18:12, May 02 293 0 theguardian.com

2019-05-02 18:12:04
Nauru 19 left penniless and exhausted by 'neverending' ordeal, lawyer says

Nauru’s government is continuing its legal pursuit of the so-called Nauru 19 protesters, despite a judge ordering the prosecution to end last year because the accused had no prospect of a fair trial.

The ordeal has left the group, who include former ministers and a former president, “essentially penniless” and emotionally exhausted, their lawyer said.

The case stems from a 2015 rally outside the Nauruan parliament, protesting against the expulsion from parliament of three MPs who had criticised the government in media interviews. The rally escalated and rocks were thrown through parliament’s windows. Nineteen people were charged with various offences including rioting.

Some pleaded guilty but most defended themselves. In September the independently appointed justice Geoffrey Muecke granted a permanent stay of prosecution against the group and ordered that the Republic of Nauru pay more than $300,000 in court costs.

Muecke said the actions of the Nauru government and its justice minister, David Adeang, were “a shameful affront to the rule of law”.

He ruled that the government had wanted the Nauru 19 imprisoned for a long time and was “willing to expend whatever resources, including financial resources, as are required to achieve that aim”.

But the government has appealed against Muecke’s ruling, submitting more than 20 reasons it believed the judge had erred in law. For three days last week Nauru’s new court of appeal sat to hear the arguments again, before reserving its judgment to some time in the future.

Christian Hearn, an Australian lawyer representing the Nauru 19 – which actually now numbers 16 individuals – said none of the grounds of appeal the Nauru government put had forward actually identified any appealable error.

“A lot of them seek to take issue with the actual findings, which is not the role of the appellate court,” he said.

The court of appeal was established after Muecke’s judgment, creating an avenue of appeal that didn’t previously exist.

“With these proceedings having been initiated prior to the establishment of the court of appeal, we argued that the position remains as it was prior to the court being established, that is the republic had no avenue to appeal the permanent stay, and the court of appeal has no jurisdiction to hear such an appeal,” Hearn said.

The parties are now awaiting the judgment but the “neverending case” has taken a toll on his clients, Hearn said.

“It was over,” he said. “There was a permanent stay of the proceedings, it could have all just stopped.

“They’ve had this hanging over their heads for four years and have been suffering the indignity of having it play out in public. The indignity of not being able to work, of not being able to leave the island, of having passports taken from them, not being able to visit family overseas.”

Muecke’s judgment including a finding that a government-operated blacklist ensured the Nauru 19 were unable to find work on the island, rent houses or, in some cases, leave the country.

The former Nauruan president Sprent Dabwido has accused the government of holding his passport and preventing him from seeking cancer treatment overseas. He has since sought asylum in Australia, where he is living out his final days.

“That’s an incredible tragedy for him and for all of his family and all the other members of the Nauru 19,” Hearn said. “He’s been really important for the morale of the whole thing.”

The appeal court which heard the case was established late last year, after the government quietly cut ties with Australia’s high court, which had operated as the highest court of appeal for Nauru since 1976.

Nauru gave the Australian government the required 90-day notice it was terminating the arrangement but did not inform others, including those with pending cases including the Nauru 19. Mathew Batsiua, a former foreign minister, said at the time he believed this move had been motivated by the high court’s decision to uphold an appeal against increased jail sentences for Nauru 19 members.

The case comes amid growing concern about new laws cracking down on opposition and limiting freedoms and civil rights. A Lowy report last year warned of the government’s “lurch towards authoritarianism”.

In a separate case last week an opposition member, Jaden Dogireiy, was jailed on an assault charge. He had previously been acquitted but prosecutors appealed and the supreme court judge Mohammad Khan convicted him and sentenced him to 13 months. Sentences of more than 12 months automatically disqualify MPs from parliament.