Kiribati’s Disorder in the Court

Kiribati’s Disorder in the Court

The Pacific island nation’s attempted deportation of an Australian-born judge shows how the decolonizing world’s reliance on foreign-born judges threatens nascent democracies.

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David Lambourne sat in the bare airport departure lounge in Kiribati, a nation of islands in the middle of the Pacific, and watched a curious standoff play out before him.

Just before dawn, immigration officers arrived at his home to escort Lambourne, an Australian-born judge of Kiribati’s High Court, to the airport and out of the country. The officers waited with him in the departure lounge as he watched a livestream on his phone of a panel of judges hearing his urgent appeal against the government’s deportation order.

After a short deliberation, the judges ordered a halt, which the immigration officers ignored. The government continued pressuring the pilot of that day’s only flight to let Lambourne board. But the pilot was reluctant, and if the plane were delayed past 3:45 pm, it would remain in Kiribati overnight.

A few minutes before that deadline, the government blinked. The plane sped down the runway and Lambourne rushed to his car, only for the officers to stop him: They explained that they were detaining him until another flight arrived. They drove him to a motel and stationed a guard outside his room. The only person allowed to see Lambourne was his wife: Tessie Lambourne, the leader of the country’s opposition. By deporting David, Kiribati President Taaneti Maamau apparently hopes to force her out too.

The crisis reveals a profound weakness in many former British colonies: Since independence, they have developed democratic governments dominated by indigenous politicians, but inherited judicial systems controlled by foreign-born white judges. While maintaining these systems helps guarantee independent judiciaries and the rule of law, they often seem like an antidemocratic, neocolonial hangover.

For demagogic politicians like Maamau, attacking the judiciary by appealing to anti-colonial sentiment is an effective tactic in a power grab. Similar crises have occurred in Fiji and Nauru. “It makes me an easy target,” says Lambourne, raising questions about how foreign-born officials should wield power in the decolonizing world—or whether they should hold power at all.

This problem is concentrated among former British colonies in the Pacific, according to Dr Anna Dziedzic of Melbourne University, who researches foreign-born judges and found that in nine Pacific countries over 75 percent of judges are foreign-born. But the impact goes wider: Among the 27 jurisdictions Dziedzic identified that use or have recently used foreign-born judges are nations with histories of colonial control by America, like the Marshall Islands and Federated States of Micronesia, and African countries like Namibia and Botswana.

Governments appoint foreign-born judges for several reasons. There might be too few qualified local lawyers. There are sometimes fears that experienced candidates will be biased toward certain communities. But most important, says Dr Steven Ratuva, a politics professor at Canterbury University, is the “mindset of colonization”: that “if your skin color is paler than mine, you’re probably smarter.”

Consequently, says Dziedzic, “There’s a colonial continuity in who is appointed to be a judge in the Pacific. They’re overwhelmingly white, from Australia and New Zealand, and overwhelmingly male.”

These judges benefit from the Pacific’s colonial legacy. But even when judges are neocolonial, they are crucial to the rule of law. Without them, there is nobody to consider serious criminal cases, independently resolve disputes over parliamentary no-confidence votes, or penalize government misconduct. If, as is the case in Kiribati, they are removed without being replaced by independent local judges, the political situation can quickly spiral. “A country without a judiciary,” says Ratuva, “is a serious red flag.”

A New Kind of Opposition

David and Tessie met four months after he arrived in Kiribati in 1995, at a party celebrating the 16th anniversary of the country’s independence. They talked for hours amid violet flowers and coconut palms. “It was clear to me that she was destined for great things in Kiribati,” he says.

Twenty-seven years later, they live in a beachside villa with a corrugated iron roof and electric yellow walls. Built for British colonial administrators, it is fancy in comparison to nearby houses: a reflection of their dramatic rise. David became a judge in 2018. Tessie, meanwhile, was Kiribati’s top civil servant before she was elected to parliament in 2020.

The past few years have been tumultuous for Kiribati. Its government has broken off relations with Taiwan and unexpectedly split from the region’s preeminent diplomatic forum, raising suspicions of undue Chinese influence. Tessie became such a formidable critic of these decisions that her parliamentary colleagues made her the country’s first female opposition leader.

“The government is in a bit of a panic mode,” says Anote Tong, a former Kiribati president. “This is not the kind of opposition that they’ve faced in the past.”

As Tessie’s profile grew, Maamau began pressuring Lambourne. In 2020, after Lambourne traveled to an Australian conference, the government refused to let him return unless he said he’d only been appointed for a three-year term. Months into the worsening pandemic, he acquiesced. Even then, the government only granted him a visitor visa and suspended him as a judge for unspecified alleged misconduct. When Kiribati’s New Zealand–born chief justice declared this unconstitutional, the government suspended him too. Asked what motivated the government’s efforts, Lambourne says, “It’s fear of Tessie.”

Trying to deport Lambourne is Maamau’s most extreme step yet. For some reason, he launched the deportation on the same day the country’s Court of Appeal—three retired New Zealand judges—were considering the constitutionality of the government’s previous actions, allowing them to order the temporary halt.

Over subsequent days, the government tried to convince the court that Lambourne was a threat to public safety and a fraud. The court was unconvinced. After two days’ detention, Lambourne was released from his motel. But the government then took its fight to the public, warning that Lambourne and Kiribati’s other foreign-born judges were “neocolonial forces” illegitimately seeking lifetime judgeships. Even as Lambourne returned home, he knew the government would likely try to deport him again.

The Hollow Land

When Britain colonized Kiribati in the late 19th century, it largely saw its remote possession as an inconvenience to be ignored.

The only exception was Banaba, a phosphate-rich island to the west of Kiribati’s main islands. In 1900, a New Zealand prospector signed a dubious contract with Banaba’s “king” to hand over “sole right to raise and ship all rock” on the island for 999 years in exchange for £50 a year.

By 1919, Banaba was so profitable that Britain, Australia, and New Zealand acquired the mining operation, stripped bare 90 percent of its surface—lending new significance to Banaba’s name, which translates to “hollow land”—and relocated its inhabitants to Fiji.

Then, after Kiribati’s mineral wealth was exhausted, Britain pushed it toward independence. In 1979, Kiribati became an independent country. Some residents still professed affection for colonial officials. Others, however, noticed Britain’s relief and Banaba’s empty husk. Resentment grew.

That legacy is important. Given the Pacific’s colonial history, says Ratuva, it’s “really easy to mobilize people’s nationalistic feelings in the context of a threat to their communities.”

A Conflict of Interest

To prosecute Lambourne and other foreign-born judges, Kiribati’s government hired its own foreign-born lawyer: Ravi Batra.

Batra, according to a 2003 New York Times investigation, is a New Yorker who makes his living wooing politicians. He threw parties for judges, distributed “Judicial Sunshine Awards,” and made the boss of Brooklyn’s Democratic Party a member of his firm. In return, Batra was appointed to the panel deciding Democratic nominations to New York’s Supreme Court, and friendly judges appointed him to lucrative court positions.

Teburoro Tito, a former president of Kiribati and its current ambassador to the United States, became friends with Batra (who did not respond to interview requests) after he was invited to the lawyer’s home for a party. Tito, who wore a woven tie emblazoned with the word “LOVE” during an interview, says he invited Batra to take over the case because he admired his ferocity. “I would call him a sniper in court.”

Appearing before the Court of Appeal, Batra took a “heavyweight” approach against Lambourne, saying, “Unfortunately, today’s standards of civility don’t allow the kind of punishment that [he] deserves, so we’ll leave that to God.”

The court dismissed Batra’s “hopeless” legal arguments. But two weeks later, on Batra’s advice, the government suspended those judges too. In doing so, Maamau drew a nonsensical comparison to the trials of Nazi war criminals. “[We will] defend judicial independence even from members of the bar and bench who seek to convert the Sovereign Independent Republic of Kiribati into a judicial tyranny, as Nuremberg Judges did by aiding and abetting Nazi Germany.”

There are at least three local lawyers in Kiribati with sufficient experience to serve as judges. But all three are opposition lawmakers; Maamau refuses to appoint any of them. Instead, to replace the foreign-born judges, he recently appointed his own attorney-general as chief justice: a clear conflict of interest.

Kiribati isn’t the only place to take advantage of foreign-born judges’ vulnerability. In 2006 the leader of Fiji’s military seized power in a coup. Two years later, when three Australian-born members of Fiji’s Court of Appeal declared this unlawful, Fiji’s president dismissed the country’s judges and replaced most with lawyers from Sri Lanka.

Similarly, in 2014 the government of Nauru canceled the visas of the country’s Australian-born judges after they criticized a controversial deportation. Then in 2019 the government contracted a retired Australian Supreme Court judge to oversee the prosecution of pro-democracy activists. When the judge denounced the prosecution as a “shameful affront”, the government terminated his contract.

Kiribati’s government learned from these authoritarians, says former president Anote Tong, who fears others might do the same. “The fact that it’s happening elsewhere makes it easier for others to do it.”

Regional Solidarity

One beneficiary of Kiribati’s crisis is China.

Earlier this year, Pacific nations rejected a major security and trade agreement proposed by China. But it received a more sympathetic hearing in Kiribati, which announced in July that it was quitting the Pacific Islands Forum, the regional body through which Pacific nations refused China’s proposal. Tessie, a longstanding critic of Chinese influence efforts, told The Guardian, “There is someone telling our government that we don’t need regional solidarity.”

“There is no way that the things that have happened, including leaving the Forum or anything done to me, has been at the direction of Beijing,” says Lambourne. But he believes China would have been “very supportive” of steps by Maamau to keep Tessie out of power.

Those steps appear to have been successful. Kiribati’s government believes the attempted deportation and nationalist rhetoric has helped it regain popularity. While many people once supported Tessie, says Tito, now “there is resentment on the part of many.”

“They see these [judges] don’t respect our country,” he says. “Those who were admiring Tessie might back out now, because they believe the government is doing the right thing.” Tong agrees the government has succeeded: despite Lambourne having lived in Kiribati for decades, says Tong, the government has effectively cast him as the embodiment of Britain’s colonial legacy.

And while Lambourne emphasizes that many people on Tarawa are still friendly to him in person, he has seen a significant uptick in hostility online. Often, he says, people tell him to “go back to the kangaroos”.

Maamau apparently also hopes that by deporting Lambourne, he will force Tessie to leave. Here he will have less success. Lambourne says he knew from the night he met Tessie that their relationship was secondary to her vision for the country. “[The government] seriously underestimates Tessie if they think that me living in another country will force her out.”

Now, Lambourne spends most of his time at home, hoping the government will decide not to deport him after all. If the government does, there are now no guardrails left to stop it. Tessie will keep fighting, and Lambourne will have to wait abroad for her to win the next elections in 2024, or in 2028 (when Maamau will theoretically be term-limited), or beyond.

Other judges in his position gave up. The judges expelled from Fiji and Nauru returned to Australia, legal practice, or retirement. Lambourne refuses to do the same. When I ask why, he is shocked. “Kiribati has been my home for 27 years. I want to stay for as long as I can.”

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