Nauru withdraws right of appeal to Australia’s high court, blocking political protesters who were due for hearing

This article is more than 2 years old

This article is more than 2 years old

Australia’s high court cannot hear the appeal of three Nauruan political protesters, after the Nauruan government unilaterally withdrew the right of appeal to the high court, without informing them.

Lawyers for the the trio fear they could be in custody by Thursday, when their bail is reviewed.

The former Nauruan president Sprent Dabwido has accused the current government of running a political prosecution, and manipulating the criminal justice system to silence opponents – and Australia of being complicit in that.

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John Jeremiah, Josh Kepae and Job Cecil are members of the Nauru 19, a group charged over a 2015 protest involving hundreds of people outside the Nauruan parliament. The demonstrations, which caused minor damage to the parliament and spilled on to the country’s airfield, were over MPs being suspended from parliament for making comments critical of the government.

Jeremiah, Kepae and Cecil pleaded guilty in 2016, but successfully appealed to the high court of Australia in November after their prison sentences were increased by the Nauruan supreme court.

The high court sent the matter back to the supreme court for redetermination. The supreme court increased the sentences again, so the three protesters intended to again take their case to the high court.

But in Sydney on Monday morning, the high court informed parties: “The agreement between Australia and Nauru that gave the high court of Australia jurisdiction was terminated as at 13/3/18.”

On 12 December last year, the Nauruan government quietly informed Australia it wished to unilaterally withdraw from a treaty, signed in 1976, which made the Australian apex court the highest appellate court in the Nauruan justice system. Nauru made no public announcement of its decision to terminate the treaty, which would take effect after three months.

The withdrawal had effect from 13 March, just days before the trio’s appeal was due.

The president of Nauru, Baron Waqa, told parliament in February – two months after his government privately informed Australia it was withdrawing from the treaty – that it intended to bring a bill severing ties to the Australian high court and establishing a Nauruan court of appeal.

“The establishment of a final appellate court in the republic can be regarded as an affirmation of Nauru’s sovereignty, independence and maturity as a nation,” Waqa said.

But that bill has not yet gone before parliament, and will not be debated before April.

In the meantime, the sole remaining avenue of appeal for the three – and others whose charges will follow later this year – has been removed without replacement. There is no other avenue for appeal.

Dabwido, himself a member of the Nauru 19, has launched a swingeing attack on the Nauruan and Australian governments.

“Today our lawyer entered the high court registry in Sydney and was told that staff had been instructed ‘weeks ago’ not to accept any more Nauru appeals. Three members of the Nauru 19 are now in a bizarre legal ‘no man’s land’,” Dabwido said.

“These events appear to have been carefully stage-managed by the Nauru government. The three had appeal rights when they lodged their case in the supreme court. Then an adjournment was refused and the matters were rushed on to be argued and decided at a time when the government knew that the treaty had been secretly terminated and there was no alternative appeal court in place. Shamefully our lawyers were never informed nor were the Nauru public.”

Dabwido said the rule of law had been systematically and steadily eroded in Nauru, with the judiciary sidelined and political opposition silenced.

“But what is truly disappointing is that the Australian government has become complicit in this political sham prosecution. They didn’t tell our lawyers about the notice being served in December. Calls and emails to the Australian high commission have since gone unanswered. Now Julie Bishop states publicly she supports this secret and politically motivated treaty termination, which has left Nauru entirely without an appeal system. What has happened to Australia’s stand on human rights and the rule of law?”

Australia’s foreign affairs minister, Julie Bishop, said in a statement: “Australia supports Nauru’s sovereignty and its December 2017 decision to terminate the treaty in advance of the nation’s 50th anniversary of independence.”

Nauru’s criminal justice system has, for several years, been criticised as politically compromised and as failing to act independently of the government.

Previous magistrates and judges have been summarily dismissed and deported from the island for making decisions the government has disagreed with.

In 2015 New Zealand suspended aid to Nauru’s justice sector after expressing long-running concerns over the erosion of the rule of law.

Also in 2015, Bishop said the Australian government “was concerned” about Nauru’s democracy and the independence of the justice system.

“We urge there to be an adherence to the rule of law, that their justice system operates properly, that people are not denied natural justice, that they’re given an opportunity to present their case.”