This Country’s Top Judges Were All Foreigners. Now They’re Gone.

Until just a few weeks ago, the Pacific island nation of Kiribati, an independent country for more than four decades, had never had a chief justice who was born there.

For some, the elevation of Tetiro Semilota, the attorney general, to the position of acting president of the Supreme Court was a historic moment. But to others, he was deeply controversial, because of how his new job opened up: The government he serves had ousted his predecessor and four other high-level judges, all foreigners.

The dispute in Kiribati highlights a curious phenomenon among Pacific island nations. Domestic courts are often packed with non-citizen judges, a legacy of colonialism that has periodically erupted into 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 perhaps they are more widespread in the Pacific. In the nine Pacific nations that are part of the Commonwealth, more than three quarters of judges in the last two decades have been foreigners, said Anna Dziedzic, an expert on Pacific justice systems at the University of Melbourne.

In some of the larger Pacific island nations, such as Vanuatu, the Solomon Islands and Samoa, an increasing number of local judges are being appointed. But in smaller nations like Kiribati, Tuvalu and Nauru, the courts, particularly the highest-level ones, are still staffed primarily by foreign judges.

“The main factor why Pacific nations use foreign judges is simply that they have a shortage of qualified citizens who are willing to take up judicial positions,” said Dr. Dziedzic. Local residents were not appointed to government posts during colonial times and were rarely able to obtain legal qualifications, he added.

These judges are mostly from Australia and New Zealand, and occasionally from Great Britain. They deal not only with technical legal issues, but sometimes with important constitutional issues that have political ramifications. The nations that appoint them, Dr. Dziedzic said, often believe that their presence elevates a court’s legitimacy, or that they are more impartial than local judges who may have connections in close-knit communities.

Conscious 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 original intent of the authors, making them less likely to make decisions 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 that were imported during colonization.

In recent years, Samoa, for example, has enacted sometimes controversial laws constitutional changes to “put more traditional indigenous Samoan values ​​into the Constitution to balance what they saw as a kind of Western influence,” Dr. Dziedzic said.

Patrick Fepulea’i, a Samoan lawyer, said that although local judges are sometimes less experienced than foreign ones, they are better equipped to handle matters related to local customs and traditions.

Samoa’s district courts and Supreme Court now have entirely local judges, he said, a change that has been widely welcomed by the public. The next step, she said, will be to locate the highest court, the Court of Appeal, whose current three judges are from New Zealand.

“That is what, I suppose, any country like ours aspires to: that one day all our courts will be made up of local judges,” he said.

Foreign judges remaining in Pacific nations 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 only magistrate and canceled the visa of its Chief Justice. The same year, the island nation of Timor-Leste fired all foreign judicial personnel and ordered five judges, two prosecutors, and one assessor to immediately leave the country. Critics in both cases said the government’s actions were politically motivated.

In the Kiribati case, the president suspended the five high-level foreign judges after they challenged the government or handed down sentences against it for actions they deemed illegal. In response, the president, Taneti Maamau, accused them of being “neocolonial” actors trying to undermine Kiribati’s sovereignty.

At the center of the crisis is David Lambourne, an Australian who became a judge on the island nation’s High Court in 2018. Lambourne said the appointment had not been controversial until his wife, Tessie Lambourne, a native of Kiribati, became in the country’s opposition. leader in 2020. After that, the government tried to limit the length of his appointment, which he said had no fixed term.

Last year, the government informed him that he would not be granted another work visa unless he signed a new contract limiting his appointment to three years, according to court documents. He filed a judicial appeal, calling the measure unconstitutional.

The Chief Justice at the time, William Hastings, a retired New Zealand judge, ruled in favor of Mr. Lambourne – and then was suspended by the government on misconduct allegations, along with Mr Lambourne.

Lambourne was unable to enter Kiribati during the pandemic, but was able to return on a visitor visa in August this year. After his arrival, the government twice attempted to deport him, once accusing him of posing an unspecified security threat. In both cases, the deportation was stopped by the Court of Appeal, made up of three retired New Zealand judges.

In September, the government suspended all three appeals court judges, leaving the nation of 120,000 without judges above the magistrate level.

Mr Maamau accused the suspended judges, in numerous public statements, of trying to consolidate their own power by helping to secure a lifetime appointment for Mr Lambourne.

“It is disheartening to see neo-colonial forces weaponize the laws that have been enacted to protect a Kiribati person to pursue their own interests and suppress the will of the people,” he said in a statement. a declaration.

The appointment of Ms. Semilota as interim Chief Justice “fulfills the aspiration of the judiciary in recent years to locate this important position,” a spokesperson for Mr. Maamau said in an emailed statement.

Lambourne said the government’s actions were politically motivated and directed at his wife, who has been a vocal critic of Mr. Maamau’s moves to align Kiribati with China and withdraw from key regional bodies.

“I think 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,” Lambourne said in a telephone interview.

He added that the five foreign judges had been appointed by Mr. Maamau, 62, who has been president for six years.

“For him to turn around now and say ‘it’s all these whites trying to protect each other’ is nothing more than blatant racism on his part,” Lambourne said.

Tess Newton Cain, Pacific Hub project leader at the Australia-based Griffith Asia Institute, said the crisis raised concerns about the state of democracy in Kiribati.

Without a functioning judiciary to keep the government in check, “if the government exercises power illegally or acts in a way that restricts the democratic process, there is nowhere to go for that decision or the exercise of power to be questioned,” he said.

The Kiribati government’s actions have been criticized by human rights and legal bodies. Diego García-Sayán, UN Special Rapporteur on the independence of judges and lawyers, I call the suspension of judges without due process “a severe blow to judicial independence.”