Kiribati is embroiled in a constitutional crisis after the government suspended its chief justice, leaving the judiciary in disarray as experts raise concerns about the rule of law. The move escalates an ongoing controversy over separation of powers in the Pacific nation, after Kiribati’s only other high court justice, Australian David Lambourne, was suspended in May.
On Thursday the chief justice, distinguished New Zealand judge William Hastings, was due to begin hearing a legal challenge brought by Lambourne. The suspended judge was seeking initial orders restoring his salary and facilitating his return to the country, ahead of a constitutional challenge to the suspension.
Yet rather than commence the hearing, Hastings read out a letter from the government stating that he too had been suspended with immediate effect pursuant to the Kiribati constitution. The remarkable development was first reported by the Kiribati Newsroom.
The stated reason for the suspensions of Hastings and Lambourne are allegations of misbehaviour, with a tribunal established to investigate. However, the substance of the allegations have not been made public, leaving observers concerned about the veracity of the claims. Lambourne has engaged lawyer Kiata Kabure in Kiribati and leading Australian barristers Perry Herzfeld SC and Daniel Reynolds to represent him in the case.
“The protracted dispute between judges and the executive clearly raises concerns for judicial independence,” said Anna Dziedzic, an expert on Pacific judiciaries at Melbourne Law School.
In its reporting, Kiribati Newsroom – a digital newspaper published by local journalist Rimon Rimon (an occasional Guardian contributor) – noted that the “ongoing saga” raised concerns “about the status of the rule of law in Kiribati and the independence of the judiciary to carry out its function”. With the pair suspended, the Kiribati high court is effectively judge-less and unable to hear cases.
Late last year, Guardian Australia reported that Lambourne, formerly the nation’s solicitor general, and husband to opposition leader Tessie Lambourne, had succeeded in a constitutional claim against the Kiribati government. Lambourne was stuck in Australia after Covid-19 hit and the government had refused to allow him to return home, stopping his salary, refusing to issue a work permit and undermining his tenure of appointment.
Hastings, at the time newly appointed on secondment from the New Zealand district court, found that the government’s actions were unconstitutional and ordered it to facilitate Lambourne’s return. An appeal by the Kiribati government is due to be heard by the court of appeal, a body consisting of three retired New Zealand judges, later this month.
But in May, the government escalated the crisis when it suspended Lambourne over “complaints and allegations from the public … for his inability to perform functions of his office and his misbehaviour”. In court documents seen by Guardian Australia, it is clear that the allegations against Lambourne are political in nature.
The complaint, made by members of the ruling party, Tobwaan Kiribati Party, was forwarded to the government by Betero Atanibora, an MP and chair of the Tobwaan party. The complaint alleges that Lambourne was slow in determining cases, including one high-profile case involving the government. Another ground of complaint involves Lambourne’s earlier constitutional challenge.
“We disagree with David Lambourne’s undertaking when he sued the government for terminating his appointment,” read the complaint. “Even though the high court found in his favour, we still consider this as unjust.”
Following Lambourne’s suspension, the Commonwealth Magistrates’ and Judges’ Association, Commonwealth Legal Education Association and Commonwealth Lawyers Association issued a joint statement expressing “great concern” at the opaque investigation and urged the Kiribati government to respect judicial independence.
Lambourne and Hastings both declined to comment. Guardian Australia sought comment from the Kiribati attorney general, but did not receive a response by the time of publication.
However, in a Facebook post on Friday, the office of the president of Kiribati criticised the joint statement from the three Commonwealth legal bodies. The statement said that the government was “troubled” by the intervention: “Kiribati is a sovereign Republic and a long-standing member of the Commonwealth Family and would expect courtesy in sharing of information.”
The statement added that the misconduct investigation against Lambourne would work “in line with the principles of natural justice”.
New Zealand’s Ministry of Foreign Affairs and Trade, which part-funds the chief justice’s position, told Guardian Australia it was aware of the latest development and was seeking further information from the Kiribati government.
Kiribati has recently been at the centre of a geopolitical storm as China looks to increase its influence in the region. In 2019 the Pacific nation ended diplomatic relations with Taiwan and formally recognised China. Kiribati was the second nation visited by Chinese foreign minister Wang Yi during his tour through the Pacific in May.
