Nauru to appeal unconstitutional law ruling

The parliament building in Nauru. Picture: Supplied/ @ChrisTrott

YAREN, 04 JULY 2018 (RNZ PACIFIC) — The Nauru government says it will appeal a Supreme Court ruling that a recently passed law is unconstitutional.

It says it will also appeal the court’s order that the government pay legal fees of the so called Nauru 19.

Last month, Supreme Court judge Geof Muecke declared the Civil Procedures Amendment null and void and ordered the government pay about US$165 thousand in legal fees for the 19, who were arrested during an anti-government protest in 2015.

Justice Minister David Adeang said the ruling was surprising given that the legislation gave defendants access to legal aid.

“The legislation passed by Parliament recognises the importance of due process and provides for every person charged with a criminal offence to have representation by way of a public defender, at no expense to them,” Adeang said.

But Justice Muecke called the legal aid offer of a maximum per case of US$2,231 “absurd” and said the Nauru 19 are entitled to a fair trial as is anyone on Nauru.

He said in his judgement that he calculated reasonable fees that he set significantly below what lawyers would get under legal aid in New South Wales.

Adeang said Nauru can’t be expected to fund expensive international lawyers and that the ruling sets “an unfortunate precedent”.

“The ruling by His Honour means that we must pay hundreds of thousands of dollars to provide expensive international lawyers to defendants charged with criminal acts. This is not only unprecedented but excessive.” he said.

“While funds allocated for the recruitment of lawyers under legal aid are comparatively modest, this has to be seen in the context of Nauru’s economy which is small. Nauru is not a rich country and the court’s directions as to legal aid in this case has far reaching implications for the country’s budget.”

The minister said he was not aware of any other nation that would provide this level of legal assistance to defendants.

He said defendants wanting private representation should pay for it themselves.

“Those who cannot should, in line with a fair and just legal system, be provided with a public defender, which is what the Government ensured in the recent legislation.”

But despite the protestations of poverty in 2017 the Nauru government itself hired one of the biggest law firms in Australia, As Hurst, to prosecute the case for it.

That relationship ended unhappily about six months later.

The judge also pointed out that the Nauru 19 have been denied work on the island and he revealed that one of the defendants had been renting his house to a government official but that that official had been ordered to end the tenancy.

The lawyers from Australia have been working pro bono since August of 2016, but say they are not in a position to continue to do that.

Justice Muecke was also scathing about the Civil Procedures Amendment Act being rushed through Parliament at the beginning of last month.

He ruled that its provisions on legal representation and legal aid clearly contradict provisions in the Nauru Constitution and he declared the entire bill void and of no effect.

Justice Muecke also concluded that Nauru was not in a position to provide enough lawyers with the appropriate skills to provide the Nauru 19 with fair representation.

It is unclear how the government will appeal the ruling after it cut ties in April with the Australian High Court that acted as Nauru’s Court of Appeal.

At the time, Nauru said it wanted to establish its own appellate court to give the country greater independence.

Justice Muecke meanwhile, who is a former a chief judge of the South Australia District Court, said failure by the government to make the payment could result in him putting a stay on the Nauru 19 case, which is due to begin in three weeks, and be completed before the Pacific Islands Forum meeting in early September.