Kiribati is in the midst of a constitutional crisis after its government detained one of its most senior judges, Australian citizen David Lambourne, after a failed attempt to deport him.
Despite an order from the Kiribati court of appeal that Lambourne should not be removed from the country, police and immigration officials sought to forcibly deport him at Bonriki international airport on Thursday.
Lambourne was only saved from deportation when the Fiji Airways captain refused to take the judge on board, given his unwillingness to travel. After a standoff of several hours on Thursday afternoon, during which the plane remained on the runway, the flight departed without Lambourne.
The judge was subsequently detained and taken to motel-style accommodation near the airport. It was unclear whether the government would attempt to deport Lambourne on the next flight to depart the island, on Sunday.
The separation of powers dispute escalated on Thursday morning when officials arrived at Lambourne’s residence in Tarawa, the capital, in the early hours with a deportation order and a same-day airline ticket to Fiji. After an urgent application by Lambourne, the court of appeal ordered the government not to deport the judge.
“This is a devastating assault on the rule of law in Kiribati,” Lambourne told the Guardian as he was awaiting deportation. It is the first time the judge has spoken publicly about the saga.
Kiribati has been in the midst of a dramatic battle between the government and the independent judiciary. In late 2021 Lambourne, who is married to the opposition leader, Tessie Lambourne, won a high court constitutional claim against the government, which had refused to allow him to return to the Pacific country and sought to end his tenure of him.
“In defying a clear order of the high court the government of Kiribati is demonstrating its contempt for the constitution and the judiciary,” he said. “The government is also displaying its blatant disregard for the rights of the ordinary people of Kiribati, by denying them a functioning court system.”
Lambourne is a longtime resident of Kiribati and was formerly its solicitor general. Kiribati’s attorney general subsequently appealed against the ruling to the court of appeal, and in May suspended Lambourne, citing unspecified misconduct allegations. Lambourne engaged Australian barristers Perry Herzfeld SC and Daniel Reynolds to contest his suspension of him.
In late June, as the nation’s chief justice, New Zealand judge William Hastings was about to begin hearing a constitutional challenge by Lambourne to his suspension, the government also suspended Hastings. There is currently no functional high court in Kiribati.
The government’s appeal against the original ruling was due to be heard on Thursday, by a court of appeal consisting of retired New Zealand judges. But on Wednesday, the government drew the appeal.
In a letter filed with the court of appeal discontinuing the proceedings, Ravi Batra, a New York-based lawyer representing the Kiribati government, claimed the government had vacated the original decree appointing Lambourne. It is unclear how such a step would be constitutional.
“All those who are aiding and betting David Lambourne to engage in an attempted unconstitutional judicial coup are subject to an appropriate investigation by the attorney general and may receive lawful rebuke, civil and/or criminal,” the letter stated.
The commission of two court of appeal judges expires later this month, and under the Kiribati constitution they can only be replaced with the involvement of the chief justice. With Hastings suspended, it is likely Kiribati will soon have no functioning court of appeal. Appeals to the privy council in Britain are only available in certain narrow circumstances.
The Guardian has approached the attorney general for comment.
The saga has parallels to a 2014 fiasco in Nauru, when the government canceled the visa of its chief justice, Australian Geoffrey Eames. The judge was forced to resign and described the move as an abuse of the rule of law. The use of foreign judges in the Pacific is common, but leaves them vulnerable to the use of visa restrictions to undermine judicial independence.
The Guardian understands that Lambourne re-entered Kiribati this month on a visitor visa, having received assurances from immigration officials that he would be issued a work visa once in the country.