Separation of power crisis:
Since September 2022, Kiribati has been without any judges serving its superior courts. Chief Justice William Hastings and Justice David Lambourne of the High Court, and Justices Peter Blanchard, Rodney Hansen and Paul Heath of the Court of Appeal have all been suspended from office on the grounds of inability or misbehavior.
At the same time as the borders were closed during the Covid-19 pandemic, Kiribati’s parliament passed legislation that required all judges, new and existing, to be appointed for fixed terms.
At the heart of the issue is a dispute between the government, led by Beretitenti (President) Taneti Maamau, and David Lambourne, an Australian judge who has lived and worked in Kiribati since 1995. Lambourne was appointed a judge, but no term of appointment was specified in the instrument of appointment signed by the President, Maamau.
When Kiribati closed its borders during the Covid-19 pandemic, Lambourne was out of the country. And he was refused a place on repatriation flights. He was told he would not be allowed back until he signed a contract that retrospectively fixed the term of his judicial appointment at three years. At the same time, Kiribati’s parliament passed legislation that required all judges, new and existing, to be appointed for fixed terms.
David Lambourne seems targeted because his wife, Tessie Lambourne, being the leader of the opposition. In this political dispute, the judiciary became a collateral damage. The executive has demonstrated it is willing to exercise the constitutional power of suspension not for serious misbehaviour or incapacity, but because it does not agree with the court’s decisions.
Judicial independence and the rule of law have been undermined as the executive refuses to comply with court orders. The institution of the judiciary was not only inaccessible to the people of Kiribati, but a key mechanism as a functioning organ was removed. The Kiribati judiciary has been a pragmatic actor in the system of government, providing advisory opinions to clarify ambiguous constitutional provisions to facilitate governance, and in which, such constructive checks and balances on power was no more.
Kiribati’s superior courts have long been constituted by judges from Australia and New Zealand as well as from other Pacific states and common law African countries.
As non-citizens, foreign judges rely on the executive government to grant them a visa to enter and stay in the country, a status that can often be removed by exercise of discretion. Chief Justice Hastings’ judgment of November 2021 contains one of the strongest statements that balances the sovereign power of states to control entry and the protection of judicial independence when he held that the government’s discretion over visas must be exercised in a way that is consistent with the Constitution and the “special position” of a judge.
