OPEN LETTER FROM NAURU LAW SOCIETY TO PRESIDENT WAQA His Excellency President Baron Waqa, M.P. Office of the President REPUBLIC OF NAURU Re: Open Letter Your Excellency, I write on behalf of the members of the Nauru Law Society to express our deep concern with the shameful display of what I term Nauruan “arrogance” to the rule of law last Sunday at the airport whereby the two highest ranking officers in the Nauru Police Force, who should be apolitical and are duty bound to uphold the law of the country, disregarded the injunction to hold off the deportation of Peter Law that was issued by the Chief Justice. The undignified behavior of a member of your Cabinet was no surprise to us, the Nauruans, because that is the way he is. There are members of the Law Society who are employees of the Government or its entities, the Speaker of Parliament and staff of the Parliament. These persons are dissociated from this open letter for obvious reasons. The lesson you are showing to the Nauruan people is that it is okay to ignore or disregard the orders and decisions of the Chief Justice of the Nauru Supreme Court. Is this the intention of your Government? Or was it a “black” man showing a “white” man that laws don’t matter on Nauru when it suits their purpose? Whatever it was it was a deliberate and calculated act by you and the Minister for Justice. You and the Minister simultaneously terminated Peter Law’s appointed as Resident Magistrate and Registrar of the Supreme Court respectively on Friday 17 January 2014. The removal order was held until the morning of Sunday 19th January about 4 hours before the flight arrived, thinking that Peter Law will not have time to get an injunction to stay the removal order. He did but it was ignored! You or the Minister for Justice then ordered the cancellation of the visa of the Chief Justice so that he could not travel to Nauru on the Sunday night flight to adjudicate on the Peter Law injunction and the Rod Henshaw injunction that was to expire at 2pm on Monday 20th January inst. Wicked! One can only conclude that the great master plan is being implemented after years of planning. Firstly the lining up of the Nauruan ducks by sacking expatriate officers in the line of command (Secretary for Justice, followed by the AFP Commissioner of Police) had been implemented shortly after your Government took office; and amending the Immigration Act so that the Minister for Justice is given the power to exercise his discretion as to who he can deport from the island was the final act. Maybe you knew or were naïve about the intention of your Minister when he made the new law. Unfortunately he forgot that any public law that affects the right of a person can be subjected to judicial review by the Supreme Court on application of the aggrieved person. This is permitted by our Nauruan laws under the Civil Procedure Rules 1972. The power of the Minister to remove a Prohibited Immigrant under section 11(1) of the amended Act is subject to him stating why he has declared a person a prohibited immigrant under section 11(2). If he does not state why he has declared a person a prohibited immigrant then he could be acting outside his authority. This is what is before the Supreme Court – a declaration that the order to remove a person as prohibited immigrant is null and void and if it is declared void, then the Court is asked to quash the order – that is an application for a writ of certiorari. This application is part of Nauruan law under order 38 of the Civil Procedure Rules 1972. Order 38 sets out in detail the procedure and process of such judicial review. The Immigration Act also provides for an appeal on a removal order. However, the amended act did not repeal section 12 of the Principal act and secondly it amended section 15 of the Act that had been repealed by a previous amendment Act. That is section 15 did not exist to be amended! So the new Act is chaotic and ineffective in parts. The effect of new amendment act gave the Minister power to make removal order but the aggrieved person has to appeal to the same Minister since section 12 in the Principal act was not repealed. You cannot adjudicate on your own order! The new section 15 in the newly amended act stated that the appeal now lies with the President. This is void since section 15 had been previously repealed and do not exist. These errors are also being raised in the judicial review application and make the case of the applicant an arguable one. This was the basis of the Registrar granting leave for a judicial review. It was not a case of a “white” man favoring another “white” man. Mohammed Hariff an Indo-Fijian was granted an injunction as well because of these failures. Peter Law did not issue the injunctions for the sake of blocking the deportation of the persons but because the cases before him had could be argued with a good chance of success due to the gaps in the law and failure of the Minister to conform with the Act! He was applying the rule of law on the cases before him. Peter Law’s removal order was made in exactly the same manner as Rod Henshaw and Mohammed Hariff. Therefore the granting of an injunction by the Chief Justice was legitimate so that Peter Law can apply for leave to file an application for judicial review. It is a process under Order 38 of the Civil Procedure Rules 1972 of Nauru. It is our law! So it was thought by Government that by removing Peter Law and bringing in an inexperience person to act as a Magistrate and Registrar will solve the problem. Unfortunately, the Government forgot that the Chief Justice under powers vested in him by the Nauru Courts Act can exercise his prerogative to deal with application for interim injunction or any other interlocutory matter whether on Nauru or in Melbourne, Australia. The Chief Justice has varied the terms of the injunctions for Rod Henshaw ordering that both injunctions will remain in force until it is considered by the Court either by him or a judge appointed by him. Finally, the Chief Justice has defended the performance and integrity of Peter Law as Magistrate and as Registrar of the Supreme Court. For those of us who had worked closely with Peter Law day-in day-out we affirm the sentiments expressed by the Chief Justice. We have lost another good man. Nauru is littered with corpses of good men in our short history and it must be a curse. A few more good men will be leaving as a fallout of this appalling interference in the separation of powers between the Executive, the Legislature and Judiciary. We strongly condemn the actions of the Government and its officers that have brought disrepute on the integrity of our legal system and how we conduct ourselves under our laws. Respectfully, Vinci N. Clodumar President Nauru Law Society
Posted on: Fri, 24 Jan 2014 06:55:17 +0000
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