state for more than four decades, never had a chief justice born there until a few weeks ago.
For some, the elevation of Attorney General Tetiro Semilota to acting Chief Justice was a historic moment. But for others it was deeply contentious because her new job had become open: the government she serves had fired her predecessor and four other senior judges, all foreigners.
The dispute in Kiribati highlights a curious phenomenon among Pacific island nations. Domestic courts are often staffed by non-citizen judges, a legacy of colonialism, which has regularly led to conflict in recent years and has now left Kiribati without a functioning judiciary for months.
The region is not the only one with foreign judges. They serve in courts in Hong Kong, the Caribbean, Africa and small European nations.
But they are perhaps most widespread in the Pacific. In the nine Pacific States that are part of the Commonwealth, more than three quarters of judges over the past two decades have been foreigners, said Anna Dziedzic, a Pacific Justice expert at the University of Melbourne.
An ever-increasing number of local judges are being appointed in some of the larger Pacific Island countries, such as Vanuatu, the Solomon Islands and Samoa. But in smaller nations like Kiribati, Tuvalu and Nauru, courts – especially at higher levels – are still mostly staffed with foreign judges.
“The primary reason Pacific nations use foreign judges is simply the lack of qualified citizens willing to serve as judges,” said Dr. Dziedzic. Local residents were not appointed to government posts during the colonial era and were rarely able to acquire legal qualifications, she added.
These judges are mainly from Australia and New Zealand and occasionally from the UK. They deal not only with technical legal issues, but sometimes with weighty constitutional issues that have political implications. The nations that appoint them, says Dr. Dziedzic, often believe that their presence enhances a court’s legitimacy or that they are more impartial than local judges who may have ties to close-knit communities.
Aware of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution based on what they see as the authors’ original intention, making them less likely to make decisions meetings that bring about social change, said Dr. Dziedzic.
Their presence is also part of a broader challenge facing Pacific nations as they consider how to calibrate legal systems that draw on both indigenous customs and Western legal traditions imported during colonization.
In recent years, for example, Samoa has behaved in a somewhat controversial manner constitutional changes “Inserting more indigenous Samoan values into the constitution to offset what they saw as some sort of Western influence,” said Dr. Dziedzic.
Patrick Fepulea’i, a Samoan lawyer, said that while local judges are sometimes less experienced than foreign ones, they are better equipped to handle matters affecting local customs and traditions.
Samoa’s district courts and Supreme Court are now fully staffed by local judges, he said, a change widely welcomed by the public. The next step, he said, will be to locate the highest instance, the Court of Appeal, whose three current judges are New Zealanders.
“That’s what I suppose every country like ours aspires to: that one day all our courts will be filled with local judges,” he said.
The foreign judges who remain in Pacific states may face political vulnerabilities and loyalty issues that local judges do not have to deal with.
Kiribati is just one of the countries that have tried to remove foreign judges. In 2014, the Pacific nation of Nauru deported its sole judge and revoked its chief justice’s visa. In the same year, the island nation of Timor-Leste dismissed all foreign judicial staff and ordered five judges, two prosecutors and an adviser to leave the country immediately. Critics in both cases said the government’s actions were politically motivated.
In the case of Kiribati, the president suspended the five senior foreign judges after they either challenged the government or ruled against it for actions they considered illegal. In response, President Taneti Maamau accused them of being “neo-colonial” actors trying to undermine Kiribati’s sovereignty.
At the heart of the crisis is David Lambourne, an Australian who became a judge on the island nation’s High Court in 2018. Mr Lambourne said the appointment was uncontroversial until his Kiribati-born wife Tessie Lambourne became the country’s opposition leader in 2020. After that, the government sought to limit the length of his appointment, which he said had no fixed term.
Last year the government told him he would not be granted another work visa unless he signed a new contract that would limit his employment to three years, according to court documents. He appealed, calling the move unconstitutional.
The Chief Justice at the time, William Hastings, a retired New Zealand judge, ruled in favor of Mr. Lambourne – and was then suspended by the government over allegations of misconduct along with Mr Lambourne.
Mr Lambourne was locked out of Kiribati during the pandemic but was able to return on a visitor’s visa in August this year. After his arrival, the government twice tried to deport him and once accused him of posing an unspecified security threat. In both cases, the deportation was stopped by the Court of Appeal, which was staffed by three retired New Zealand judges.
In September, the government suspended all three judges of the Courts of Appeal, leaving the nation of 120,000 without a judge above the magistrate level.
Mr Maamau has made numerous public statements accusing the suspended judges of trying to consolidate their own power by helping to secure Mr Lambourne’s appointment for life.
“It is disheartening to see neo-colonial forces arming the laws made to protect a person in Kiribati to further their own interests and suppress the will of the people,” he said in a statement.
The appointment of Ms Semilota as acting Chief Justice “consistent with the judiciary’s drive to locate this important position in recent years,” a spokesman for Mr Maamau said in an emailed statement.
Mr Lambourne said the government’s actions were politically motivated and targeted at his wife, who a vocal critic of Mr Maamau’s moves to align Kiribati with China and withdraw from key regional bodies.
“I believe this is an attempt by the government to force me out of office and force me out of Kiribati in the very misguided belief that if I weren’t here Tessie would have to leave politics,” Mr Lambourne told a telephone interview .
He added that all five foreign judges were appointed by Mr Maamau, 62, who has been president for six years.
“For him to turn around now and say, ‘It’s all these white people trying to protect each other,’ is nothing more than blatant racism on his part,” Lambourne said.
Tess Newton Cain, Pacific Hub project leader at Australia’s Griffith Asia Institute, said the crisis has raised concerns about the state of democracy in Kiribati.
Without a functioning judiciary to keep the government in check, “there is no way to challenge that decision or exercise of power when the government is improperly exercising power or acting in a way that restricts the democratic process,” she said.
The actions of the Kiribati government have been criticized by legal and human rights bodies. Diego García-Sayán, UN Special Rapporteur on the Independence of Judges and Lawyers, called the suspension of the judges without due process “a serious blow to the independence of the judiciary”.
https://www.nytimes.com/2022/11/26/world/asia/foreign-judges-kiribati-pacific.html The best judges in this country were all foreigners. Now they’re gone.