Throttling the judiciary in Kiribati … Appeal decision in favour of Justice David Lambourne … Open ended term not unconstitutional … Judicial “coup” … “Fraud upon the court” … High Court judges suspended … Role of China … Riley Brown reports 

In the colonial era these were the Gilbert and Ellice Islands, around 6,000 kilometres from Australia. 

All the phosphate has been mined from Banaba Island, so now the country’s economy is largely dependant on copra and fishing.

Not much happens on Kiribati – except that there is a bitter constitutional stand off between the government and the judges (or what’s left of them). 

The government has been trying to be rid of High Court justice David Lambourne – an Australian citizen resident in Kiribati since 1995 – who had been been the country’s solicitor general, and was appointed a judge in 2018. 

He understood that his engagement was not for a fixed-term. The president signed his appointment on advice from the chief justice and the public service commission. 

Neither the appointment document, the advice, nor the invitation for expression of interest stated a term limit. 

Two years later Lambourne took a trip to Australia and found on his return that he could notreenter the country, apparently because of pandemic restrictions. That was in March 2021. 

Eventually, as a condition of his return to Kiribati he signed, as a matter of “practical necessity”, a work permit which provided that his original judicial appointment was for three years, to June 30, 2021. 

Even so, no place for him on a repatriation flight to Kiribati was available and, in any event, the government’s position was that Lambourne’s term of office had expired. 

In November 2021, the chief justice William Hastings, a New Zealand jurist, found that Lambourne’s appointment without a fixed term was constitutionally valid and that the interference by the government was inconsistent with the judiciary’s independence. 

In December last year, the government filed an appeal against the CJ’s findings. Six months later Hastings and Lambourne were suspended for unspecified “misconduct”. 

The New York Times had a fascinating article about Batra’s career as a wheeler dealer and fixer in the city’s court system. 

The appeal became a matter of urgency because the appointments, known as “warrants”, of two of the appeal judges were due to expire on August 15, 2022 and there was no chief justice in place.

Another judge could not be sworn-in – again due to the suspension of the CJ. 

Oddly, last month the attorney general filed a notice abandoning the appeal, but this was done under a rule that only applied to criminal appeals. 

Lambourne was allowed back into the country on a visitor’s visa, and told he was not permitted to work. By August 11, he was the subject of a deportation order, alleging he had attended his chambers to work. 

Lambourne deposed that he had been at the court to “sort out several matters relating to provision of my entitlements”. 

He also used the court’s library for research relevant to the appeal. He was told that the police officer who was his driver would no longer be available. 

The airline that was to fly Lambourne to Fiji refused to take him on board. The Court of Appeal ordered that the respondent not be deported. 

The government detained the judge in a motel and confiscated his passport. 

Ravi Batra, for the attorney general, submitted that judicial appointments for life are unconstitutional, that the earlier High Court proceedings were “fraudulent” and that the judge’s appointment without a fixed term was “a scheme to defalcate monies from Kiribati’s treasury”. 

Also, he submitted that the appeal court could be complicit in this scheme if it did not overturn the decision of the now suspended chief justice. The appeal judges themselves could thereby be suspended and referred to a tribunal for investigation. 

Batra told the court the originating summons was “fraudulent”, life appointments were unknown in Commonwealth countries and that the deportation was justified. 

Further, Lambourne was a threat to the security of Kiribati and the deportation declaration of the president must be given “maximum deference”. 

He argued it was not open to the court to come to any other conclusion where a presidential order was related to state security. 

Sydney barrister Perry Herzfeld SC, for Lambourne, submitted that the deportation orders were unlawful and sought a permanent injunction precluding any deportation or detention as long as his client was a judicial officer. 

Further, he said, Lambourne can only be removed as a judge if the president acts in accordance with advice from the chief justice sitting with the public service commission.  

On August 26, appeal judges Paul Heath, Peter Blanchard, and Rodney Hansen, all from New Zealand, found that Hastings CJ’s decision to allow an appointment without a fixed tern was constitutional. 

They said that the terms of judicial appointments from the ranks of local lawyers are different from those applying to judges from overseas – who were on fixed terms. They rejected the submission that Lambourne was “profiting from his position”. 

Lifetime appointments are not unknown in the USA and used to be the case for the High Court in Australia. 

They rejected the submission from Batra that alleged fraud on the part of High Court judges – noting it was unethical to make such an allegation without proof. 

All in all, the deportations were invalid, the CJ’s orders were confirmed, Lambourne gets costs and his passport back. 

But, of course, he’s still suspended for “misconduct”, and now Heath, Blanchard and Hansen have been suspended by president Taneti Maamau. 

The attorney general for Kiribati said the High Court is likely to be suspended if it did not “self-correct”. The court is unable to function with no judges to perform the judicial arm of government.

The office of the president issued on August 31, via Facebook, an overwrought statement – borrowing from some of the submissions made by the AG’s counsel, Mr Batra: 

“Three judges – acting in a manner that raise substantial questions about their judicial integrity …”

The appeal decision was an “autocratic mandate” and an “attack on the rule of law”. 

Lambourne had a “fraudulent scheme to raid the treasury”. The judgment was a “judicial coup”. 

“The government of Kiribati will continue to stress that it is vital that judicial integrity underpin judicial independence, so the rule of law does not become a vehicle for autocratic judicial tyranny that robs our good and honest people of their sovereignty …”

The final flourish is a corker: 

“The government will continue to honor the ‘rule of law’ and preserve and protect the customs and traditions, the Constitution and laws of Kiribati, and defend judicial independence even from members of the bar and bench who seek to convert the Sovereign Independent Republic of Kiribati into a judicial tyranny, as Nuremberg Judges did by aiding and abetting Nazi Germany.”

If you want more, it’s here. 

Being a former British colony, Kiribati is a member of the Commonwealth. However, at the time it was trying to remove Lambourne as a judge, the country withdrew its membership of the Pacific Island Forum. 

The official reason from the government is that the forum had not sufficiently addressed the concerns of Micronesian countries. 

Last year, Micronesian leaders threatened to leave the PIF after a Polynesian candidate was appointed secretary general, despite a “gentleman’s agreement”. 

Into this enmity stepped Tessi Lambourne, wife of Kiribati’s suspended judge. She had been the country’s top diplomat, secretary to cabinet, a former ambassador to Taiwan and now the country’s leader of the opposition. 

She said the real reason for Kiribati’s withdrawal from the forum was due to influence from China. She said the government was greatly indebted to the Chinese, who are gaining a strong foothold in the region. 

In circumstances were Kiribati was throwing its lot in with China, and the opposition leader is claiming this is an embarrassment for her country, it might make sense to make it as hard as possible for her husband to reenter the country, let along remain a judge.

If David Lambourne could be rusticated, his wife would then face invidious choices. 

The International Bar Association’s Human Rights Institute, the Australian Judicial Officers Association, the Australian Bar Association and the Law Council of Australia have all condemned the government of Kiribati’s attack on the country’s judicial independence.