Judicial Corruption in the Pacific

By SUSAN MERRELL

The independence of the judiciary is a paradigm that underpins the rule of law in democratic states.

Another well-accepted paradigm comes from one of the most famous historical judicial rulings: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

It was why in 2004 the Revolutionary United Front (RUF) of Sierra Leone was successful in removing Judge Geoffrey Robertson from hearing their case.

The ruling judge was not only asked to rule on whether the fact that Robertson had written extensively on the subject made him biased, but “…whether an independent bystander…or the reasonable man…[would] have a legitimate reason to fear…the lack of impartiality.”

In some matters affecting the Pacific, occurrences where the “reasonable man” would have a reason to fear impartiality tend to go unnoticed.

For instance, in the Supreme Court of Queensland last year where the former Attorney-General of the Solomon Islands, Julian Moti, was applying for a permanent stay of prosecution, the presiding judge, Justice Debra Mullins, disclosed to the court that she knew Sir Albert Palmer and had met him at a number of functions. She said: “I don’t see that as a problem.”

I’m sorry Justice Mullins, but I do—and I’m a ‘reasonable person’.

Palmer is the Chief Justice of the Solomon Islands and Chairman of the Solomon Islands Judicial and Legal Services Commission.

In both of those roles, the Chief Justice had many dealings with the person Justice Mullins was about to sit in judgement on.

Justice Palmer had himself sat in judgment and ruled against Moti on at least one occasion. Patently, the opportunity to influence, to cross-pollinate views, was ever present during the meetings spoken of by Justice Mullins. Her frank disclosure was just inadequate.

After the initial disclosure Justice Mullins went on to make another one, this time about her acquaintance with the current Governor-General of the Solomon Islands, Frank Kabui.

She explained that Kabui actually came to her house as part of “the home entertainment”.

So what is this “home entertainment” of which she speaks? Apparently, it’s a system where members of the local judiciary entertain visiting judges in their homes. This presents quite a convenient opportunity for intelligence gathering and a reasonable person would fear this could be the case.

Moreover, according to Ken Averre, Moti’s solicitor at the time, Justice Mullins also mentioned that her son was a cadet with the Department of Foreign Affairs and Trade (DFAT).

With DFAT often appearing as witnesses for the prosecution, this was also potentially problematical. If she had to rule against them, would she have? She didn’t. But if she had, it would have been a bit like biting the hand that feeds you.

When Australian interests are legitimately and legally challenged in Pacific jurisdictions, ‘biting the hand that feeds you’ would be a common phenomenon in the judiciaries considering the massive amounts of Australian aid funding they receive. Some question whether the judiciaries are prepared to do this, thus compromising their independence.

Peter Pena, a lawyer from Papua New Guinea (PNG), is sceptical. He asked this question in a recently published article.

“Has it ever occurred to anyone,” he said, “that this generous aid we receive (in PNG and the rest of the Pacific) could be a fishbone stuck in the judicial oesophagus of our courts, an unnecessary, artificial and improper fettering or corruption of judicial discretion?”

Pena had taken umbrage with the PNG Ombudsman’s report (amongst other things). He pointed out that the Australian government funnels millions of Kina into both Transparency International and Ombudsman Commission every year.

“Australia has created so much financial rapport and institutional loyalty within these organisations,” said Pena, “that in desperate times like this, it can be called in.” He is of the belief that this is precisely what happened.

For the Chief Ombudsman of PNG is currently Chronox Manek. Before becoming Chief Ombudsman, Manek was the recipient of a generous AusAid scholarship that funded his further education in Australia. Prior to this, he was the DPP that prosecuted the Moti case in PNG.

Subsequently, in the Ombudsman’s Report, he found that Moti should not even have been in that court as his arrest was unlawful. However, at the time, it did not stop him from yelling “belt the shit out of them,”—them being Moti’s lawyers on hearing that Moti was not in court that morning.

His enthusiasm for this task was equally matched by the Australian authority’s enthusiasm to have Moti extradited to Australia (to face criminal charges already heard in Vanuatu) before he could reach the Solomon Islands and take up his new role as Attorney-General in the troublesome (for Australia) Sogavare government.

The PNG Prime Minister, Sir Michael Somare commented incredulously in the press at the time of Moti’s arrest: “Police goes and does this, who are they listening to, who is commanding them?”

PNG is a sovereign nation. A Prime Minister shouldn’t have to ask that question.

A reasonable person might wonder whether the scholarship proffered to Manek was a reward for the enthusiastic co-operation with the Australian agenda. And why wouldn’t they?

Certainly, that was the question asked of the similar situation where Moti provided a scholarship for the magistrate that ruled for him in the original Vanuatu case—six months after the decision. No charges were ever laid.

The situations are similar but the attending rhetoric quite different, even though it was a common practice in Moti’s law firm to provide incentives such as further education to select members of his staff. Yet in only one of these situations has corruption been suggested. But isn’t the pot calling the kettle black?

And Manek is not the only recipient of such Australian-funded educational opportunities. Ronald Bei Talasasa, the current Director of Public Prosecutions (DPP) in the Solomon Islands, should just be back from the Victoria Bar Institute in Melbourne after attending a three-month course.

Largesse

This sort of largesse can’t help but create a sense of obligation that goes nowhere to guaranteeing the independence of the courts and judicial system.

‘Australia’s Framework on Law and Justice Engagement with the Pacific’, according to Senator Robert McClelland, in a speech delivered in the middle of this year, provided funding of over A$90 million for the whole of the Pacific—without even factoring in the RAMSI allocation.

Senator McClelland talked of using the funding for establishing and maintaining the ‘rule of law’ in the Pacific to underpin stable government.

“Put simply,” he says, “the rule of law provides a safeguard against arbitrary governance. And in this regard, it is also a safeguard against corruption and abuse of position.”

Of course, he’s right and it’s a noble goal. The problem is in the implementation. What is intended and what actually happens gets lost in translation.

For in some instances, Australian authorities operating in the Pacific forget that the rule of law applies universally and can’t legitimately be applied arbitrarily and/or brushed aside for expediency—and certainly, not used to effect or promote a political agenda.

But that’s exactly what the then DPP John Cauchi (an Australian) was accused of after the riots in 2006 in Honiara.

An elected MP, Charles Dausabea, was one of two MPs who had been arrested and incarcerated on suspicion of having had a hand in causing the riots.

Outside the court, just before Dausabea’s hearing, a Solomon Islander, who had no proprietary interest in the case, overheard a conversation between two people who he later came to recognise as Magistrate Kieran Boothman and the then DPP, Cauchi.

According to an affidavit sworn by him, he heard Cauchi express his concerns that Dausabea would interfere in government if he got bailed. (This was a well-founded concern—he would be made Minister for Police while still incarcerated). According to the same affidavit, the magistrate went on to assure Cauchi that it wouldn’t happen.

Incidentally, at the time, Billy Titiulu, who is now the Attorney-General of the Solomon Island—then in private practice, took down the affidavit. The matter was never investigated.

The presiding Attorney-General of the Solomon Islands at that time, Nathan Moshinsky, an Australian, convinced Governor General, Nathaniel Waena not to proceed with an investigation.

According to the correspondence that flowed backwards and forward, the easiest way was to allow his tenure to run out which was imminent and not renew it.

The prevailing mindset was that if the investigation found against Cauchi, then he would be removed from office—but by then it would be too late because he’d already be gone. Why bother?

The answer to the question, of course, is that justice was neither done nor seen to be done. If this is what happened, it’s not only highly improper on the part of the magistrate and the DPP, but also an illegal judicial decision was used to effect as political agenda—if that’s what happened. Now, we’ll never know.

Cauchi readily admitted to abusing the judicial system for political purposes on at least one occasion during his time as DPP in the islands.

In a press interview after his repatriation when the interviewer asked why, as Solomon Islands’ DPP, had Cauchi delayed prosecuting Sir Allen Kemakeza (the Prime Minister who was responsible for asking Australia for military help, culminating in the deployment of RAMSI) on criminal charges.

Cauchi’s answered: “…this is a situation where people have to really think about the greater good of the country.” Except arbitrary justice is not good for the country.

Ask Senator McClelland; it was precisely these sorts of malpractices that he was targeting in his expressed agenda for aiding good governance in the Pacific through the rule of law. But he didn’t have Australians in his purview. ‘Physician heal thyself’ springs immediately to mind.

And this behaviour is insidious because organisational culture flows downward, becomes entrenched and affects those further down the line—in this case law enforcement, where recently, a murder case was thrown out of the Solomon Islands’ courts because Australian Federal Police investigating officers had not bothered to read the suspect his rights.

A layperson with a television who watches police dramas would know not to do that. It’s lackadaisical and becoming endemic.

Stephen Lawrence, a Canberra-based lawyer, is particularly damning of how arbitrarily the rule of law has been used amongst the visiting contingent in the Solomon Islands. He confided to the press that while being a Solomon Islands’ public defender, he felt that RAMSI’s criminal justice response became “an attempt to achieve a form of political cleansing,” and had little to do with the rule of law.

Which brings us full circle—the judiciary must be independent to establish a rule of law. Clearly, in the Pacific, there are powerful forces interfering with that paradigm.

There must be solutions because as the PNG lawyer Pena rightly points out “… judicial corruption is subtle and a very real threat to democracy in the region.”

His suggestion is that aid to this sector should cease immediately and he recommends “proper and adequate internal funding of the judiciaries as constitutionally mandated.”

Certainly, with the Pacific judiciaries so dependent on funding from Australia, the mythical ‘reasonable person’ is bound to suspect they would be heavily pregnant with Australian influence.

As for the Australian courts, there’s a need to look more closely at the problem of judicial bias and conflicts of interest questions. If a court in a small African nation can afford to be that rigorous, so must we. Then, justice may not only be done but also seen to be done.