Three of ‘Nauru 19’ win right to continue to speak about the case, after a government attempt to impose a gag order failed

This article is more than 2 years old

This article is more than 2 years old

Three of the “Nauru 19” who had their appeal rights to the high court of Australia extinguished by the Nauru government, have had their bail continued by a Nauruan court.

In a long-running case that has gone to the very operation of Nauru’s justice system and democracy, the three protesters also won the right to continue to speak about the case, after a government attempt to impose a gag order on them failed.

John Jeremiah, Job Cecil and Josh Kepae were charged, and pleaded guilty to public order charges over a 2015 protest at the Nauruan parliament. They were part of a hundreds-strong protest against several MPs being banned from parliament for making comments critical of the government. In total, 19 people, including a former minister and former president of the country, were charged.

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The three were in the process of appealing their prison sentences to the high court of Australia – the final court of appeal in the Nauruan legal system – when the Nauru government unilaterally, and secretly, terminated that right of appeal.

The Nauru parliament has not yet sat to consider new legislation to create a new appellate court.

In a late-night sitting of the Nauru supreme court last week, the director of public prosecution argued for the immediate remand of the men in custody, telling the court that no appeal right existed anymore and that their sentences must therefore be served.

But written submissions to the court from Australian barrister Stephen Lawrence argued the three were “now in the unfortunate and possibly unique situation of having had their existing appeal rights removed by service of a notice by the executive: the same entity who prosecutes them”.

“The broader circumstance is that the Republic of Nauru now appears not to have an appellate court. These are truly extraordinary circumstances and this honourable court should respond in a way befitting a court of inherent jurisdiction to ensure justice and with a broad power to prevent injustice.

“It is clear that the executive has intervened in these proceedings in a way gravely to the detriment of the applicants,” Lawrence said.

Chief Justice Filimone Jitoko granted bail until June pending the establishment of a Nauruan appellate court.

In an extraordinary development, the DPP also sought to impose an “immediate gag order” preventing the defendants, other accused, and lawyers in the case from making any comment to the media. The chief justice declined to grant the order.

Mathew Batsiua is a former justice minister of Nauru and was one of the parliamentarians whose suspensions sparked the initial protests. He is also a member of the “Nauru 19” charged over the demonstration. He said the gag order application by the prosecution was especially concerning, and he welcome the court’s decision not to grant it.

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“Our Nauruan constitution protects the rights of free speech and open justice. The Waqa government has restricted these rights including by passing anti-public assembly laws and the like. I am calling on the executive government to respect free speech and the other rights of citizens in our country,” Batsiua said.

The Nauruan government announced its plan to create a Nauruan court of appeal in February, as part of the country’s celebrations marking the 50th anniversary of its independence.

The justice minister, David Adeang, said in March that the current cost of appeals to the high court of Australia were prohibitive.

“At the moment, litigants contemplating further appeals to the high court are often discouraged both by the costs involved and the distance of a court in a foreign country.

“This move also reflects our self-confidence as a nation state and reinforces our sovereignty.”

Adeang said the government, under the president, Baron Waqa, was proud of the reforms it had brought to the nation’s justice system.

“The former system which saw only one judge and one magistrate was open to corruption and cronyism, but we have created arguably the most transparent and accountable justice system in the Pacific, and have appointed several highly respected international judges to serve in our court.”

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But the government did not state publicly it had unilaterally terminated its appeal court agreement with Australia on 12 December, which meant that the high court no longer had jurisdiction to hear the appeal of the three protestors when it came before the court in March.

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.