Nauru & the Rule of Law - The Eames Resignation

 

On 13th of March The Hon. Geoffrey Eames, A.M. Q.C. resigned as the Chief Justice of Nauru.

While the circumstances which led to his departure received some coverage in the Australian media, the controlled nature of the media in Nauru itself, and processes which prevent Nauru Opposition members speaking publicly on such matters, have limited the access of people in Nauru to material relating to his resignation.

Sadly, there is still no judge in Nauru to adjudicate on the constitutionality or otherwise of the Government of Nauru’s own actions both before and after Chief Justice Eames resignation. There is a serious question whether new immigration and deportation legislation is consistent with the Nauru Constitution. 

Chief Justice Eames provided a detailed exposition of the problems which he faced, and the circumstances of his departure, in a media release on the day of his resignation.  In the interests of ensuring that an accurate picture is available to all, extracts are provided below, together with the option to download the statement in full.

Rod Hagen, May, 2014

Judge’s Chambers

Supreme Court of Nauru

13 March 2014

Media Release

The Hon Geoffrey M Eames AM QC


Geoffrey Eames resigns as Chief Justice of Nauru

Negotiations with the Nauru government conducted by the Australian and New Zealand foreign ministers have failed to produce a public acknowledgment by the Nauru government that the arrest and deportation of the Resident Magistrate on 19 January 2014 constituted an abuse of the rule of law and a denial of the independence of the judiciary.  Nor has the Nauru government withdrawn false allegations made by ministers against myself and the Resident Magistrate in its belated attempts to justify its unlawful actions.   My own discussions with President Waqa failed to achieve any better outcome.

....

Given the government’s failure to concede that its actions against the Resident Magistrate and myself constituted breaches of the rule of law, it  is clear that my relationship with government is such that I could no longer perform the duties of  Chief Justice even if my visa was restored.  I could not be assured that the separation of powers and the independence of the judiciary would be respected.  This would greatly inhibit the role I could play as a judge of the Supreme Court.

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Judicial independence

It is to be kept in mind that, for reasons which had been comprehensively set out in his judgments on 9, 14 and 17 January 2014 , the Resident Magistrate, Mr Peter Law (acting in his additional role as Registrar of the Supreme Court) found that there was a prima facie case that the deportation orders signed against two Nauru  residents, Rod Henshaw and Hareef Mohammed, on 8 January 2014 by the Minister for Justice and Border Control were unlawful.

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The Minister for Justice sent an SMS text message demanding an explanation from the Resident Magistrate for his actions in staying a deportation order that had been “endorsed” by and “so-ordered” by Cabinet.  As the Resident Magistrate pointed out , these were interim orders only, and if the government did not wish to wait for the judicial review hearings to commence in the Supreme Court, it had a right to review or appeal the Court’s interim orders.

In this case, however, rather than  have its counsel attend the hearing  which had been set down before the  Registrar on Monday 20 January 2014 - so as to argue that the deportations  were lawful - the government had Mr Law arrested and forcibly deported on Sunday 19 January, in defiance of injunctions granted by me from Melbourne and served in Nauru.

The government has never attempted to explain why the Registrar was wrong in interpreting and applying Nauru law as he did.  Nor has the government sought to make a case in open court as to the invalidity of the Court’s orders.

....  

[The  Solicitor General of Nauru] Mr Bliim subsequently  resigned in protest at the treatment of Mr Law and myself, as did Ms Janine Hebiton, the Senior Government Lawyer with the Department of Justice.

Rather than debate the issues in open court the government sacked and replaced the Registrar/Resident Magistrate and later introduced a new Immigration Act that, unusually, was to operate retrospectively.

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The Immigration Act 2014

The new [Nauru] immigration legislation allows for the arbitrary deportation of non-citizens without them being given notice or grounds for their deportation and it purports to deny the courts the right to review the decision. 

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The legislation specifies that that prohibition includes any proceedings by way of prerogative writ and judicial review. The new legislation has been made retrospective, so as to override rights that had previously existed under Nauru law. 

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There is a serious question whether the new legislation is consistent with the Nauru Constitution. 

The Constitution protects fundamental rights and freedoms, and provides in Article 10(9) that it is  for “an independent and impartial court or other authority” to rule on the existence or extent of those civil rights.  That determination shall be “fairly heard” within a reasonable time.

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Although it is the final appellate court under Nauru law for many disputes, the High Court does not have appellate jurisdiction to determine  the interpretation or effect of the provisions of the Nauru Constitution. ...


Sovereignty and the Rule of Law

In response to critics of its actions in deporting the Resident Magistrate in defiance of  court orders, and in cancelling my own visa, the government declared that the criticism amounted to an attack on the sovereignty of the nation of Nauru. 

That is not the case.  The President has the constitutional right to appoint judges to the Supreme Court and - after consultation with the Chief Justice - to appoint magistrates.  That does not mean, however, that the government has the right to arbitrarily dismiss judges or magistrates.

The government’s conduct has attracted world-wide condemnation by organisations concerned with promoting the rule of law. 

...

The allegations of “cronyism” and judicial corruption 

The Nauru Constitution provides that a judge of the Supreme Court cannot be removed from office except on the ground of proved incapacity or misconduct and upon a vote of two thirds of the members of parliament.  That protection from arbitrary dismissal ensures that judges cannot be successfully pressured by the threat of removal from office if they do not make decisions that favour the government.  That safeguard provides fundamental support for judicial independence which, in turn, is an essential bastion of democracy.  The independent and impartial role of the courts is not always accepted by politicians, however.

Minister for Home Affairs, Mrs Charmaine Scotty MP, complained about court rulings that had gone against the Executive, asserting that “in previous events we have had the Chief Justice overrule our parliament in regards our state of emergencies.”  It is true that from time to time judges, including me, have ruled that governments had acted in breach of the Constitution or otherwise had exceeded their powers.  In all such cases the decisions were supported by comprehensive written reasons. An independent judiciary must  be willing to make conscientious decisions with which government may is agree.

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Without seeking or obtaining a two thirds vote in Parliament, as required by the Constitution on grounds of proved misconduct, the government effectively achieved my removal from  the office of Chief Justice by the simple expedient of cancelling my visa.

Rather than bringing credibility to the Nauru legal system, the government’s actions against myself and the Resident Magistrate have undermined it.

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As Chief Justice  it has been both my  duty and a privilege to defend the rule of law in Nauru, on behalf of all residents, both citizens and non-citizens.

I bid a reluctant farewell to the people of Nauru.  I wish the nation well, as it faces many great challenges.

Geoffrey M Eames AM QC

13 March 2014


Click here for a full copy of Chief Justice Eames commentary in .pdf form

Extracts from Chief Justice Eames comments upon resignation:

Eames_Resignation_as_Naurus_Chief_Justice_files/Eames%20Resignation%20Release%2013%20March%202014%20No%205.pdf

For some further resources / articles / letters relating to the Nauru legal crisis see Nauru & the Rule of Law

NEW! 4th August 2014 The Hon Geoffrey M Eames AM QC media release on the appointment of new judges to Nauru Supreme Court in .pdf form -click to download