Nauru rule of law case and the implication for the Pacific

by Bal Kama

Australia’s blind eye while rule of law under siege in the Pacific
The resignation of the Australian born Nauru Supreme Court Chief Justice Geoffrey Eames last week will go down as one of the most disappointing moments in the judicial history of the island nation. It came about as a result of the sacking of Nauru’s Chief Magistrate and the suspension of the Chief Justice early this year by the Nauruan government – events widely condemned as breaching the rule of law doctrine.

The judiciary is often referred to as the ‘guardian of the constitution.’ Central to this relationship is the doctrine of rule of law and it is inextricably linked to the constitution. Interfering with the judiciary is a direct assault on the constitution and raises serious questions about a government’s commitment to the rule of law and constitutional democracy. Any such government should alarm Australia, which is an established constitutional democracy.

Picture source: Radio Australia

The Nauru situation is similar to that of Fiji when the current military regime first came to power and the 2011-2012 impasse in Papua New Guinea. However, while Fiji and PNG drew sanctions and stern condemnation respectively from Australia, the Nauru situation was simply dismissed as a ‘domestic…internal issue.’ As Chief Justice Eames said, it is ‘extraordinary’ that Australia adopts this approach. Has Australia all of a sudden changed to a ‘non-interference’ policy like that of China? What could be some possible implications as a result of this shift?

Nauru Experience
Nauru has housed Australia-bound asylum seekers. Nauru’s economy is largely driven by Australia’s aid and financial spinoffs from the detention centre. Nauru’s key political elites are closely connected to the Australian government. Australia’s High Court is Nauru’s highest court of appeal and Nauru is arguably Australia’s success story in terms of dealing with its current biggest policy nightmare – the asylum seekers.

As an established democracy, the international community expects Australia not only to support the domestic democratic institutions in the Pacific Islands countries, but to take a more assertive stand against any individual or government that threatened the pillars of democracy.

To some extent, Australia responded to this latter expectation during the constitutional crises of Fiji and Papua New Guinea. Has Australia taken the same stance against the Nauruan government? No. Why not? It is argued Australia was more concerned with safeguarding its asylum seeker deal with the Nauruan government than raising concerns of rule of law and political incursions on judicial integrity.

But in this relatively unstable region, these contradictions can have serious implications for Australia’s future role as a proponent of the rule of law and democratic governance. The experiences of Fiji and Papua New Guinea indicate that the issue is not alien to Australia’s backyard and Australia need to be consistent and determinative in addressing such issues.

Picture Source: Dexter S Brechtefeld, Blogspot

Fiji Experience
Fiji has had four coups since 1987 when Lieutenant Colonel Sitiveni Rabuka first stormed the Fijian Parliament. The latest coup in 2006, led by Commodore Frank Bainimarama, saw him in power till last month when he quit as Fiji military chief, a move welcomed both in Australia and New Zealand.

In each of these coups, the constitution was suspended or dismissed as nonexistent, affecting the fundamental rights and freedoms of the citizens guaranteed under the constitution.

Since 2006, the Fiji regime has been accused of politicising the judiciary. Many judges who have stood in defence of the rule of law were forcefully retired or silenced. Despite Commodore Bainimarama’s retirement in respect of the new constitution, Australia needs to remain vigilant.

Picture source: Devra Berkowitz, UN photo

Until a constitutionally elected democratic government comes to power and serious efforts are made to strengthen the democratic institutions including the courts, the rule of law in Fiji is far from ideal and Australia must be seen to play a consistent, objective role in this process.

PNG Experience
Between December 2011 and July 2012, PNG became the first country in the Commonwealth since the inception of the Westminster system of government to have ‘two’ governments for over seven months.

The tumultuous crisis saw almost ‘two’ of every important government portfolio including ‘two’ governor-generals, ‘two’ Prime Ministers and Cabinet Ministers and ‘two’ police and defence chiefs. One ‘government,’ led by the current Prime Minister Peter O’Neill, was elected by Parliament and the other, led by then Prime Minister Sir Michael Somare, was appointed by the Supreme Court.

Picture source: ABC News

What transpired was historic.  The Chief Justice was charged with the criminal offence of sedition and the integrity of some of his fellow Supreme Court judges was called into question. The parliamentary elected government went further to enact the Judicial Conduct Act (now repealed), a law aimed at giving powers to the Parliament to scrutinise the judges’ professional ethics with criminal penalties including the loss of retirement benefits. These events encapsulated one of the 21^st century’s most profound constitutional crises.

The rule of law was clearly undermined.

Has it been resolved? No, not formally. It appeared to be ‘ended’ only with a televised handshake between O’Neill and Somare, the leaders of the warring faction after the Alotau Accord was agreed upon. It was a sight that promises hope for the people of PNG but hope for what?

How about the assault on the judiciary? And what of the allegations and outstanding charges initiated by the judiciary against these political elites? It all seemed to vanish in the air of ‘forgive and forget.’ And Australia was more than happy to accept this questionable status quo.

Picture source: Radio Australia

With this current government, there are already doubts as to its longevity in the office. Many issues appear to trigger this perception including the Parakagate allegation that had implicated the Prime Minister Peter O’Neill and the Ministers of Treasury and Finance for defrauding the state of millions of kina. The recent sacking of senior government ministers, especially the Treasury Minister Don Polye, had resulted in widespread scepticism. The Opposition is publicly calling for a revolution within the government, accusing it of serious misappropriation and internal instability.

Maybe it is premature at this stage to predict another crisis but one can never be sure in the ‘land of the unexpected.’ As shown in Nauru, one wonders whether if a constitutional crisis does happen in PNG, Australia, with the Manus deal in sight, will maintain its ‘non-interference’ policy.

Conclusion
Australia continues to play a leadership role in the region as an established constitutional democracy. It needs to project a consistent and clear position on issues of rule of law and constitutional governance in a region plagued by serious socio-political instability.

The World Bank, in a recent report presented at the ANU Crawford School of Economics, identified the Pacific Islands as one of the most difficult places in the world to make business. The high levels of corruption, gender violence, and pervasive increase in crime rates, to name a few factors, are some constant challenges that continue to undermine development efforts in the Pacific – ‘Australia’s backyard.’ Has Australia done enough? Are Australia’s policies driven by the desire to genuinely help the Pacific or are they constructed for its own interests?

The citizens of the Pacific states expect Australia to be proactive when their institutions of justice and democracy are interfered and tampered with by their political elite. For Australia to wash its hands and say it’s was ‘domestic…internal matters’ is, as the Chief Justice said, ‘extraordinary.’

Australia is not asked to be a ‘deputy sheriff’ policing the region‘. It is simply asked to be a genuine friend. The Nauru precedent may come back to haunt Australia in the uncertain days ahead.

Bal Kama is a staff member at the Faculty of Business, Government and Law, University of Canberra and PhD Candidate with the ANU College of Law, Australian National University.