The Rule of Law in Nauru: an evolving concept?
Speech by the Hon Geoffrey M Eames AM QC
Criminal Law Conference – Law Society of South Australia 24 October 2014
McLaren Vale, South Australia
The Nauru Government removes its judiciary
The removal from office and deportation of the Resident Magistrate/Supreme Court Registrar, Peter Law, by the Nauru government on 19 January 2014 was done without notice and without any charges or reasons being identified to him, let alone substantiated.
The removal of Mr Law was in response to him making interim orders overturning the deportation of two expatriate businessmen, one Fijian, one Australian. In seeking their deportation the government relied on amendments to the Immigration Act 2009 which it had introduced in December 2013 and which were intended to give the Minister for Border Control power to deport a non-citizen without giving reasons and without any right of challenge in the courts.
Applying principles of Nauruan law that were available to all citizens and residents of Nauru who wished to challenge abuses of power, the Resident Magistrate granted interim injunctions and gave the parties leave to bring proceedings for judicial review. His decisions were entirely appropriate and were supported by detailed written
reasons. As he pointed out, it was strongly arguable that the amendments were, in fact, defective, and did not empower the Minister to act as he sought to do. The government was later forced to concede as much, when it hurriedly repealed the Act and replaced it with new legislation, the Immigration Act 2014.
The orders granted by Mr Law upset the Minister for Justice and Border Control, Mr David Adeang MP, who complained to Mr Law in an inappropriate SMS message that he had gone against the will of Cabinet. So much for the separation of powers! Rather than apply to Mr Law to overturn the interim injunctions on Monday 20 January, when the cases were listed for mention, or to file an appeal against the grant of leave to bring judicial review proceedings, the government chose, instead, to remove the Resident Magistrate and to replace him with a solicitor flown from
Melbourne. The solicitor later claimed that when asked on Friday 17 January 2014 to fly to Nauru he had been given no reason for his journey, and that until he arrived he did not know he was to replace the Resident Magistrate.
In a telephone call to me in Melbourne that Sunday, the Nauru President, the Hon Baron Waqa MP, told me that a new Resident Magistrate had been appointed, and Mr Law was to be deported. His deportation order was based on the same defective legislation as had been relied upon for the deportation of the two businessmen. No credible reason was given then or later for the action taken against Mr Law.
I advised the President that I was flying to Nauru and would arrive on the morning of 20 January 2014, when I would convene hearings of the Supreme Court. I gave a direction, as Chief Justice, that the newly appointed magistrate was not to sit on any proceedings arising out of these events, as they were now before me, in the
Supreme Court.
Upon the refusal of the President to give me appropriate undertakings, and upon a telephone application to me by Mr Law, from Nauru, I imposed interim injunctions on the President and on the Minister for Justice and Border Control, the Commissioner of Police and the operator of the Nauru airline. Those injunctions, which were issued from Melbourne, and served in Nauru, restrained the defendants from taking any further steps towards deporting the Resident Magistrate, until further order by me. I warned the President and Minister that disobedience of the injunctions could constitute contempt of court.
The government ignored the injunctions and Mr Law was deported, in humiliating circumstances, on the afternoon of 19 January 2014.
The Nauru government then effectively removed me as Chief Justice by cancelling my visa late that afternoon. I was unable to fly to Nauru and have not returned. The new Immigration Act 2014 purported to retrospectively declare the government’s actions under the former Act to have been lawful and that any court orders made against the government under that Act were void.
On 29 January 2014 the newly appointed Resident Magistrate, in his one, albeit brief, substantive hearing as magistrate or Supreme Court Registrar during his ten day reign, purported to uphold the validity of the retrospective provisions of the Immigration Act 2014. Having ruled that the injunctions issued by myself and Mr
Law no longer applied, he flew home to Melbourne on the same day1. The two
expatriate businessmen were then deported.
President Waqa said in a media statement that the government had acted in the exercise of its sovereign right “to decide who holds key positions and who is allowed
1 I had first heard this man’s name when it had been put forward in an e mail to the Registrar on 3
December 2013 from a Cabinet minister, as being “Cabinet’s choice for Judge/Chief Justice”, in response to advertisements for two additional part-time Supreme Court judges. After considering the man’s application for a position as judge, which he later filed, I recommended against his
appointment. At the time, I took the suggestion that the position of Chief Justice was open as being an amusing misunderstanding. Perhaps I should have been both alerted and alarmed!
to work in this country”. He said that “cleaning up cronyism and corruption was the first priority”. He added, “We made the tough call to replace - and in some extreme cases, deport – high profile people who put their own interests above the interests of the nation and we have brought back credibility to the legal system”.
Particulars of cronyism and corruption were never given and, bizarrely, the President later assured me that his reference to “high profile people” engaging in cronyism and corruption was merely “a general statement”, and was not directed at me or Peter Law, although we were then the only serving members of the judiciary. A more revealing explanation was offered by Home Affairs Minister, Charmaine Scotty MP, who said in a media interview that I had been removed because “ in previous events we have had the Chief Justice overrule our parliament in regards to our states of
emergencies”.
The Constitution of Nauru provides that the Supreme Court has the exclusive and final say as to the in interpretation or effect of any provisions of the Constitution. The
volatility of Nauruan politics2 has meant that constitutional challenges have been
very frequent over the years. Perhaps in anticipation of such volatility, Article 51 of the Constitution provides for the circumstances in which a Judge of the Supreme Court can be removed from office. That could only occur upon a vote of two-thirds of the members of Parliament, upon proof of misconduct or incapacity justifying such action. In addition, I had a written contract with the government which guaranteed that, save for removal in accordance with the Constitution, I was appointed until the age of 75 years, or such earlier time as I chose to retire.
The removal of my visa made it impossible for me to perform the role of Chief Justice. After two months attempting to do so from Melbourne, I resigned, on 13 March 2014.
In September 2014 the government appointed a new Chief Justice, Ratu Joni Madraiwiwi, and two additional Supreme Court judges, Justice Elizabeth Hamilton-White and Justice Mohammed Shafi Khan.
The Rule of Law
The Asia Pacific Regional Director of the International Commission of Jurists, Sam Zarifi, summed up the relevant principles of the Rule of Law concerning the
independence of the judiciary: “removing judges from office, without any process whatsoever, breaches clear international standards on the independence of the judiciary”.
Those principles have been articulated in international statements such as the Commonwealth’s 2003 Latimer House Principles on the Accountability of and the Relationship between the Three Branches of Government, the 1985 United Nations
2 There were seventeen changes of administration between 1989 and 2003, alone, and many since.
Basic Principles for Independence of the Judiciary, and the 1997 LawAsia Beijing Statement of principles for independence of the judiciary. Article 51 of the
Constitution accords with those principles with respect to Supreme Court judges but those international statements equally apply to the removal of all judicial officers. In accordance with those principles no judicial officer may be removed from office without good reason and without the opportunity to contest any allegations, pursuant to a transparent process, in accordance with law.
The circumstances surrounding the removal of the Resident Magistrate and myself were widely recognised to be blatant denials of those principles, which are at the heart of democracy.
Peter Law and I received support from the Commonwealth Magistrates’ and Judges’ Association, the Commonwealth Lawyers Association, the Commonwealth Legal Education Association, the International Commission of Jurists, the Judicial Conference of Australia, LawAsia, the South Pacific Lawyers” Association, the Victorian Bar Council and other Bar associations, the Law Council of Australia, the New Zealand Law Society, the Chief Justices of Victoria and New Zealand and many others.
On 7 March 2014, in a joint statement, the Chief Justices of eleven Pacific
jurisdictions, and the Deputy Chief Justice of Papua Guinea, meeting in Auckland, expressed “deep concern” about the events in Nauru and said they “give rise to serious concerns about judicial independence and the operation of the Rule of Law in Nauru”.
As I said in my first media statement, on 19 January 2014, I considered it was my duty to uphold the principles of the Rule of Law and independence of the judiciary, so as to ensure that democracy prevailed in Nauru.
The Law Society of Nauru, in protesting the removal of Peter Law, made the point, strongly, that the proceedings brought by the two expatriates were not seeking to exercise rights that applied only to expatriates, but rights that were held by all people in Nauru to challenge decisions of government.
If the government could abuse its power and ignore court orders in cases involving expatriates, then it could also do so in cases where it was in dispute with Nauruan citizens.
The residents and citizens of Nauru should have the benefit of the full force of the Rule of Law.
Moving on from “the turbulent challenges of the recent past”: a more flexible Rule of Law?
The Nauru government has sought to move on from the events of 19 January 2014 (as have the Australian and New Zealand governments), ignoring the criticism of its breaches of the Rule of Law, and presenting the total replacement of its judiciary as a positive renewal, in the exercise of its sovereign right (as it described it) to decide which “high profile” members of the judiciary should be removed and replaced at its whim, without regard to the Constitution.
At the swearing-in ceremony for the new judges, on 8 September 2014, the new Chief Justice, Ratu Joni Madraiwiwi made a speech in response to a welcoming speech by President Waqa. He titled his speech: “Strengthening the Rule of Law in Nauru”.
The Chief Justice did not explain what the rule of law was, nor suggest how it would be strengthened by him. Nor did he discuss the undermining of the Rule of Law, as constituted by the removal of Peter Law and myself.
In the audience was the President, his Ministers, including David Adeang, members of Parliament, public servants, legal practitioners and members of the public.
I understand that the Chief Justice would have felt constrained in what he could say about those events. It is quite likely that he and his colleagues will be called upon to make judgments about the legality and correctness of the government’s actions. However, given the tight restrictions imposed by the Government of Nauru on the dissemination of international media and local criticism of its actions, and given its assertion in Nauru media that the removal of the judiciary was merely the exercise of a sovereign right to replace the judiciary when it saw fit, it was important, in my respectful opinion, that the audience not be left in any doubt about the relevance or content of the Rule of Law in Nauru.
On behalf of his colleagues, the Chief Justice extended warm greetings to the government and people of Nauru. He added:
“In particular, I offer His Excellency the President and the First Lady salutations because of their blood ties with my homeland Fiji”.
He declared the swearing in of the new judicial officers ‘an important milestone in the legal history of Nauru’.
He then said of the new appointments:
“It strengthens the capacity of the judiciary and represents a determination to move beyond the turbulent challenges of the recent past. It will ensure a more collegial and consultative judiciarygoing forward.”
In the following passage the Chief Justice might merely have been referring to the sort of constraints that come with a small population, where necessity might require judges to sit notwithstanding that they know some of the parties or witnesses.
However, the audience might have understood that the new Chief Justice saw the
observance of the Rule of Law as being conditional, not an absolute right. He said:
“While we are duty bound to uphold the rule of law, we are also aware that Nauru is a country that has a culture and traditions of which its people are justly proud. Your reputation for kindness and generosity is also well known. In applying the law regard will be had to context and the importance of
appreciating that the law does not operate in a vacuum but among individuals and communities who have live and real concerns. That will not dissuade us from doing what is right by the parties, of course, but it reminds us that balancing these often competing principles calls for sensitivity, wisdom and discernment”.
In an interview with ABC Radio Australia on 12 September 2014 the Chief Justice said that he and his colleagues had been given personal assurances by both the President and the Minister for Justice that their independence would be respected. The Chief Justice said he took those men at their word. Yet these were the very people who had ignored the Constitution and had shown contempt for the Rule of Law in removing myself and Peter Law.
When interviewed for Radio New Zealand a month later, the Chief Justice repeated that he had no reason to doubt the assurances given to him of the government’s support for the judiciary and for its independence. On this occasion, the Chief Justice once again seemed to qualify the application of the Rule of Law to the situation in Nauru. The following exchange took place:
Interviewer: “ . . . your predecessor rather strongly accused the government of interfering in the judiciary, which is obviously a very concerning allegation to make.”
Chief Justice: “I think it is, but I think across the Pacific it is the nature of our countries which are in transition that we will have these challenges and that the rule of law which is well-established in western metropolitan countries really evolved over time and I think some similar process is happening in the Pacific and I think one has to, I think, view it in those terms”
As I noted earlier, in international forums Nauru has committed itself to the Rule of Law, not to a watered down version of it. Nor did the judicial leaders of twelve
Pacific countries qualify their concern about the breach of the rule of law in Nauru by suggesting that the principle of judicial independence was merely an evolving
I do not suggest that Ratu Joni Madraiwiwi will not be independent. He has a fine reputation among those who know him and he has demonstrated his courage and commitment to democracy both in his political and judicial careers. Nor do I doubt the integrity of the other newly appointed judicial officers.
It may well have been that the Chief Justice thought that if he had commented further on the “turbulent events” that preceded his appointment little would have been usefully achieved. It might have been regarded as a public rebuke to the President and Minister for Justice and a pre-judgment as to the legality of what had occurred. I fully understand the need for a cautious approach and careful choice of words, but it would be very unfortunate if the members of the government, or the people of Nauru, took from the speech of the Chief Justice the belief that the
independence of the judiciary was merely an evolving concept in Nauru, one which might allow the removal of the judiciary in circumstances such as occurred with myself and Peter Law.
Whilst I understand that, given my resignation, the judicial system must now move on, it is important that the full gravity of what occurred on 19 January 2014 is not forgotten.
Chief Justice Marilyn Warren of the Victorian Supreme Court spoke out in my support after my visa was revoked. She said:
“I doubt there would be a Chief Justice, judge or magistrate in Australia who would not empathise with Chief Justice Eames and support his vigilance in
protecting the rule of law in his jurisdiction. It is important that we do not let
events in Nauru slip by: initial protest and criticism that subsides into
acquiescence. We should maintain our support of Chief Justice Eames and urge the Australian Government to do all in its power to support his Honour and the rule of law in this historical neighbour”.
From the outset, both the Australian Foreign Minister, Julie Bishop, and Minister for Border Control, Scott Morrison, said that the deportation of Peter Law and the revocation of my visa constituted “domestic matters” for the Nauru government to resolve. Much later, Ms Bishop said that the Australian government would be
concerned “if” the rule of law had been breached. She did not however concede that it had been breached. One must ask: if the removal of Peter Law and myself was not a breach of the rule of law, why was it not?
The people of Nauru have a right to demand that, in common with western countries, they receive the benefit of the full application of the Rule of Law and the
independence of the judiciary, as agreed to by Nauru in international forums. To accept that the Rule of Law is merely “evolving” in Nauru, could allow tyrants to undermine it.
