Nauru 19: Australian judge blasts 'appalling' persecution of protesters

Australian judge Geoffrey Muecke is reluctant to go on the record. It is “anathema” to him that any judge, retired or active, would speak publicly on a case they had heard.

But he feels he has no choice.

“I’m appalled by the way the Nauruan government has treated 19 of their own citizens and have regarded them as guilty and being deserving of the maximum sentence of imprisonment which can be imposed, without even lifting a finger to try and see they receive a fair trial in their own country,” he tells Guardian Australia.

“I’m only speaking out now because I think the Nauru 19’s story deserves to be known by the wider community in the democratic and civilised part of our world, and that hasn’t to my mind happened sufficiently.”

For more than four years, the group known as the Nauru 19 has been targeted in extraordinary ways. They have faced serious criminal charges, been denied legal assistance and access to external lawyers, been subject to blacklists and travel bans, and allegedly denied access to medical treatment.

It began in 2015, when demonstrators – including current or former MPs and presidents – gathered outside Nauru’s parliament following the expulsion of three members who had criticised the government in foreign media, amid allegations of corruption and the sacking and deportation of two judges.

Police pushed back and the protest spread to the nearby airport runway and forced the diversion of a plane. Rocks were thrown through windows.

Police arrested a number of protesters including Mathew Batsiua, one of the suspended MPs, and later two other opposition MPs, Squire Jeremiah and Sprent Dabwido.

The 46-year-old Dabwido, who served as the country’s president from 2011 to 2013, died of cancer in Australia in May after seeking asylum and treatment in Australia.

Charges of unlawful assembly, riot and disturbing the legislature were laid and a group of 19 were prosecuted. The case split two ways as three pleaded guilty but most sought to defend themselves.

Muecke, who was contracted by the Nauruan government to hear the criminal case against 19 Nauruan protesters and politicians, says he now regards the group as among his heroes.

“They deserve at least someone who has been around and seen what happened to say something in support of them.”

‘We expect the courts to convict these criminals’

The government’s response to the guilty pleas astounded Muecke.

“The minister for justice stood up in court one day and said … we expect the courts to convict these criminals and lock them up for the maximum sentence allowed,” Muecke says.

He says the minister also reminded the sentencing magistrate that her contract was coming up for renewal in coming months, and suggested the president might base his decision on her ruling.

“That was said in open parliament,” Muecke says. “Three weeks later, the magistrate sentenced these three to quite modest sentences, to her great credit. Her contract was not renewed and she went back to the Solomon Islands.”

The government appealed what they said were “manifestly inadequate” sentences and the supreme court increased them – in one case by 700%.

The trio appealed to Australia’s high court, designated under a bilateral treaty as the highest avenue of appeal for Nauruans, which sent the case back to the supreme court, only to have it increase their sentences again.

They relaunched another appeal but unbeknown to the public, in December 2017 the Nauruan government had given its Australian counterpart the required 90 days notice that it was ending the 43-year-old treaty.

By the time the public found out, the three months had lapsed, cutting off access to the high court with no alternative appeal court yet established.

Some months later a court of appeal was established with far broader scope than the high court and a pool of judges from across the Pacific – an established practice in the region.

Asked if he believes this was linked to the Nauru 19 case, Muecke replies: “Absolutely”.

“It was the only link. That was why they did it.”

The Nauruan government has been contacted for comment. Over the years it has forcefully rejected any criticism, accusing critical reports of seeking to “denigrate the legal system” and [insult] members of our judiciary”.

‘Shameful affront to the rule of law’

Muecke was hired by the Nauruan government as an independent judge to hear the criminal case against those who pleaded not guilty but things did not go as the government hoped.

In September 2018, he ordered a permanent stay of prosecution, finding that the government had gone to such extraordinary lengths to see the demonstrators punished, which he described as “shameful affront to the rule of law”, that there was no chance of a fair trial.

Muecke found the government was operating a blacklist preventing the group from gaining employment or income from housing, was acting in ways contrary to the rule of law, and that the then minister for justice was deliberately attempting to influence the courts.

“The findings I made on the evidence before me convinced me that the government of Nauru was going to do all that it could, including affronting every rule of law that was necessary, to ensure that these people who they regarded as criminals, should not get a fair trial and should be convicted and sentenced for severe lengths of imprisonment,” Muecke says.

“Everything the government of Nauru did was directed towards that aim.”

The government responded that his ruling was “wrong in law and needed to be corrected”.

Muecke also ordered the government to pay more than $220,000 in legal fees to allow the group their right to a legal defence.

The government didn’t appeal the order. First it denied it existed, then, according to Muecke, it just ignored it.

Three days after his ruling Muecke’s contract was terminated.

His ruling that no trial go ahead – delivered the day before he left the country – did him out of a job. And he says the government still hasn’t paid him around $6,000 for the one he had already done.

“The money doesn’t matter all that much,” he says. “What matters more is that the judiciary who are asked or invited into this country, or any country, should not go in thinking they will only get paid if they make the right decision.”

Ten months later Muecke’s ruling was taken to the new court of appeal, which overturned it and ordered a retrial.

Lead defendant Batsiua noted at the time the court did not find against Muecke’s findings about the misconduct of the Nauruan government.

“As I see it we are basically back to square one,” he said.

Last week the retrial judge, Daniel Fatiaki – a controversial former chief justice of Fiji – rejected applications for another permanent stay and for the defendants to have a government-funded defence.

Fatiaki told the court he believed Nauru had no fundamental right to a defence and that “a criminal trial in this country can begin, continue and end without a defendant being represented”.

He ordered the new trial to start this week with only one fundamentally unprepared legal aid officer to represent all 15.

At least two members fled the country before a travel ban was declared. Squire Jeremiah and his cousin Rutherford Jeremiah have sought political asylum in Australia, joining the wife of the late Sprent Dabwido.

‘Nauru should be looked at in a different way’

Nauru’s economy is almost entirely reliant on its arrangement with Australia to detain, process and host asylum seekers. Integral to the Australian government’s infamously tough stance on refugees, Nauru has become increasingly emboldened in exercising its sovereignty in ways antithetical to rule-of-law democracies.

The country might not have Australia’s explicit approval for what it’s doing to its own citizens but it doesn’t have its disapproval either.

The Australian government, which has been contacted for comment, has been conspicuously silent on the actions of two successive governments, even when that included tearing up the decades old treaty.

“The Australian government say they’re not going to get involved in … the domestic affairs of any other country,” Muecke says. “There’s force in that but Nauru perhaps should be looked at in a different way.”

“I don’t know what the answer is, and I accept that both governments are in a bind politically and financially. I’d have hoped our government would have done something in the public domain to put a bit of pressure on the Nauruan government to observe the rule of law.”

A new prison widely believed to have been built – with Australian funding – for the sole purpose of detaining the Nauru 19 has recently opened.

Muecke says he believes his commission by the Nauruan government technically contracts him to hear the new trial but accepts that is not happening.

“I never thought for a moment that I might have to leave my judicial independence and integrity at home and not pack that to go to Nauru,” he says.

“I thought it was a country like all others, where the rule of law applied and I would sit and make my decision according to law and without fear or favour, affection or ill will. That’s the oath all judges make.”