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.
Nauru houses Australian-bound asylum seekers. Its economy is largely driven by Australian aid and financial spin-offs from the detention centre. Nauru’s key political elites are closely connected to the Australian government. Nauru is arguably Australia’s success story in terms of dealing with its current biggest policy night mare – 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 threatens 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?
While Fiji and Papua New Guinea drew sanctions and stern condemnation, the Nauru situation was simply dismissed as a ‘domestic...internal issue.’
As Chief Justice Eames said, it is “extraordinary” that Australia adopt this approach. Has Australia all of a sudden changed to a ‘non-interference’ policy like that of China?
In this relatively unstable region, such contradictions can have serious implications for Australia’s future role as a proponent of the rule of law. 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.
Fiji has haad 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 until last month when he quit as Fiji military chief, a move welcomed both in Australia and New Zealand.
In each of the Fiji coups, the constitution was suspended or dismissed as non-existent, affecting the fundamental rights and freedoms of citizens guaranteed under the constitution.
Since 2006, the Fiji regime has been accused of politicising the judiciary. Many judges who stood in defence of the rule of law were forcefully retired or silenced. A petition to Commodore Bainimarama in 2012 by former resident judge William Roberts Marshall QC, leaked widely on the internet, showed the seriousness this issue.
Despite Commodore Bainimarama’s retirement in respect of the new constitution, Australia needs to remain vigilant.
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 consist, objective role in this process.
Between December 2012 and July 2013, 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.
This 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 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.
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, 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 21st 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. It was a sight that promised 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 the political elite? It all seemed to vanish in the air of ‘forgive and forget.’ And Australia was more than happy to accept this questionable status quo.
The last three weeks have also seen a dramatic turn of events. Prime Minister O’Neill sacked two of his most senior ministers and party leaders who were instrumental during the crisis and were vital in forming his current coalition government.
The Opposition is publicly calling for a revolution within the government, accusing it of serious misappropriation. Most notably is the Parakagate allegation implicating the Prime Minister and the Ministers of Treasury and Finance for defrauding the state of millions of kina.
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.
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, identified the Pacific Islands as one of the most difficult places in the world to do business. The high levels of corruption, gender violence and pervasive increase in crime rates, to name a few factors, are 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.”
The Australia government 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 of the Faculty of Business, Government and Law at the University of Canberra and a PhD candidate at the ANU Law School.