The status of the rule of law in Nauru became even more precarious with the recent resignation of Nauru's Chief Justice, Australian Geoffrey Eames. After two months of seeking to have the withdrawal of his visa by the Nauruan Government overturned, he now says his position is untenable.
This week, the parliamentary opposition of Nauru expressed its deep concern about the state of governance in their country and called on the governments of Australia and New Zealand to stop 'pussyfooting' around the situation (more on that later). Particularly vocal among the Opposition is Roland Kun MP, who described government proposals to appoint a new chief justice on a six-month renewable contract as:
…proof that this government is either completely ignorant of the importance of the separation of powers and judicial independence – and therefore unfit to govern – or so contemptuous of the rule of law that they think they are entitled to effectively dictate to the judiciary that judicial decisions must favour government.
But elsewhere, the volume levels have been turned way down. It is true that the Pacific Conference of Chief Justices has expressed its collective concern, but by its own admission, it can do precious little else. More significantly, there has been no utterance from the Pacific Islands Forum. And it is not for want of a mechanism. The Forum has the Biketawa Declaration to provide guidance for responding to a situation of this type.
What is the Biketawa Declaration and why is it important here? It is a statement of principles of governance that was accepted by the members of the Pacific Islands Forum in 2000. Among those principles is a commitment to maintaining the rule of law; indeed 'upholding…the rule of law and the independence of the judiciary' are expressly stipulated in point three of the document.
Not only does the Biketawa Declaration set out a democratic framework to which Pacific island countries have ascribed, it also delineates how the Pacific community can move to guide, censure or otherwise intervene in the event one of its members strays from the path. As well as engaging in national and regional consultation, the Forum Chair has a number of options available to him, including issuing a statement, deploying a fact-finding mission, convening a ministerial contact group or establishing an eminent persons' group.
The Forum has acted on three occasions under the aegis of this declaration. The most significant was Operation Helpem Fren (also referred to as the Regional Assistance Mission to Solomon Islands or RAMSI). The other instances were the targeted measures in relation to Fiji (instigated in 2009 and including suspension from the Pacific Islands Forum) and the Pacific Regional Assistance to Nauru (PRAN), which ran from 2004 to 2009 at the request of the then Nauru Government.
While all of these initiatives are branded as 'regional' and carry the imprimatur of the Pacific Islands Forum, they have one other important characteristic in common: Australia played a pivotal role in driving each of them. So, it's fair to say that unless Australia steps up to provide leadership in this space, we are unlikely to see a regional response beyond that of the chief justices' grouping referred to earlier.
It is unrealistic to expect New Zealand to take the lead, given Nauru sits so firmly within Australia's sphere of influence. However, there certainly is a role for Wellington to play given that it is footing the bill for the Nauru justice system to the tune of $1 million per year. Concerned voices from within and close to Nauru have been dismayed that New Zealand has maintained its financial support on the strength of what appear to be weak assurances given at a high level meeting between MFAT and Nauru's Minister for Justice David Adeang and Home Affairs Minister Charmaine Scotty.
Which brings us to Australia. In discussing the reasons for his resignation, Geoffrey Eames was (by chief justice standards) strident in his criticism of Canberra for describing the situation in Nauru as being purely a domestic matter. It is doubtful that recent statements about the importance of 'cultivating' the rule of law in Nauru will comfort those who have criticised Australia's silence on this issue.
Given the history of Australia's involvement with Nauru, which started before independence and is much more complex than the most recent phase centred on processing of asylum seekers, it seems disingenuous to seek to adopt a 'hands off' approach at this juncture. The interweaving of the bureaucracies of Nauru and Australia, which has involved key positions in the Nauru government machinery being occupied by Australian public servants and contractors, is extensive. For some, it tends to undermine the credibility of Australian protestations about the importance of sovereignty.
Australia runs the risk of sending mixed messages to its Pacific island neighbours about how much value it places on democratic norms. As Bal Kama commented this week:
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.
Bal warns that the Nauru precedent may come back to haunt Australia. We should hope he is wrong but be aware of increasing concerns that he may be right.
Photo by Flickr user ARM Climate Research.