Why Australian and New Zealand judges rule over small Pacific nations

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 had been born there.

To some, the elevation of Attorney-General Tetiro Semilota to the role of acting chief justice was a historic moment. But to others, it was deeply contentious, because of how her new job had come open: the government she serves had removed her predecessor and four other high-level judges, all of them foreigners.

The dispute in Kiribati highlights a curious phenomenon among Pacific island nations. Domestic courts are often stocked with non-citizen judges, a legacy of colonialism that has periodically flared into conflict in recent years, and has now left Kiribati without a functioning judiciary for months.

All three Australian judges on Hong Kong’s court Robert French, Murray Gleeson and William Gummow, are former High Court judges.Credit:Fairfax Media

The region is not the only one with foreign judges. They serve on courts in Hong Kong, the Caribbean, Africa and small European nations. Last week Patrick Keane, a former Justice of the High Court of Australia was appointed as a non-permanent judge on Hong Kong’s Court of Final Appeal.

But they are perhaps most widespread in the Pacific. In the nine Pacific nations that are part of the Commonwealth, more than three-fourths of the judges in the past two decades have been foreigners, said Anna Dziedzic, an expert on Pacific judiciaries at the University of Melbourne.

These judges are mostly from Australia and New Zealand, and occasionally from Britain. They deal not just with technical legal issues but, sometimes, with weighty constitutional questions that have political ramifications. The nations that appoint them, 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 tight-knit communities.

President Taneti Maamau of Kiribati addresses the United Nations General Assembly in New York, Sept. 22, 2022. Kiribati has accused foreign-born judges, who hold offices in Kiribati and a number of Pacific island nations, of trying to undermine their sovereignty.Credit:Dave Sanders/The New York Times

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

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

Aware 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 authors’ original intent, which makes them less likely to make decisions that create social change, Dziedzic said.

Their presence is also part of a broader challenge that Pacific nations face as they consider how to calibrate legal systems that draw on both Indigenous customs and Western legal traditions that were imported during colonisation.

In recent years, Samoa, for example, has enacted sometimes contentious constitutional changes to “put more Indigenous customary Samoan values into the constitution to balance what they saw as a kind of Western influence,” Dziedzic said.

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

Samoa’s district courts and Supreme Court are now fully staffed by local judges, he said, a shift that has been broadly welcomed by the public. The next step, he said, will be to localise the highest bench, the Court of Appeal, whose three current judges are from New Zealand.

“That’s what, I suppose, any country like ours is aspiring to: that one day, all our courts will be manned by local judges,” he said.

Those foreign judges who remain in Pacific nations can face political vulnerabilities and questions of allegiance that local judges do not have to contend with.

Kiribati is just one of the countries that have tried to remove foreign judges. In 2014, Nauru deported its only magistrate and cancelled the visa of its chief justice. The same year, the island nation of Timor-Leste dismissed all foreign judicial staff members and ordered five judges, two prosecutors and one adviser to immediately leave the country. Critics in both instances said the government’s actions were politically motivated.

Former Kiribati High Court Justice David Lambourne (right) in 2019 with Sir John Baptist Muri, former chief justice of the High Court of Kiribati.Credit:Pacific Islands Legal Information Institute

As to Kiribati, the president suspended the five high-level foreign judges after they either challenged the government or made rulings against it over actions they deemed unlawful. In response, the president, Taneti Maamau, accused them of being “neocolonial” actors trying to undermine Kiribati’s sovereignty.

At the centre of the crisis is David Lambourne, an Australian who became a High Court judge in the island nation in 2018. Lambourne said the appointment had been uncontroversial until his wife, Tessie Lambourne, a native of Kiribati, became the country’s opposition leader in 2020. After that, the government tried to limit the length of his appointment, which he said had carried no fixed term.

In 2021, 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 lodged a court appeal, calling the move unconstitutional.

The chief justice at the time, William Hastings, a current New Zealand judge seconded to Kiribati ruled in Lambourne’s favour – and was then suspended by the government over allegations of misconduct, along with Lambourne.

Lambourne was locked out of Kiribati during the pandemic but was able to return on a visitor’s visa in August 2022. After he arrived, the government twice tried to deport him, once accusing him of posing an unspecified security threat. In both instances, the deportation was stopped by the Court of Appeal, staffed by three judges from New Zealand.

In September, the government suspended all three appeals court judges, leaving the nation of 120,000 people with no judges above the magistrate level.

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

“It is disheartening to see neocolonial forces weaponising the laws that have been enacted to protect a Kiribati person to pursue their own interest, and suppress the will of the people,” he said in a statement.

Semilota’s appointment to acting chief justice “meets the judiciary’s aspiration over the past few years to localise this important position,” a spokesperson for Maamau said in an emailed statement.

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

“I believe that this is an attempt by the government to force me out of the office and force me out of Kiribati in the very misguided belief that if I wasn’t here, Tessie would have to leave politics,” Lambourne said in a telephone interview.

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

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

Tess Newton Cain, project leader of the Pacific Hub 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 unlawfully or acts in ways that restrict democratic process, there’s nowhere to go to have that decision or exercise of power challenged,” she said.

The Kiribati government’s actions have been criticised by legal and human rights bodies. Diego García-Sayán, the United Nations’ special rapporteur on the independence of judges and lawyers, called the suspension of the judges without due process “a huge blow to judicial independence.”

This article originally appeared in The New York Times.

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