Thursday, December 2

Kiribati’s attempts to keep an Australian judge stranded out of the country declared unconstitutional | Kiribati

A landmark ruling in the Pacific country of Kiribati ruled that government actions to prevent an Australian, a Kiribati high court judge, from returning to the island were unconstitutional.

When David Lambourne left Kiribati in February 2020 to attend a conference in Australia, he thought it would be a short and uneventful trip. Instead, the Australian judge, who has resided in the Pacific nation for more than two decades, was left stranded after the impact of Covid-19.

For the next 21 months, Lambourne has been unable to return home and has been embroiled in a major constitutional controversy.

Over the past year, the Kiribati government has taken a series of measures to prevent Lambourne from resuming his post in the capital, South Tarawa. The government has tried to undermine the judge’s lifetime mandate, stopped paying his salary and refused to issue a continuous work permit or allow him to board a repatriation flight.

Last Thursday, the saga reached a climax with a landmark trial by the Chief Justice of the nation, William Hastings, which concluded that the government’s actions had been unconstitutional.

The ruling has been hailed as a victory for judicial independence in the region, amid concerns about institutional decline in several Pacific nations.

“It is important to put this case in context,” Hastings said in his written reasons. “It involves the separation of powers, the rule of law, and an independent judiciary, all of which are fundamental constitutional principles.”

Lambourne, a former Kiribati attorney general, was appointed to the high court in 2018, with no specified term limit. After spending most of 2020 in Australia, Lambourne traveled to Fiji to wait for a seat on one of the repatriation flights operating to Kiribati.

But while in Fiji, Lambourne was told that the Kiribati government would only issue a work permit to allow him entry if he signed a three-year retroactive contract (which would cause his appointment to end in June). He initially refused, but eventually signed under duress after the government stopped paying his salary and refused to allow him on any of the eight repatriation flights.

In August, after his salary ceased again, Lambourne sued Kiribati Attorney General Tetiro Semilota.

Last Thursday, the president of the Supreme Court confirmed the assertion of his colleague. Hastings maintained that Lambourne had been appointed for life and as such the contract and legislation were unconstitutional, and ordered immigration authorities to facilitate Lambourne’s return to the country.

“The high court’s decision is a significant declaration of the principles of judicial independence embodied in the Kiribati constitution,” said Anna Dziedzic, an expert on the Pacific at the University of Hong Kong School of Law. “It defends constitutional protections of judicial tenure and addresses some of the vulnerabilities of foreign judges to undue executive interference.”

Dziedzic said the use of foreign judges was common in the Pacific and raised peculiar constitutional concerns. Because non-citizens are bound by local immigration rules, judicial independence can be thwarted by the misuse of immigration powers by governments. In 2014, another Australian, Geoffrey Eames, then Chief Justice of Nauru, had his visa canceled and he was forced to resign in circumstances that Eames described as an abuse of the rule of law.

“While the case is not binding in other countries, it sets out important principles and solves problems that arise in other Pacific countries that use foreign judges and, as such, it is a valuable precedent,” added Dziedzic.

In his opinion, the president of the Supreme Court said that he would give the government “the opportunity” to show “good faith” in complying with the ruling.

Lambourne declined to comment. The case has added political significance because Lambourne’s wife, Tessie Lambourne, is the leader of the opposition in the Kiribati parliament.

In response to questions from The Guardian, the Kiribati attorney general redoubled his government’s desire that Lambourne be removed from office. “The government still wants to correct the appointment,” said Tetiro. “It was never known that it would be for life … We will work to correct this appointment by following the avenues available, whether to appeal to the appeals court or to change the constitution.”

The government has six weeks to go to the court of appeal.

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