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Australia’s blind eye while rule of law under siege in the Pacific

Bal KamaBAL KAMA

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.

Comments

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Robin Lillicrapp

Appeals to superior sovereign entities like Australia seem fraught.
Australia unsaddled herself of Common Law baggage with the events of the Australia Act of 1986.
With that, much of the previous millennia's development of "Constitutional democracy" took a big hit.
Judiciaries began to dance to rules of law that seem destined to appeal to so called "International obligations" as the benchmark.

Globalisation has gutted the former Constitutional democracies of superbly developed protections of "rights" substituting impositions of statute law.
Is it any wonder that PNGeans have trouble protecting "land rights" etc when their big next door neighbour has inflicted a similar form of tyranny upon her own people?

Chris Overland

In this excellent article, the author asserts that Australia has an obligation the step in to overturn unjust or illegal decisions taken by the power elites that have emerged in Pacific nations.

This expectation is based upon at least one false premise, which is that Australia actually has both the will and capacity to successfully intervene in the affairs of other nations.

The bitter lesson of Vietnam, Iraq and Afghanistan is that even the most well intentioned and powerful intervention aimed at imposing democratic solutions to other people's problems is doomed to failure.

The intervening power all too soon becomes the focus of local and nationalist resentment and suspicion. Its motives are invariably ascribed to self interest and even its most benign activities like building roads, schools and hospitals are interpreted as mere window dressing for much more sinister aims.

The horrible truth is that democracy is no more "exportable" than communism proved to be simply because the prevailing cultural and social norms in the "target" country always trump rationality and logic.

There seems to be no painless way for any country to successfully create a democratic form of government under which the "rule of law" will prevail.

This should be no real surprise to anyone. After all, it took a mere millennium or so for the "Westminster system" and its various derivatives to emerge from what was a long and lamentable litany of civil wars, protracted periods of absolutism and frequent outbreaks of repression.

So, given this background, it is not likely that Australia can or will intervene in Nauru's affairs, especially as its own national interests would not be served by picking a fight with the current government.

At best, its diplomats will be quietly and discretely whispering in the ears of those in power in the hope that they will see the error of their ways.

Bal Kama

Thanks Francis.

While a difference does exist in the style of political governance, I wouldn't say it is 'quite different' with respect to the effects on the judiciary and the issue of rule of law.

In both countries, and not forgetting PNG, the integrity of the judiciary was equally undermined, raising serious questions about the rule of law and the separation of powers.

While prevailing political circumstances are an important consideration, the question is whether those circumstances should dictate or measure the degree to how Australia, as an independent, established democracy, responds to these pressing issues.

Should Australia's response be different to a coup d'etat country than a country that is not, i.e., a democracy, when the judicial institutions are equally affected in both countries?

To think so would be to believe in the idealism of democracy and that is far from the reality we are seeing in the Pacific islands.

Francis S Nii

I like your argument, Bal, but the situation in Nauru is quite different from that of Fiji. Nauru although experienced constitutional crisis like Fiji, the former did not involve coup while the latter did.

With this backdrop, I would not accuse Australia of double standards as the position of Australia on Fiji and Nauru depended very much on the prevailing political circumstances in each country.

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