The island republic of Nauru has been subject to what amounts to a coup d’etat by its President, Baron Waqa, and his supporters, as a way of avoiding a series of imminent legal decisions that would go against them. Their actions leave the local population of 10,000, and hundreds of asylum seekers deposited there by Australia, in a country where the entire legal system has been not merely nobbled or disregarded but expelled. There is no other way to read the current crisis there, and Immigration Minister Scott Morrison’s remarks that the matter is an “internal one for the people of Nauru” is nonsense, both de jure and de facto.
In the last few weeks and days, the Nauruan government — the president is chosen from a 15-member Parliament, there is no separate head of state — has refused a visa to Geoffrey Eames, the country’s chief justice, resident in Australia, and deported its chief magistrate, Peter Law, the senior judicial figure in Eames’ absence. Law was deported so as to be prevented from blocking the deportation of two Australians; one, Rod Henshaw, an ex-ABC broadcaster,was the former spokesperson for the previous government. Eames issued an injunction to prevent Law’s removal, but the refusal of a visa made it impossible for him to intervene.
Law was also about to begin hearing cases concerning resistance — or, translated from government-speak, rioting — by some of the 900-plus asylum-seekers whom we have sent there. Since Nauru’s 1968 constitution guarantees a wide range of rights for people who simply happen to be in Nauru, rather than citizens only, any showdown between the asylum seekers and the governments of both Nauru and Australia may produce results that neither government wants. Indeed, the potential is open for evidence called in such cases to put members of the Nauruan government in line for prosecution.
So far, the media has called this a “crisis”, a slide to “chaos”, a situation of “limbo” — they are yet to call it a coup, because they cannot recognise that it is the takeover of one branch of government by the other, in a society with constitutional separation of powers. Yet a glance at the constitution of Nauru shows that this cannot be other than the case. Section 31-c of the Nauru constitution states:
“No person is qualified to be elected a member of Parliament if he-(c) has been convicted and is under sentence or is subject to be sentenced for an offence punishable according to law by death or by imprisonment for one year or longer”
Section 51-1 states:
“A judge of the Supreme Court may not be removed from office except on a resolution of Parliament approved by not less than two-thirds of the total number of members of Parliament praying for his removal from office on the ground of proved incapacity or misconduct.”
And here’s the kicker:
“If the office of Chief Justice is vacant or if the Chief Justice is for any reason unable to perform the duties of his office then until a person has been appointed to and has assumed the duties of that office or until the person holding that office has resumed those duties, as the case may be, those duties shall be discharged by such one of the other judges of the Supreme Court as is designated by the President or, if there is no other judge of the Supreme Court, by a person designated by the President, being a person who is qualified to be appointed a judge of the Supreme Court.”
By denying its own chief justice a visa and deporting the resident senior judicial figure, Waqa has created a perfect limbo. Eames cannot function effectively as a chief justice, but clause 53 leaves the President free to say that he is not “unable to perform his duties”. And who would one appeal such an interpretation of the constitution to? To the Supreme C … Oh.
“We should call it what it is, an illegal takeover of power, a coup, in a country whose remnant sovereignty has been hollowed out by our clinically insane asylum mandatory detention policy …”
Thus, the President and members of Parliament can act with impunity. The only thing that could bring them down would be a vote of no-confidence in Parliament, and they are unrestrained from acting illegally and still holding power.
Of course, nothing stops the Supreme Court of Nauru from sitting outside the country. But obviously, practically, it is impossible. And that is the essence of this sort of coup — it uses the limbo between powers to create a situation of ruling by fiat. It is not total power — Parliament could always remove Waqa as President — but it removes the chief countervailing power in a state where the executive and legislative functions are closely fused.
Put it this way: we would recognise it as a coup here if the entire High Court, while holidaying together in Jamaica, had their passports cancelled. Why do we not recognise it here?
The answer, of course, is that we look at Nauru now with the colonial eye — as the Australian government does, and as Nauru looks at itself. The place has now been broke for nearly two decades. The compensation paid for decades of guano mining and colonial treatment of its citizens has long gone, and there’s no more of it. Tourism-wise, it will never compete with closer and pleasanter isles.
It relies on Australia for everything from water-filtering to the dialysis runs many of its population must undergo, suffering from the world’s highest rate of diabetes-related renal failure. It is the perfect pseudo-sovereign dependency — it would literally die without us. Yet it is vital to the fiction of the “Pacific solution” that it be regarded as a sovereign state, with which we have a treaty for the warehousing of a subject population of asylum seekers.
I have no clue how it is possible to legally detain hundreds of asylum seekers on Nauru who have committed no crime there, given that the constitution has a rather detailed section on habeas corpus, but the absence of a legal system appears to make it doubly invalid. The effect is that we made a treaty/agreement for the transport of this human cargo with a government with a functioning legal system; the treaty/agreement remains, but the government has shifted underneath it, changing the status of the asylum seekers there. So it cannot be a merely internal matter.
What happens now? Who knows? Eames is appealing the refusal of a visa to the Australian High Court, which can be done under Nauru law, such as it still exists. A replacement magistrate is said to be on his way from Australia — but the putting into limbo of the chief justice is the constitutionally critical thing. Could the President pull a reverse play and appoint an interim chief justice on the grounds that Eames is unable to perform his duties, and ram through the asylum seeker cases with a bunch of cronies? Is he acting under instructions from the Australian government, which has been willing to explicitly strong-arm the place in the past?
Really, anything is possible. But we should call it what it is, an illegal takeover of power, a coup, in a country whose remnant sovereignty has been hollowed out by our clinically insane asylum mandatory detention policy, where the cost of a journalist visa has gone up 40 times — from $200 to $8000 — and where it costs us $1500 per day to keep asylum seekers in conditions of physical and mental anguish.