Aus­tralia props up Nauru’s ‘out of con­trol’ pres­i­dent

As Nauru con­tin­ues its crack­down on op­po­si­tion and abol­ishes higher courts, Aus­tralia turns a blind eye in ex­change for off­shore pro­cess­ing. By Martin McKenzie-Mur­ray.

The Saturday Paper - - Front Page -

On June 15, 2015, the Nau­ruan op­po­si­tion MP Mathew Bat­siua, a for­mer jus­tice min­is­ter, joined hun­dreds of locals in a march to the mi­cro-state’s par­lia­ment. They were ag­grieved by what they de­scribed as se­rial abuses of power – crony­ism, ju­di­cial in­ter­fer­ence, the ex­pul­sion of for­eign­ers, dra­co­nian anti-speech laws, and the par­lia­men­tary sus­pen­sion of Bat­siua him­self.

An­other of the pro­test­ers was Nauru’s for­mer pres­i­dent, Sprent Dab­wido, who de­scribed Pres­i­dent

Baron Waqa’s gov­ern­ment as hav­ing “dic­ta­to­rial” in­stincts. The year be­fore, Nauru’s mag­is­trate, the Aus­tralian Peter Law, was ex­pelled from the coun­try af­ter he at­tempted to law­fully pre­vent the gov­ern­ment’s capri­cious ex­pul­sion of two of its res­i­dents. It was a naked abuse of power, and when Nauru’s Chief Jus­tice, Ge­of­frey Eames, is­sued an in­junc­tion, it was sim­ply ig­nored. Eames, an­other Aus­tralian, was later re­fused re-en­try to the coun­try.

“Our in­ten­tions were to stage a peace­ful protest,” Bat­siua tells me. “That’s how we or­gan­ised it. And peace­ful protest is per­mit­ted un­der our con­sti­tu­tion.

All dis­cus­sions be­fore­hand were about peace­ful col­lec­tion at par­lia­ment precinct. No in­ten­tion to cause any es­ca­la­tion. We were stopped by the po­lice be­fore we even reached par­lia­ment. We made our way through the po­lice line, where there was an­other line at par­lia­ment. There

was push­ing and shout­ing that oc­curred be­tween pro­test­ers and po­lice. That’s the ex­tent of it.”

Bat­siua – and 18 oth­ers, in­clud­ing for­mer pres­i­dent Dab­wido – were ar­rested and charged with a range of public dis­or­der of­fences, in­clud­ing as­sault and ri­ot­ing. They have come to be known as the Nauru 19. Bat­siua spent two nights in cus­tody be­fore be­ing re­leased on bail. He says there are “a record num­ber” of con­di­tions at­tached to his free­dom.

The of­fice of the public de­fender re­fused as­sis­tance and the men’s pass­ports were re­voked. “The pres­sure has been re­lent­less for nearly two years,” Bat­siua says. “The en­vi­ron­ment here, with the un­der­handed tac­tics of the gov­ern­ment, makes it hard to live. That’s the cloud we’ve lived un­der. Salary and en­ti­tle­ments stopped. It’s been a tough and tur­bu­lent ride. But we’re de­ter­mined to see it out.

“Our fam­ily mem­bers and sup­port­ers have been af­fected. There’s a gov­ern­ment black­list. The gov­ern­ment can ban peo­ple from work­ing in the public ser­vice. But they also pres­sure Aus­tralian com­pa­nies con­tracted at the [de­ten­tion cen­tre]. They pres­sure them to not em­ploy cer­tain peo­ple. The ef­fects of the black­list are wide­spread here in Nauru. Gov­ern­ment has used it as a tool to per­suade peo­ple to leave us – to change al­liances from us to them.”

This was not the first men­tion of the black­list I heard this week. In 2016, four of those charged pleaded guilty, and three were sen­tenced to be­tween six and nine months’ jail, while one re­ceived a six-month sus­pended sen­tence. This en­raged the jus­tice and fi­nance min­is­ter, David Adeang – de­scribed to me this week as the “plot­ting and cyn­i­cal” tac­ti­cian of the gov­ern­ment – who de­scribed the sen­tences as woe­fully le­nient, and ful­mi­nated about the men’s treach­ery.

The sen­tences of three men – John Jeremiah, Josh Kepae and Job Ce­cil – then went to the Nau­ruan Supreme Court for re­view, a fact that close ob­servers tell me was “al­most cer­tainly” po­lit­i­cally in­flu­enced. The mag­is­trate who is­sued the orig­i­nal sen­tences, Emma Garo, did not have her con­tract re­newed. Chief Jus­tice Mo­hammed Khan, find­ing the sen­tences to be “man­i­festly in­ad­e­quate”, in­creased the sen­tences to 14 and 22 months.

The ap­peal of th­ese new sen­tences last year in the Aus­tralian High Court – as Nauru’s fi­nal court of ap­peal – re­sulted in the se­cre­tive and trou­bling abo­li­tion of a treaty be­tween the two coun­tries, and fur­ther ex­posed Nauru’s com­pro­mised ju­di­ciary.

This week, I was given the kind of blunt as­sess­ment you hear about dic­ta­tors: “This is a man out of con­trol.” The man in ques­tion is the Nau­ruan pres­i­dent, Baron Waqa. He’s a man driv­ing a dra­matic, alarm­ing de­cline in democ­racy in Nauru – and a man the Aus­tralian gov­ern­ment has re­fused to cen­sure. He has locked up op­po­nents, ex­iled judges and com­pro­mised his ju­di­ciary. For those he can’t ex­ile or im­prison, he en­forces the gov­ern­ment’s black­list. Only this year did Waqa re­lax a three-year ban on Face­book.

But our coun­tries are mu­tu­ally de­pen­dent, bound by the pol­icy of off­shore de­ten­tion. Aus­tralia was des­per­ate for an off­shore site and Nauru des­per­ate to re­vive its econ­omy. As Waqa ac­knowl­edged in Jan­uary: “The reestab­lish­ment of the Re­gional Pro­cess­ing Cen­tre has been the driv­ing eco­nomic force of de­vel­op­ment on Nauru. The level of eco­nomic ac­tiv­ity on the is­land since the cen­tre was re-es­tab­lished in 2012 has been enor­mous. The de­mand on ser­vices, in­fra­struc­ture and labour was over­whelm­ing.”

For very dif­fer­ent rea­sons, it was no less im­por­tant to Aus­tralia. But one of the costs of this trans­ac­tion has been our near-si­lence about Waqa’s ero­sion of the rule of law. Democ­racy is col­laps­ing in a near neigh­bour, and our coun­try is prop­ping up the regime re­plac­ing it. “Aus­tralia holds it­self out as a coun­try that in­sists upon other coun­tries hon­our­ing the rule of law, the im­por­tance of an in­de­pen­dent ju­di­ciary et cetera,” one ob­server told me this week, “but they have been com­plicit in this in­stance of deny­ing th­ese men proper jus­tice.”

Un­til last month, the Aus­tralian High Court has served as Nauru’s fi­nal court of ap­peal. This was rat­i­fied in a 1976 treaty, al­though the func­tion pre­dated the treaty’s ex­is­tence. It is an un­usual, though not un­known, cir­cum­stance – that of a coun­try’s last ap­pel­late court re­sid­ing in a for­eign ju­ris­dic­tion. For most of its 42 years, the treaty was lit­tle ex­er­cised. Cost and dis­tance is pre­sumed to be one rea­son Nau­ru­ans, who en­joy a very lim­ited le­gal pres­ence, have not made use of it. Pro­fes­sor Jeremy Gans of Mel­bourne Univer­sity wrote ear­lier this year that just five High Court de­ci­sions on ap­peal oc­curred in the treaty’s first 40 years. This changed quite dra­mat­i­cally in the past two years and in the last year alone 13 ap­peals were started. The sud­den in­crease is largely ow­ing to Nauru’s pop­u­la­tion of asy­lum seek­ers mak­ing ap­peals, par­tic­u­larly in in­stances where they have Aus­tralian le­gal rep­re­sen­ta­tion.

The treaty has long vexed the High Court, invit­ing, as it does, a strange mix of ju­ris­dic­tions. In a 2004 chal­lenge to the treaty’s con­sti­tu­tion­al­ity, brought by Nau­ruan po­lice, the Aus­tralian gov­ern­ment de­clined to de­fend the va­lid­ity of its own statute, prompt­ing dis­grun­tled sur­prise from Jus­tice Michael Kirby. The chal­lenge was un­suc­cess­ful.

In Oc­to­ber last year, the High

Court gave its judge­ment on an ap­peal to Jus­tice Khan’s re-sen­tenc­ing of Ce­cil, Kepae and Jeremiah. The ap­peal was up­held, an­ger­ing and em­bar­rass­ing the Nau­ruan gov­ern­ment. The court found that for Jus­tice Khan to legally jus­tify the in­creased sen­tences, he would have to have found an er­ror in the orig­i­nal ones. He had not.

Two months later, in the mid­dle of De­cem­ber, the Nau­ruan gov­ern­ment wrote to the Aus­tralian gov­ern­ment re­quest­ing the abol­ish­ment of the treaty. The annulment would be­come ef­fec­tive 90 days af­ter this no­tice. No one was no­ti­fied. Lawyers for the Nauru 19 con­tin­ued for months in the be­lief of their re­course to the High Court, lit­tle know­ing that the clock was count­ing down on the ju­ris­dic­tion’s era­sure.

This annulment has hap­pened se­cretly and has cyn­i­cally plunged po­lit­i­cal op­po­nents into le­gal twi­light. Lawyers for Bat­siua – and the other sus­pended par­lia­men­tar­i­ans – made an ap­peal to the High Court, ar­gu­ing that the ap­peals process was al­ready in mo­tion and should be heard. On Wed­nes­day, this was re­jected. The men have no re­course to a lo­cal ap­pel­late court – there isn’t one, and there won’t be for some time.

The er­rors of Jus­tice Khan were not es­o­teric. A judge must jus­tify the re­vi­sion of a sen­tence – in this in­stance, its dra­matic ex­ten­sion. To not do so is a gross in­com­pe­tency, or, as ob­servers have told me this week, sug­ges­tive of the Nau­ruan gov­ern­ment’s im­proper in­flu­ence on the Supreme Court.

When news broke of the treaty’s annulment – a fact let slip to Aus­tralian lawyers on Good Fri­day, who co­in­ci­den­tally shared a flight home with Nauru’s so­lic­i­tor-gen­eral

– the Nau­ruan gov­ern­ment ar­gued it was a sim­ple mat­ter of strength­en­ing sovereignty. If so, it is un­usual that it wasn’t men­tioned in Pres­i­dent Waqa’s Jan­uary 31 speech, mark­ing 50 years of his coun­try’s in­de­pen­dence. Or in any speech. Nauru re­moved its high­est court of ap­peal with­out con­sult­ing its peo­ple. There are good rea­sons for es­tab­lish­ing a lo­cal ap­pel­late court on Nauru, but none for con­demn­ing po­lit­i­cal op­po­nents to a le­gal no-man’s-land. “They are clearly pu­n­ish­ing us,” Bat­siua says. “They’ve cut off our av­enue for ap­peal.”

The de­ci­sion brought im­me­di­ate and damn­ing press, and the Nau­ruan gov­ern­ment bel­liger­ently de­fended it­self. A se­ries of tweets this week from the gov­ern­ment’s of­fi­cial ac­count read: “Nauru’s jus­tice sys­tem is in­de­pen­dent and trans­par­ent, and our judges – all from out­side Nauru – are highly re­spected. As a sov­er­eign na­tion with a demo­crat­i­cally (re)elected gov­ern­ment, we will make de­ci­sions based on what is best for our peo­ple, not what ill-in­formed, racist, colo­nial-minded Aus­tralian lawyers, jour­nal­ists and ac­tivists try and de­mand. We will not ac­cept at­tempted in­ter­fer­ence in our do­mes­tic af­fairs.”

Close ob­servers saw a badly pinched nerve. Here was the Waqa gov­ern­ment’s sig­na­ture pug­nac­ity – in lieu of ac­count­abil­ity, as­cribe to your op­po­nents an ob­scene mo­ti­va­tion. It was a mix of shame­less­ness and acute sen­si­tiv­ity. The Nau­ruan gov­ern­ment was work­ing from a play­book that Aus­tralian PR mer­chant Lyall Mercer helped write, when he was in the em­ploy of the gov­ern­ment.

Mean­while, the Aus­tralian gov­ern­ment has said it sup­ports

Nau­ruan sovereignty and wel­comes any im­prove­ments to the coun­try’s civic ma­tu­rity. For as long as Nauru has been a use­ful client, the Aus­tralian gov­ern­ment has been mostly mute or pre­var­i­cat­ing on its abuses of power – even when those abuses have af­fected Aus­tralian cit­i­zens.

For most Aus­tralians, Nauru has be­come short­hand for our pol­icy of off­shore pro­cess­ing. It’s a crude re­duc­tion, of­fen­sive to many Nau­ru­ans. My own re­port­ing is guilty of it. This is, largely, a col­lat­eral re­sult of jour­nal­is­tic ne­ces­sity – the pol­icy has been in­ju­ri­ous, and our un­ques­tion­ing pa­tron­age of the Nau­ruan gov­ern­ment du­bi­ous. For the past five years, in­jury and cor­rup­tion have been syn­ony­mous with the pol­icy and the is­land. It has de­manded at­ten­tion. It still does. “We’re known out­side for two things,” Bat­siua says. “Refugees and cor­rup­tion. But it’s a beau­ti­ful coun­try. We’re friendly peo­ple. We don’t judge peo­ple. We’re very hos­pitable. We ac­cept peo­ple for who they are. But today, we must stand up for our coun­try.”

Re­flect­ing on the past, Bat­siua says: “It’s in our psy­che – we don’t mi­grate, un­like Poly­ne­sians. Even with all the neg­a­tive pub­lic­ity, it’s still our home. We don’t have any visa prob­lems be­cause we don’t ab­scond. We get home­sick and come home. There’s a re­ally strong link to home. We’re like hom­ing pi­geons, I say.

“I think Nauru, like any other small Pa­cific is­land, has a lot of in­her­ent chal­lenges. Lim­ited land, small pop­u­la­tion, lim­ited eco­nomic base. But what makes Nauru dif­fer­ent is that we’ve had some unique op­por­tu­ni­ties, through phos­phate for ex­am­ple. NPC ex­ported mil­lions of tonnes of phos­phate, gen­er­ated huge rev­enue. We were able to es­tab­lish so­phis­ti­cated telecom­mu­ni­ca­tions in the ’70s. For a while our GDP per capita was the sec­ond high­est in the world. We had ships, planes, an in­vest­ment port­fo­lio. There was a trust of around $2 bil­lion – things were look­ing rosy. But then we fell into a rut be­cause of mis­man­age­ment and cor­rup­tion. We failed to man­age our wealth prop­erly. Early 2000s, re­ceivers were brought in and we lost our in­vest­ment port­fo­lio.

“When we came into gov­ern­ment in 2004, we came in straight af­ter the col­lapse of the trust. We were voted in be­cause peo­ple wanted change. We recog­nised that cor­rup­tion was the root of our down­fall. We made head­way into that. We brought in new laws to pro­tect trea­sury fund. Built in a lot of re­forms into our sys­tem. It’s im­por­tant for us to fight now. At the heart of it is abuse of power – what’s happening now is the same thing that brought Nauru to its knees in the ’90s and early 2000s. I feel at the fore­front of some­thing very im­por­tant. There’s weight and re­spon­si­bil­ity. You have to fo­cus and pre­pare your­self men­tally and phys­i­cally and do the best you can.”

I last spoke to Bat­siua on Thurs­day. By the time you read this, he will likely be

• be­hind bars again.

THIS ANNULMENT HAS HAP­PENED SE­CRETLY AND HAS CYN­I­CALLY PLUNGED PO­LIT­I­CAL OP­PO­NENTS INTO LE­GAL TWI­LIGHT.

MARTIN McKEN­ZIEMUR­RAY is The Satur­day Pa­per’s chief cor­re­spon­dent.

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