(Trasncript from World News Australia Radio)
The international legal community is calling on the Australian government to take a stronger line with Nauru on observing the independence of the judiciary.
It follows the sacking of an Australian magistrate in the island nation, and moves by Nauru's government to prevent the Chief Justice from returning to the country to carry out his duties.
Australia's policy of sending asylum seekers to Nauru to have their refugee applications processed is being cited as one reason for the federal government to speak up in defence of the rule of law in the island nation.Geoffrey Eames remains Chief Justice of the Supreme Court of Nauru.
But following the unexpected cancellation of his visa by Nauru's government last month he remains in Melbourne, unable to undertake his duties.
There's been no motion in parliament to dismiss him.
And he says he won't stand down.
"No doubt there would be those who would hope I resign. Well that is one option that I won't take. I have a responsibility to stand up for the principles behind the rule of law and that's what I intend to do."
Justice Eames' visa was revoked after he issued an injunction to halt the deportation of magistrate Peter Law.
Mr Law was removed from office, and deported despite the court order.
The Nauru government says the magistrate was sacked after it lost confidence in him.
The South Pacific Lawyers Association is concerns about the conduct of the Nauru government.
Its chairman, Ross Ray, says governments, like their citizens, are bound to follow the "rule of law".
"It's a title or its a phrase often thrown around and sometimes people don't take the time to think it through. What it really means is this. The rule of law ensures that the powerful do not always win. And power can come from position or wealth. What it does not mean is that the powerful control the very system of justice that makes the decision."
The Law Association for Asia and the Pacific says recent events give the impression Nauru's government believes it can override court orders and ignore due-process*.
Speaking from Tokyo, the Association's President, Isomi Suzuki, has called for the government in Nauru to be mindful of the independence of the judiciary.
"Judicial independence is so important to make the rule of law possible, and democratic government can work."
The International Commission of Jurists feels the Australian government's public response to events in Nauru has been inadequate.
The Commission's President in Victoria is Lex Lasry.
"I was disappointed to hear the issue described as just a matter of internal Nauruan politics. Particularly given that the two judicial figures involved were Australian. And also of course given there are people who claim to be refugees in Nauru and they are there at the instigation of the Australian government and they, a number of them, have been charged with quite serious offences that would require them to be before the Nauruan justice system."
Ross Ray of the South Pacific Lawyers Association is among those who'd like to see the federal government pursue the matter more strongly.
"Our government has historically spoken out strongly when it's apparent that there has been an attack on the rule on law in a range of countries in the Pacific or indeed elsewhere, when judges have either been sacked or there have been other allegations made that undermines the independence of the judiciary."
In a statement the government of Nauru says the rule of law is operating and respected.
It states that those critical of its decision to replace key legal appointments have direct links to those people, and that it's the sort of cronyism its seeking to stamp out.
George Williams is a constitutional lawyer and Professor at the University of New South Wales.
He says sending asylum seekers to Nauru gives Australia a major stake in making sure the island nation's judiciary functions effectively.
A Memorandum of Understanding signed between the two countries last year lays out what's expected of Nauru in its treatment of asylum seekers, including that it will assess their claims to refugee status.
Professor Williams says damage has been done to the independence of the judiciary in Nauru, and this casts grave doubt on whether judicial review of the asylum process can be properly conducted.
"You only have to look at the experience of Australia where we of course have had many years of assessing people for their claims to refugee status. And those very often have ended up in courts. Courts have an important job of checking that the assessment process is fair, that natural justice is being given and it has often been the case that assessments have been overturned or processes have had to be started again. And so oversight of the process is one of the important aspects."
Chief Justice Eames says amid the turmoil in the judiciary, court cases in Nauru are simply being adjourned.
He anticipates an enormous delay in proceedings.
"Something like 80 or more case in the Magistrates Court have been adjourned until March. Now in March there's a Supreme Court Circuit due to commence and I'm supposed to be the judge conducting that. There is only one court house in Nauru. So there is no way that hearings can take place in both the Magistrates court and in the Supreme Court. But if I'm not permitted to return to Nauru then none of the Supreme Court cases will be undertaken at all."
Professor George Williams says justice delayed can be justice denied.
"If there isn't a functioning court system well people in the first place don't have somewhere they can file a case. And there are many current cases before the courts of Nauru that do involved asylum seekers, particularly some cases of riot and the like in their detention facilities. And then there is the possible cases in the longer term where people may challenge assessments they may get about their refugee status. And if those can't be heard either because there's not a functioning court or a court doesn't have the resources to ever get to their case. In either situation I think it would mean Nauru would not be properly complying with their commitment under the Memorandum of Understanding with Australia."
Australian Andrew Jacobson has replaced Peter Law as magistrate in Nauru.
The International Commission of Jurists says Australians make a significant contribution to the judiciary in Nauru.
The Commission's President in Victoria, Lex Lasry, says however that recent events will make people cautious about taking up roles there.
"They are going to find it harder to recruit people to do that sort of work if they have to be recruited on the basis they must do the government's bidding. People will go and work in those countries as long as they are clear that they are entitled to carry out their duties independently from any interference from the government. For my part at least, if I was being asked to go to a country like that if I couldn't be given that guarantee then of course I wouldn't go."
Ross Ray from the South Pacific Lawyers Association says doubts about the robustness of Nauru's legal system will also deter investment.
"If overseas investors want to invest in, for example a mine and developing resourcing, then they will so more willingly if they've got confidence that if something goes wrong they can access an independent and fair minded judicial system. If they think that judicial system is controlled by one of the powerful and influential parties then it is a disincentive."
The Department of Foreign Affairs and Trade says Australia has expressed concerns about the implications for the rule of law in Nauru to the country's President and Justice Minister.
It says Australia continues to work through the issue with the Government of Nauru.
