Kiribati’s constitutional crisis is no closer to resolution, with the country’s court of appeal criticising the government for its conduct towards suspended high court judge David Lambourne, an Australian citizen.
In an extraordinary judgment on Friday, the appeals court – consisting of three retired New Zealand judges – upheld an earlier decision that had found efforts to undermine Lambourne’s tenure unconstitutional. Lambourne is a longtime resident of Kiribati and formerly the nation’s solicitor general. His wife, Tessie Lambourne, is the opposition leader.
The crisis has raised significant concerns over separation of powers and rule of law. In its written judgment on Friday, the court ruled that government orders to deport Lambourne were invalid and should be quashed. The judge had been briefly detained following the unsuccessful deportation earlier this month; the court had ordered his release in an interim ruling and confirmed this order on Friday.
After its failed initial deportation effort, the Kiribati government had issued new paperwork to deport Lambourne on the grounds that he was a threat to national security. The court also invalidated this order.
“Frankly, we found the notion that Mr Lambourne is actually a security risk to be far-fetched,” the judgment read. “There is a distinct appearance that, realising its weakness on the first deportation order, the government simply tried to patch things up by reaching for the ‘threat or risk to security’ criterion.”
The court ordered that Lambourne’s passport be returned to him, and held that the Kiribati government should pay the judge’s legal costs. Lambourne was represented by Sydney barristers Perry Herzfeld SC and Daniel Reynolds.
“The attorney general’s approach on the present appeals is, to say the least, unorthodox, but then again the present circumstances are most unusual, with the relevant operations of the high court paralysed by the suspension of both its judges,” said the court.
Kiribati’s chief justice, New Zealand judge William Hastings, was suspended in late June just as he was due to begin hearing a constitutional challenge brought by Lambourne to his own suspension. Both judges have been suspended on unspecified allegations of misconduct.
With the appointment of two court of appeal judges having lapsed, and the government unable to appoint new judges without the input of the suspended chief justice, the Kiribati judiciary is presently dysfunctional. The court could continue to hear the Lambourne case only because it was already under way.
In its lengthy written reasons, the court described submissions from the attorney general’s lawyer, New York attorney Ravi Batra, that Lambourne or Hastings had acted fraudulently during the saga as “quite hopeless”. The court added: “It is considered unethical for counsel to make any allegation of fraud, let alone against a judge, without a solid foundation of proof.”
The attorney general was contacted for comment.