Pacific island high courts are still dominated by foreign judges, but a constitutional crisis in Kiribati exposes the risks

A dramatic confrontation unfolded in Kiribati between the government and an Australian-born judge who worked in the country’s High Court.

Judge David Lambourne was suspended from duty for alleged misconduct in May, and now the government is trying to deport him and have his visa revoked.

As the husband of the country’s opposition party leader, he says the government’s actions are politically motivated.

The judge’s career is in limbo as he awaits a decision from the Court of Appeal on whether he can stay in the country he has lived in for 27 years.

His suspension, along with that of New Zealand-born Chief Justice William Hastings in June, left Kiribati without a functioning high court.

The cases have drawn attention to the role of foreign judges in the Pacific – and there are many.

So why do so many Pacific countries use foreign judges in their highest courts?

And what problems arise with their dates?

Last week, the Court of Appeal extended Judge Lambourne’s bail and reserved his decision.(ABC News: Rimon Rimon)

A cohort of largely Australian and New Zealand men

Dr Anna Dziedzic of the University of Melbourne said the use of foreign judges in the region is more common than people realize.

She is an expert on the justice system in the region and has conducted research on the use of foreign judges in Fiji, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.

“If you counted the judges serving in nine states in 2019 — that year alone — about three-quarters of superior court judges would be foreign judges,” Dr. Dziedzic told the ABC’s Pacific Beat program.

While the Pacific is not alone, countries rarely rely on non-nationals to be appointed to the highest national courts and decide constitutional issues, she said.

Foreign judges in the region come mainly from Australia and New Zealand, but also increasingly from Sri Lanka — and they are mostly men.

Dr. Dziedzic found that out of 225 foreign judges in the nine countries she studied, only 16 were women.

“Only 7% were women, and that clearly doesn’t reflect the community. It’s a very gendered cohort of foreign judges there,” she said.

“It’s partly a consequence of historical discrimination in countries where foreign judges are recruited…this cohort is very male-dominated.”

However, she found that among local judges, in some countries, the proportion of women is increasingly high.

Taneti Maamau, dressed in a suit, sits at a desk.  Behind him, flags and paintings.
Kiribati President Taneti Maamau has criticized the Court of Appeal for its interference in the deportation attempts. (AP: UN Web TV)

Foreign judges an easy target

Dr Dziedzic said foreign judges could be vulnerable to deportation and are often only appointed on fixed-term contracts.

“As a foreign judge, you are not a citizen, so you have no right to enter and stay in the country,” she said.

“You rely on immigration laws and visa clearances for the judge to actually enter the country and do their job as a judge. So that makes the judge vulnerable to removal.”

Countries in the region will appoint citizen judges with permanent job security or until a specific retirement age.

By placing foreign judges on fixed-term contracts, judicial independence can be compromised, Dr Dziedzic said.

This is what is happening in Kiribati.

The government has tried to strip Justice Lambourne of his term, saying he was appointed to the High Court in 2018 on a three-year fixed-term contract, rather than for life.

He was also charged with unspecified allegations of misconduct.

The Australian Law Council, the Commonwealth Lawyers Association and the Fiji Law Society are among the organizations that have strongly condemned the actions of the Kiribati government.

Fiji Legal Council chairman Wyle Clarke said the treatment of foreign lawyers was deeply concerning.

“Not having judges sitting on its high court is something that should be of grave concern,” Mr Clarke told the ABC’s Pacific Beat show.

“His [the government] effectively prevented this institution from functioning in this country.”

Since Kiribati’s attempt to expel Judge Lambourne on August 11 was halted by the Court of Appeal, the government has escalated its rhetoric against the judge and those it believes are working on his behalf.

During an appeal hearing last Friday, a submission from lawyers representing the Attorney General is accompanied by a threat from President Taneti Maamau.

The latter specifies that he can suspend the Court of Appeal if it has not “self-corrected”.

Nauru Courthouse
The Nauru government decides to sever ties with the Australian judicial system.(Provided)

The case of Judge Lambourne is a familiar story.

In 2014, Nauru expelled its only magistrate, Australian Peter Law, also alleging misconduct.

When the country’s Australian Chief Justice, Geoffrey Eames, intervened by issuing an injunction against Mr Law’s deportation, his visa was revoked.

Both believed the actions were politically motivated and an abuse of the rule of law.

Why use foreign judges in the first place?

The use of foreign judges in the Pacific began in colonial times when many countries adopted Western laws.

Former Kiribati President Anote Tong said it was still common in the country of around 119,000 people, as most residents wanted foreign judges in their courts to ensure impartiality.

“Kiribati is a small country and it sometimes feels like if a Kiribati High Court judge were appointed, it is more likely than not that he would have some sort of relationship with those involved,” he said. he declares.

“There is this lack of trust in the local judge by the people themselves. I think they want someone so independent that they should be appointed overseas.”

Former President of the Peaceful Nation of Kiribati, Anote Tong.
Anote Tong says residents often prefer to have foreign judges sitting in their high courts. (ABC News: Sarah Hancock)

Dr Dziedzic said that in addition to the argument of impartiality, there was often a shortage of qualified citizens to hold judicial office.

“It’s really kind of a gap-filling process, they need outside judges to run the courts,” she said.

Countries may also appoint foreign judges to “enhance the reputation of Pacific courts”, she added.

Tuvalu has never had a local judge in the superior courts and Kiribati has had only one since independence.

However, the situation has changed in some more populous Pacific countries.

Mr Clarke said that in countries like Fiji and Papua New Guinea there was a mix of foreign and local judges, while Samoa had taken steps to ensure that all district courts and the Supreme Court had local judges.

But at the appellate level, judges come from overseas to establish a standard of accountability for lower courts, Clarke said.

“The function of foreign judges there is important because it gives an additional level of control by independent judges.”

While the use of judges from outside the region may still be necessary for some countries, Dr Dziedzic said there is a growing number of Pacific island judges serving in different Pacific countries.

She said they shared some knowledge of the systems that judges in Australia and New Zealand “might not have such an understanding of”.

“Pacific legal systems include indigenous customary law – they are plural legal systems that have both common law status, but also indigenous customary law,” she said.

“Dealing with this kind of legal pluralism is something a Pacific island judge will potentially grasp more easily than a judge from a non-legal pluralist system like Australia.”

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