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 born there.
For some, the elevation of Tetiro Semilota, the attorney general, to acting chief justice was a historic moment. But for others it was deeply controversial, because of the way her new post had opened up: the government she serves had sacked her predecessor and four other top judges, all foreigners.
The dispute in Kiribati highlights a curious phenomenon among Pacific island nations. National courts are often filled with non-citizen judges, a legacy of colonialism that has periodically escalated into conflict in recent years, and has now left Kiribati without a functioning court system for months.
The region is not alone in having foreign judges. They sit in courts in Hong Kong, the Caribbean, Africa and smaller European countries.
But they are perhaps more prevalent in the Pacific. In the nine Pacific countries that are part of the Commonwealth, more than three-quarters of judges over the past 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 ever-increasing number of local judges are being appointed. But in smaller countries like Kiribati, Tuvalu and Nauru, the courts – especially at the top level – are still mostly made up of foreign judges.
“The main reason why Pacific countries use foreign judges is simply that they lack qualified citizens ready to take up judicial office,” Dr Dziedzic said. Local residents were not appointed to government posts during the colonial era and were rarely able to acquire legal qualifications, she added.
These judges come mainly from Australia and New Zealand, and sometimes from Great Britain. They deal not only with technical legal issues, but also sometimes with important constitutional issues that have political ramifications. The nations that appoint them, Dr Dziedzic said, often believe their presence elevates a court’s legitimacy or that they are more impartial than local judges who may have ties to tight-knit communities.
Conscious of their position as outsiders, foreign judges tend to focus on interpreting the text of a country’s constitution according to what they consider to be the original intention of the framers, which makes them less likely to make decisions that create social change, Dr. Dziedzic said.
Their presence is also part of a larger challenge facing Pacific nations as they consider how to calibrate legal systems that draw on both indigenous customs and Western legal traditions that have been imported. during colonization.
In recent years, Samoa, for example, has enacted sometimes controversial constitutional changes to “introduce more indigenous customary Samoan values into the Constitution to balance what they saw as a kind of Western influence”, said the Dr. Dziedzic.
Patrick Fepulea’i, a Samoan lawyer, said that although local judges were sometimes less experienced than foreign judges, they were better equipped to deal with issues related to local customs and traditions.
District courts and the Supreme Court in Samoa are now made up entirely of local judges, he said, a change that has been widely welcomed by the public. The next step, he said, will be to locate the highest court, the Court of Appeal, whose current three judges are New Zealanders.
“That’s what I guess any country like ours aspires to: that one day all our courts will have local judges,” he said.
Foreign judges who remain in Pacific countries may face political vulnerabilities and issues of allegiance 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 peace-loving nation of Nauru expelled its only magistrate and revoked the visa of its chief justice. In the same year, the island nation of Timor-Leste fired all foreign judicial personnel and ordered five judges, two prosecutors and a counselor to leave the country immediately. Critics in both cases said the government’s actions were politically motivated.
In the case of Kiribati, the president suspended the five top foreign judges after they challenged the government or issued rulings against it over actions they deemed illegal. In response, the President, Taneti Maamau, accused them of being “neo-colonial” actors trying to undermine Kiribati’s sovereignty.
At the center of the crisis is David Lambourne, an Australian who became a High Court judge in the island nation in 2018. Mr Lambourne said the appointment was not controversial until his wife, Tessie Lambourne, originally from Kiribati, becomes the country’s opposition. leader in 2020. After that, the government tried to limit the duration of his appointment, which he said had no fixed term.
Last year, the government informed him that he would not get another work visa unless he signed a new contract limiting his appointment to three years, according to court documents. He filed an appeal in court, calling the decision unconstitutional.
Then-Chief Justice William Hastings, a retired New Zealand judge, ruled in favor of Mr Lambourne – and was later suspended by the government over allegations of misconduct, along with Mr Lambourne.
Mr Lambourne was barred from Kiribati during the pandemic but was able to return on a visitor’s visa in August this year. After his arrival, the government twice tried to deport him, once accusing him of posing an unspecified security threat. In both cases, the eviction was stopped by the Court of Appeal, made up of three retired New Zealand judges.
In September, the government suspended the three appeals court judges, leaving the nation of 120,000 without judges above the bench level.
Mr Maamau has accused the hung judges, in numerous public statements, of trying to shore up their own power by helping secure a lifetime appointment for Mr Lambourne.
“It is disheartening to see neo-colonial forces weaponize laws that were enacted to protect a Kiribati person to pursue their own interests and suppress the will of the people,” he said in a statement.
The appointment of Ms. Semilota as acting chief justice “responds to the aspiration of the judiciary over the past few years to locate this important position,” a spokesperson for Mr. Maamau said in a statement sent by mail. electronic.
Mr Lambourne said the government’s actions were politically motivated and targeted his wife, who strongly criticized Mr Maamau’s moves to align Kiribati with China and withdraw from key regional bodies.
“I believe this is an attempt by the government to force me out of office and force me out of Kiribati in the very mistaken belief that if I wasn’t here Tessie would have to leave politics,” Mr. Lambourne said in a telephone interview.
He added that the five foreign judges had been appointed by Mr. Maamau, 62, who had 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,” Mr Lambourne said.
Tess Newton Cain, Pacific Hub project manager at Australia-based Griffith Asia Institute, said the crisis raised concerns about the state of democracy in Kiribati.
Without a functioning judicial system to check the government, “if the government exercises power illegally or acts in a way that restricts the democratic process, there is nowhere to go to challenge that decision or exercise of power,” he said. she declared.
The actions of the Kiribati government have been criticized by legal and human rights bodies. Diego García-Sayán, the UN special rapporteur on the independence of judges and lawyers, called the suspension of judges without due process “a blow to judicial independence”.