Judge says government of Nauru has decided protesters are guilty and will spend whatever it takes to jail them

The Nauru 19 cannot receive a fair trial in that country because the executive government has already decided they are guilty, and will do whatever it can, and spend whatever money it has, to convict and jail them, a senior judge has ruled.

In an excoriating judgment, the Australian judge Geoffrey Muecke said the actions of the Nauru government – and in particular those of justice minister David Adeang – were “a shameful affront to the rule of law”. The judge granted a permanent stay in the proceedings, meaning the case will not continue.

In the long-running case – arising from a protest in 2015 over the suspension of members of parliament for giving interviews to foreign media – the Nauru government has sought to convict and jail the protesters, whose number includes sitting parliamentarians, a former minister and a former president.

Muecke’s judgment said there was no chance of fair trial on Nauru, given the government’s attitude and actions towards the Nauru 19.

“My conclusion is that the executive government of Nauru does not want these defendants to receive a fair trial within a reasonable time as guaranteed to every Nauruan in the country’s constitution, being the supreme law of Nauru,” Muecke wrote.

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“Further, I conclude that instead of fair trial for these defendants within a reasonable time, the executive government of Nauru wishes [only] that they, and each of them, be convicted and imprisoned for a long time, and that the government of Nauru is willing to expend whatever resources, including financial resources, as are required to achieve that aim.”

The judge accused Adeang of failing to uphold the constitution he is charged to defend.

“I find that it has been understood by the public legal defender and those in his office, by all legal practitioners on Nauru, and by all pleaders on Nauru, that the minister for justice expects that no legal assistance or representation is to be provided by them to any of the defendants before me.

“Further, I find that it is understood by those persons that the minister for justice of Nauru considers that all these defendants are guilty of very serious crimes against the parliament of Nauru, they should be shown no mercy, and they should be locked up for considerable periods. It is understood that the minister for justice believes that, as such, the defendants are criminals who deserve no assistance or representation by anyone on the island of Nauru.

“In my judgment, the findings and conclusions to which I have just referred, constitute a shameful affront by the minister for justice to the rule of law in Nauru, which he professes to operate for and give protection to the citizens of the country.”

Facebook Twitter Pinterest Members of the Nauru 19 outside the Nauru courthouse.

Adeang has already overseen the unilateral removal of three judicial officers – magistrates Peter Law and Emma Garo, and former chief Justice Geoffrey Eames – for making decisions the government did not agree with. They have been forced not only from the judiciary, but out of the country. The Nauru justice system uses foreign judges and magistrates because the country’s legal fraternity is very small.

Ahead of Muecke’s judgment Thursday, Adeang threatened the judge in parliament. Adeang said he was “fighting against those mistakes of people with white ears” – a pejorative term for white people – and directly targeted the judge: “Maybe we have to deal with Justice Muecke first.”

In his judgment, Muecke found the government of Nauru operated an unwritten “blacklist”, denying members of the Nauru 19 employment, or the right to conduct business. The blacklist was a matter of government policy, Muecke said.

“I am satisfied and find that this ‘blacklist’ does not exist on a piece of paper but that the government has made it known to employers and businesses on the island that it wishes and expects that the ‘rioters’ be not offered paid employment on Nauru.”

Muecke remains on Nauru. He leaves Friday. He was installed as an independent judge to hear this case only.

The Nauru 19 case has dragged on more than three years, fanned by a febrile and personality driven political climate on Nauru. It was further delayed because the Nauru government defied a court order to pay the defendants’ legal costs, so they could receive a fair trial.

The case had its genesis in 2015, when three parliamentarians were suspended for granting interviews, critical of the government, to foreign media. Hundreds of supporters gathered to protest their expulsion and marched on parliament house with the aim of allowing them to actually enter the building and take their elected seats.

Muecke found the government of Nauru operated an unwritten 'blacklist', denying members of the Nauru 19 employment.

When the protest was resisted by police, it spilled on to the neighbouring runway of the airport and forced a plane to be diverted. Rocks were thrown through parliament’s windows.

Ultimately, 19 protesters – including former foreign minister Mathew Batsiua, former president Sprent Dabwido, and MP Squire Jeremiah – were charged with a variety of offences including rioting, disturbing the legislature, and entering a restricted area. The majority have sought to defend the charges.

Three members of the Nauru 19 pleaded guilty to their charges and were jailed. An application for a permanent stay of their case will be heard in coming months.

Muecke’s decision Thursday is subject to an appeal. The Nauru government has previously indicated it would appeal a stay to the recently formed Nauru court of appeal, the new apex appellate court in the Nauru justice system (after Australia’s high court was removed as an appellate option).

The Republic of Nauru has not yet lodged an appeal nor commented on the permanent stay decision. The Guardian has approached the government of Nauru for comment.

Batsiua said the judgment justified the initial protest.

“We who protested in 2015 against the destruction of parliamentary democracy and the judiciary have been vindicated. This judgment exposes this immoral and corrupt government for what it is.” Batsiua said.

“Our battle is not over. Firstly we will face any appeal. Then we will stand by the three of the Nauru 19 who still face sentence appeals. But we now call on the government to give up their persecution of us. Continuing this case against any of us is a waste of time and money for our country.”

Justice Muecke said the Australian lawyers who defended the Nauru 19 had acted “courageously” on behalf of their clients and faced “threats, intimidation, and abuse”.

Solicitor Christian Hearn, and counsel Mark Higgins, Felicity Graham, Stephen Lawrence, and Neal Funnell said they were proud to have defended the group.

“The government threatened us, including with criminal prosecution for contempt of court. The government also subjected us to racial abuse in the parliament, announced they were monitoring our social media, and threatened to cancel our visas.

“But the court has confirmed the professionalism of our team and rejected the Nauru government attacks and threats against us. This was very welcome.”

Ahead of Muecke’s judgment, Adeang urged the Nauru 19 defendants to “respect the legal process” and said attempting to use overseas media to influence the court proceedings was unhelpful.

“Nauru has a fair and independent justice system and this case, like all cases, will proceed according to the rule and process of law.”