Aug 20, 2018 Last Updated 11:38 PM, Aug 13, 2018

Nauru’s legal wrangle

A huge legal battle looms in Nauru over the trial of 19 people some of whom former opposition parliamentarians with the Baron Waqa Government opting to appeal its Supreme Court ruling that the republic should foot the legal bill of the defendants.

In his landmark judgement on 21 June this year, Supreme Court Judge Geoff Muecke of Australia ordered the Waqa Government to pay AU$224,021 (USD165,880) towards the expenses of the four Australian-based lawyers of the 19 defendants. This money was to be paid to the Supreme Court of Nauru by 5pm on Friday, 29 June.

Nothing was paid by deadline however with the government of Nauru exercising its right to appeal the Supreme Court’s decision. This means that the appeal would have to be heard by the Court of Appeal of Nauru, a court that currently does not exist.

In a surprise move earlier in the year, and following a secret pact with the government of Australia, the Nauru Government had announced that it would no longer uses the Supreme Court of Australia as its Appeals Court. It would establish its own, Nauru added.

A closer reading of Judge Muecke’s ruling reveals that the jurist had anticipated the non-payment of the legal fees. Order number 3 in his ruling reads:

“I order that the Republic of Nauru pay into the Supreme Court of Nauru the sum of $224,021.90, or such other sum as may be agreed between the DPP and the defendants’ Australian legal team, by 5pm Friday 29 June 2018, for and on behalf of the legal fees and disbursements of the defendants’ Australian legal team for the trial in this matter, and for some fees and disbursements already incurred.

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DOCTOR Manu Tupou-Roosen, Director General-designate of the Pacific Forum Fisheries Agency plans to bring to the role a strong commitment to empower the Pacific people through greater cooperation.

And this she believes is only possible through effective communication and collaboration between the FFA Secretariat based in Honiara, Solomon Islands with members and stakeholders of the regional body mandated with assisting member nations manage their offshore fisheries better.

“Our mission is clear - to maximise the economic and social benefits of our Pacific people through the sustainable use of our offshore fisheries resources,” Dr Tupou-Roosen wrote in an interview conducted via electronic mail.

“Our platform to deliver on that mission is also clear - cooperation. This is the cornerstone of our success as a region. It is our Pacific Way and it is the only way that we can ensure a safe, stable and prosperous region for our people. My priorities will be empowerment of our people, effective communication and effective collaboration between the FFA Secretariat, members and all stakeholders. These tools are critical to successful cooperation in order for our Pacific people to prosper.

“Using our skills and resources to continue strengthening our tools to combat IUU [Illegal, Unreported and Unregulated] fishing as well as to enhance social benefits will also be top of mind for me in this role.

“I will be actively reaching out to all members and all stakeholders. I am committed to listening. I am committed to working closely with the Deputy DirectorGeneral Matt Hooper, our staff and our members, and all of our partners such as the PNA Office, the Pacific Islands Forum Secretariat and SPC-FAME Division, to embrace a wide range of views, to ensure that the FFA is as effective as possible in delivering on its mission.”

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FLNKS Congress calls for “full sovereignty”

AS New Caledonia’s FLNKS independence movement met in congress last month near the northern town of Poum, the theme highlighted the importance of the coming year: “Yet Tim Men Ta Yabwat” (At the dawn of a new day). After decades of campaigning, a decision on New Caledonia’s political status is looming.

The exact date is still to be announced, but New Caledonia’s referendum on self-determination must be held before the end of the year, after a 20-year transition established by the 1998 Noumea Accord. Opponents of independence believe that they will win the vote and retain their current status within the French Republic. After generations of settlement and migration, the indigenous Kanak people are a minority in their own country, so mobilising independence supporters in the lead up to the referendum is all the more important. The 36th Congress of the Front de Libération Nationale Kanak et Socialiste (FLNKS) met at Arama on 3-4 February.

The meeting provided a crucial opportunity for delegates and activists to build common understanding on issues that have long been debated within the broad independence coalition. For many years, there have been internal tensions over leadership, how to negotiate with conservative pro-French parties and the best path for a transition to a new political status. But with only months remaining until the referendum, there is a need to promote unity amongst the four political parties that comprise the FLNKS: Union Calédonienne (UC); Parti de Libération Kanak (Palika); Rassemblement Démocratique Océanien (RDO); and Union Progressiste Mélanésien (UPM). The first President of the FLNKS, JeanMarie Tjibaou, was assassinated in 1989 and the position was later filled by Palika’s Paul Neaoutyine and UC’s Roch Wamytan. But since 2001, the independence coalition has been unable to agree on a President.

To avoid potentially divisive debates over leadership, the Arama Congress decided to leave the position vacant and instead appointed UC President Daniel Goa as its official spokesperson within New Caledonia, the region and internationally. Debating the path forward As the largest and oldest member of the independence movement, UC has long called for the adoption of full, sovereign political independence.

The other FLNKS members have been more open to variations of political status. Palika President Paul Neaoutyine has declared his party is open to discussing “l’indépendance avec partenariat” (independence with partnership), which would establish New Caledonia as an independent nation but with an ongoing relationship with France. Despite these differences, the FLNKS congress “reaffirmed its objective to have the country accede to full sovereignty in the referendum scheduled for this year 2018.”

If New Caledonia’s Congress cannot agree on a date for the referendum by May this year, the French State must hold the referendum at least six months before next Congressional elections in May 2019. For this reason, everyone is gearing up for a referendum in late October or November, preparing for a public campaign in the months before the vote. One of the central concerns for independence supporters has been to meet the legal requirement that potential referendum voters must be registered on the general electoral roll.

The Congress called on independence activists appointed to the Special Administrative Committees which register voters “to maintain the greatest possible vigilance during the forthcoming work to update the special lists and especially those for the referendum.” The United Nations Special Committee on Decolonisation is expected to send a mission to New Caledonia this month, to monitor the work of these Special Administrative Committees, as they finalise the voting roll that will be released publically in August. The FLNKS Congress reaffirmed its call for automatic registration of all indigenous Kanaks of voting age, echoing a central concern of the Rassemblement des indépendantistes et nationalistes (RIN).

The RIN is a loose network outside the FLNKS that includes more radical proindependence groups like the Parti Travailliste (PT), Dynamique Unitaire Sud (DUS), the USTKE trade union confederation and individual activists. UC President Daniel Goa has floated the idea of re-incorporating all pro-independence forces - including political parties, trade unions and churches - within the FLNKS. However this idea was not accepted by Palika and UPM at the Arama congress. Instead, the congress resolution called on “independence supporters, progressives and nationalists to support the planned accession to full sovereignty and to re-join the structures created by the FLNKS to undertake a campaign at local level.”

This aims to reinforce the “Comités Nationalistes et Citoyens” (CNC), a network of local action groups in tribes and towns across the country. The CNC were created in 2016 as a structure for independence supporters to campaign together at the grassroots, regardless of political affiliation. Young people share their vision This spirit of cooperation was evident amongst young Kanaks at the Arama meeting. A key feature of the congress was the strong presence and coordination of young people, who have not been involved in longstanding political jousting amongst their elders, often dating back to the 1970s. Each of the FLNKS member parties has a separate youth wing, but younger delegates caucused together and issued a joint statement from the congress.

The youth declaration called for “a sovereign Kanaky-New-Caledonia, as a multicultural, secular, democratic and united republic.” The united youth network will organise a series of cultural and sporting events during 2018, so that “young New Caledonians, whoever they may be, can join the movement for national unity so our country can access full sovereignty.” New Caledonian leaders across the political spectrum will meet with French Prime Minister Edouard Philippe and other representatives in March for the next Committee of Signatories to the Noumea Accord.

This meeting, one of the last before the referendum, will address outstanding issues over the referendum process, as well as the transfer of the remaining “Article 27” powers from Paris to Noumea (including control of the university, TV and radio, as well as the ADRAF land reform agency currently managed by the French State). To continue the momentum towards the vote, the FLNKS will hold a national convention in April.

This meeting will see the formal launch of the independence movement’s campaign, in the lead up to a scheduled visit by French President Emmanuel Macron. Since last year, the FLNKS has been developing a proposal for “a sovereign Kanaky-New-Caledonia,” with ideas for economic, political and cultural reform that will be the centrepiece of the referendum campaign. Beyond its mobilisation on the ground, the FLNKS congress resolutions highlighted the importance of international solidarity, including the “historic and ongoing support of the Melanesian Spearhead Group,” support from the Non-Aligned Movement as well as churches, NGOs and trade unions (a notable omission from the list is the Pacific Islands Forum, given the rapprochement between France and key Forum member states like Australia). To mobilise international support during 2018, the FLNKS will soon name overseas representatives as official spokespeople in Europe and the Pacific islands.

The movement will also send a team to build support for independence and sovereignty in French Polynesia and Wallis and Futuna (key constituencies, given the large Tahitian and Wallisian populations living in New Caledonia). Soon after the congress, FLNKS delegates travelled to Port Moresby for the MSG summit. As a signal to the host government, the Arama congress “reaffirmed its unshakeable support for the United Liberation Movement of West Papua (ULMWP) in its combat for human rights and the right to self-determination in West Papua.” The FLNKS congress also resolved to support nationalist movements in Corsica, Catalonia and French Polynesia – signalling their support for allies in the debate over autonomy, decentralisation and independence that is raging around the globe, from Spain to Indonesia and Papua New Guinea, from old Caledonia to New Caledonia.

The new Aussie assertiveness

A diplomatic spat between Beijing and Canberra has highlighted the Turnbull government’s new assertiveness in the Pacific islands as it pushes back against the growing regional influence of “nontraditional” development partners. Earlier this year, Australia’s Minister for International Cooperation and Pacific Affairs Concetta Fierravanti-Wells made headlines when she criticised Chinese aid projects in the Pacific.

Senator Fierravanti-Wells accused China of “duchessing” Pacific leaders and officials through its aid programme. Criticising “roads to nowhere” built by China, she told The Australian newspaper that: “You’ve got the Pacific full of these useless buildings which nobody maintains, which are basically white elephants.” In response, Chinese diplomats lodged an official diplomatic complaint to Australia’s Department of Foreign Affairs and Trade (DFAT), calling the Minister’s claims “irresponsible” and “full of ignorance and prejudice.” Fierravanti-Wells’ critique of Chinese loans and aid grants to the Pacific comes as the Turnbull government has ramped up its criticism of growing Chinese political influence in the Asia-Pacific region, including alleged interference in Australian domestic politics.

In recent years under the “new Pacific diplomacy,” Pacific island nations have extended links beyond the ANZUS partners, advancing collective priorities on trade, climate change and the oceans. They’ve made some headway - over the last year, Fiji has served as President of the UN General Assembly, co-chaired the global oceans conference and been appointed to the presidency of the UNFCCC Conference of the Parties (COP23).

Now we’re seeing a renewed Australian assertiveness, as Canberra seeks to retain Australia’s role as the largest aid, trade and military power in the region. At the 2016 Pacific Islands Forum leaders’ meeting in Pohnpei, Prime Minister Malcolm Turnbull committed to a “step change” in Australia’s engagement with the Pacific. At the 2017 Forum in Apia, Turnbull announced a Pacific Labour Scheme for some smaller island states and efforts to reduce the cost of remittances from Australia to the Pacific.

In November, Foreign Minister Julie Bishop released a major Foreign Policy White Paper, which highlights growing Chinese influence in the Asia-Pacific region and calls for enhanced engagement with the Pacific islands. Shadow Defence Minister Richard Marles from the opposition Australian Labour Party (ALP) – a former Parliamentary Secretary for Pacific Island Affairs – has also called for increased engagement by Australia in the islands region.

Australian policy failures The growing influence of non-traditional players like China, India and Indonesia has in part come from a series of “own goals” by successive Australian governments. There have also been a number of policies from the Coalition and ALP that have arguably damaged Australia’s standing in the region. These include the ongoing commitment to coal exports at a time Pacific governments are seeking reduced use of fossil fuels; the expensive and unresolved warehousing of asylum seekers and refugees on Manus and Nauru; cutbacks to Radio Australia; the closure of AusAID as an independent statutory organisation; and the gutting of the overseas aid programme, slashed to the lowest ratio of national income ever recorded. Over the last two decades, trade policy has been a central pillar of regional engagement.

PACER was first signed in 2001, but years of trade negotiations have ended with the PACER-Plus agreement that the two largest island economies have refused to sign (once a flagship of Australian policy, the treaty isn’t even mentioned in the new White Paper chapter on the Pacific). In global summits, DFAT diplomats often oppose Pacific island policies on loss and damage, greenhouse emission targets or nuclear disarmament.

In response, many innovative policies are being formulated and promoted through institutions where Australia is not in the room, such as the Pacific Small Island Developing States group or sub-regional organisations such as the Melanesian Spearhead Group and Polynesian Leaders Group. Australian government budget cuts have contributed to the hollowing out of institutions that are vital for engagement with the region, from volunteer programmes to Radio Australia and the Bureau of Meteorology.

Australia is also lagging other OECD nations with its climate finance commitments. By 2020, Australian governments must ramp up public climate financing to meet Canberra’s fair share of global targets, requiring a massive increase beyond existing commitments. Since the 2009 Copenhagen summit, Australia’s public climate finance has been drawn completely from the aid budget. At a time when there is widespread debate in Australia about energy security and pricing, there is little if any discussion about where to find new and innovative sources of climate funding. Neither the Coalition nor ALP has said where extra money could come from, at a time that budget papers predict overseas aid will sink to 0.2 per cent of gross national income by 2020. Countries like France and New Zealand are addressing this challenge, through studies on financial transaction taxes, redirecting fossil fuel subsidies, or cracking down on fiscal avoidance in tax havens. Given smaller island states will always need public investment, emerging Asian economies are filling the gap, through institutions like China’s Asian Infrastructure Investment Bank (AIIB).

White paper highlights security

According to the 2017 Foreign Policy White Paper, Australia’s approach to the region will focus on “helping to integrate Pacific countries in the Australian and New Zealand economies and our security institutions.” The renewed Australian engagement is often framed as a policy of strategic denial to protect the homeland from an arc of instability. In August 2017, Turnbull and then Prime Minister Manasseh Sogavare signed a bilateral security treaty between Australia and the Solomon Islands.

This was followed in September by bilateral MOUs on security partnership with Tuvalu and Nauru. Australia has committed AU$2 billion to the Pacific Maritime Security Programme over the next 30 years, with support to provide 19 replacement patrol boats across the Pacific and an aerial surveillance capability to bolster Pacific island maritime security. The call for security integration was echoed by the ALP’s Richard Marles, in a major speech to the Lowy Institute last November.

The Shadow Defence Minister argued that the first “cornerstone” for renewed Pacific engagement “is a far more extensive and deeper defence relationship with those countries which have a defence force…..it would benefit us to see the capability of the Pacific Island Countries’ defence forces grow.” But whose security are we talking about? During conflicts in Bougainville, Solomon Islands and New Caledonia, churches and NGOs posed alternative perspectives on regional security that didn’t put defence of Australia at the heart of the debate.

They have advocated spending more resources on “human security” rather than “national security” – yet Australian governments prioritise the latter in funding and technical assistance (83 per cent of the $2.6 billion spent on RAMSI went on policing, law and justice programmes, while many Solomon Islanders were calling for greater resources to be allocated to development initiatives that bolster community security, in agriculture, employment and women’s empowerment).

Some Pacific citizens will be anxious about extensive new support for the Papua New Guinea Defence Force or the Republic of Fiji Military Forces, given human rights abuses during the 1990s war on Bougainville and coups in Fiji. As the Forum launches a regional dialogue on a new “Biketawa-Plus” security framework, there will be calls to prioritise support for actors beyond the defence forces.

The Australian Foreign Policy White Paper also dodges the complex and challenging debate around self-determination in Pacific territories administered by France, the United States and New Zealand, as well as in neighbouring countries like Indonesia and Papua Guinea.

 

There is just one paragraph on Bougainville and no mention of New Caledonia or West Papua. Despite this silence, debates around autonomy or independence will be a central feature of regional politics in coming years. Successive governments in Canberra have already chosen sides in these debates, wary of new nation states being created across Melanesia. But popular support for self-determination will inevitably complicate bilateral relationships with Port Moresby, Jakarta and Paris, as well as Australia’s role in the Pacific Islands Forum.

A central challenge for Australian governments is to resolve this contradiction between global and regional priorities. The White Paper wants to increase “our exports of high-quality coal and LNG” to Asia but also lead the Pacific debate on climate policy.

Australia can’t do both. The 2017 ‘joint statement of enhanced strategic partnership between Australia and France’ highlights the increasing global engagement between Canberra and Paris, and follows the decision to extend full Forum membership to New Caledonia and French Polynesia.

This amplifies the capacity of the French Republic to intervene in this regional security debate, because the French state – and not governments in Noumea or Papeete – controls key legal powers over defence, policing and the military in France’s Pacific dependencies. Despite Australia’s new Pacific assertiveness, it will be increasingly difficult to paper over contested visions for the future.

Within the Forum, fundamental policy differences over climate change, trade and decolonisation will continue to complicate regional relations. There will be new calls to transform the regional architecture, as these differences reinforce the growing sentiment that Australia and New Zealand should play a different role within the Forum.

 

By Anish Chand
 
In this election year, the Fijian Supreme Court is set to hand down a judgement that will clearly define the role of the Supervisor of the Elections when it comes to following directives of the Electoral Commission.
 
Tomorrow (27th February), Chief Justice of Fiji, Anthony Gates will sit as a single judge to preside over an appeal by the Supervisor of Elections on a high court judgement on 29th November 2016 that ruled the Fijian Supervisor of Elections must comply with all the decisions and directions given to him concerning the performance of his functions by the Fijian Electoral Commission.
 
The FEO had filed an appeal in the Supreme Court, Fiji's highest court.
 
The court case began in August 2014, just before the September general elections when the Electroral Commission went to the High Court after the Commission had sought clarification from the High Court on the interpretation of the law related to objections.
 
The High Court was asked to clarify the view of the Supervisor of Elections, Mohammed Saneem on whether he was right or wrong in not following a directive of the commission and proceeded to draw the National Candidates List of the 2014 General Elections.
 
The commission had received objections against Parveen Kumar and had ruled that the FijiFirst candidate be disqualified from the National Candidates List.
 
They had also ruled that the Fiji Labour Party candidate Steven Singh be reinstated in the final list of candidates but the FEO had gone ahead without the instructions of the commission.
 
High Court judge Justice Kamal Kumar was asked to give:
 
* a declaration that the Supervisor of Elections erred in law and in fact in concluding that the Electoral Commission was bound to deliver its decision on the objections and applications for review in terms of Sections 30 and 31 of the Electoral Decree 2014 by 4pm Friday August 2, 2014 and not any later time on that day; and
 
* a declaration that the Supervisor of Elections was bound to flow the directive of the Electoral Commission given by the Electoral Commission's letter dated August 22, 2014 in compliance with Section 76 (3) of the Constitution of the Republic of Fiji.
 
Justice Kumar delivered a judgement in the favour of the FEO and he refused to grant the declarations.
 
Not happy with the decision, the Electoral Commission appealed to the Fiji Court of Appeal where a full bench of the court made up of the President of the Court of Appeal, Justice William Calanchini, Justice Almeida Guneratne and Justice David Alfred heard the arguments and allowed the appeal by the commission.
 
The three justices' said in the interest of administrative efficacy and the smooth functioning of the electoral process the commission discharged its functions when it sent its letter dated August 22, 2014 to the Supervisor.
 
"Once the commission did that, the Supervisor was mandatorily required to carry out the decision contained in that communication in terms of Section 76 (3) read with Section 8 (a) of the Electoral Decree and it was not open to him to question the legality and/or constitutionality of it, particularly in view of the provisions of Section 30 (7) of the said decree which decrees that the commission's decision is final, not permitting any appeal or review against the same."
 
In their conclusion, the Fiji Court of Appeal declared that the time limits of three days in section 30 (5) and Section 31 (4) of the Electoral Decree end at midnight on the third day.
 
The judgement said under Section 76 (3) of the Constitution read with section 8 (a) of the Electoral Decree requires the Supervisor of Elections to comply with all the decisions and directions given to him concerning the performance of his functions by the Fijian Electoral Commission.
 
Now the final decision on this argument rests with Justice Anthony Gates and the ruling of the Supreme Court of Fiji.

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