Kiribati: IBAHRI condemns escalation in disregard for judicial independence as all three Court of Appeal judges are suspended
Wednesday 7 September 2022
The suspension of three sitting Court of Appeal judges by the government of the Republic of Kiribati is condemned by the International Bar Association’s Human Rights Institute (IBAHRI) for escalating the judicial and constitutional crisis facing the Pacific Ocean island. The judges had delivered a ruling blocking the deportation of suspended High Court Judge David Lambourne, an Australian citizen. Kiribati is now without a functional High Court jurisdiction, posing a critical threat to the right to access to justice, finality of the administration of justice and the rule of law as well as (vitally) independence of the judiciary.
Reports indicate that the three suspended Court of Appeal judges – Peter Blanchard, Rodney Hansen and Paul Heath, all retired New Zealand judges – are being referred to a tribunal to be established by the Kiribati government to determine whether they should remain in office.
IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, commented: ‘As a member of the Commonwealth, Kiribati has agreed to uphold the Commonwealth values, including the Commonwealth Charter. The Charter recognises the separation of powers (Principle 6) and highlights the need for ‘‘an independent, impartial, honest and competent judiciary and recognises that an independent, effective and competent legal system is integral to upholding the rule of law, engendering public confidence and dispensing justice’ (Principle 7).’’ A fully functioning, independent judiciary is fundamental to the rule of law, and the IBAHRI strongly opposes any action that threatens this as in the case of Kiribati.’
In May 2022, Judge Lambourne was suspended. The following month, Chief Justice Bill Hastings was suspended. Both suspensions over allegations of misconduct have been met with opacity and a paucity of details of the foundation of any allegations. It is noted that, Justice Hastings was suspended on the day that he had been due to hear a constitutional challenge brought by Judge Lambourne on his own suspension. The hearing could not then proceed.
In August 2022, the situation worsened when reports surfaced of an attempted forced deportation of Judge Lambourne from Kiribati to Fiji, despite an existing order from the Kiribati Court of Appeal that stated he should not be removed from the country. The deportation was foiled when the airline refused the boarding of the would-be ‘passenger’ against his will. The government then declined to allow the flight to depart without Judge Lambourne but, eventually, the aeroplane departed without the judge onboard. He was subsequently held in detention.
IBAHRI Co-Chair Mark Stephens CBE stated: ‘The IBAHRI is alarmed by, and condemns, the measures taken against Judge Lambourne, Justice Hastings and their colleagues. The United Nations Basic Principles on the Independence of the Judiciary (1985) and the Commonwealth Latimer House Principles require States to guarantee protection against arbitrary disciplinary measures and interference in judicial proceedings. The IBAHRI finds it deeply troubling that the investigations conducted in Kiribati are not ensuring due process guarantees and that authorities have acted in contravention of a judicial order of the Court of Appeal of Kiribati. The IBAHRI urges the government of Kiribati to respect the separation of powers and ensure independence of the judiciary by complying with due process and court orders.
‘The “separation of powers” is a concept, is so fundamental, as it is so firmly established in both Kiribati law and international law: it is as old as Montesquieu, who was the first to have articulated it in his great work “De L'Esprit des Loix” (On the Spirit of the Laws), published in 1748, and has been embedded in the law of all nations ever since. On numberless occasions the primacy of “the accountability of, and the relationship between, the three independent branches of government: the executive, the legislature and the judiciary has been identified as cornerstone of a functioning democracy.
‘These cherished ancient principles of law were specifically (and unanimously) renewed by the Commonwealth (including Kiribati) Heads of Government in Abuja in 2003, strengthening the existing body of laws in the Commonwealth as set down in Singapore in 1971, Harare in 1991, and Millbrook in 1995. This reflects in the Latimer House Principles and The Commonwealth Charter, and has been formally adopted by Commonwealth partner organisations, Commonwealth Law Ministers, senior officials and the Commonwealth legal community. Because the rule of law sits alongside democracy and human rights as the key beliefs of any civilised society.'
Furthermore, Mark Stephens CBE called upon every Commonwealth member to continuously pose itself the questions: ‘How well does it observe the separation of powers? Do our executives respect the freedom of the legislature and the judiciary to discharge their responsibilities? In other words, does the state properly believe in the judiciary's independence and power, as a key element of the balance of power and restraining overreaching and abuse by the executive?’
It has been suggested that Kiribati’s President Taneti Maamau, in addition to attacking judicial independence, is also attempting to strip Justice Lambourne, who is married to opposition leader Tessie Lambourne, of his tenure. President Maamau claims that Judge Lambourne was appointed to the High Court in 2018 on a fixed three-year term contract, rather than for life. Judge Lambourne disagrees. The Commonwealth (Latimer House) Principles, which provide a roadmap for democracy and good governance for Commonwealth countries, address the need for appropriate security of tenure and protection for judges. The Principles also set out the requirement for disciplinary measures to follow the appropriate procedure in order to assure fairness (Principle IV).
ENDS