Did ‘ending’ detention on Nauru also end the constitutional challenge to offshore processing?

Joyce Chia, Monash University and Asher Hirsch, Monash University

The Nauruan government announced earlier this week that it will remove the remaining restrictions on the liberty of the asylum seekers detained there, and process all pending claims for asylum. It initially said it would process the claims in a week, but has since backtracked from that commitment.

Many have claimed that the announcement is a strategic move to undermine a constitutional challenge to Australia’s offshore detention regime, heard by the High Court this week – although the Australian government has denied this. So does the policy change spell the end of the challenge?

While that question can only be answered after the High Court’s decision, the hearings give a hint. The short answer is that the Nauruan government’s announcements have already had a much greater effect in the High Court than on Nauru itself.

So what is this case about anyway?

The plaintiff in this case is a Bangladeshi woman who was detained on Nauru before being brought to Australia during her pregnancy. If the case fails, she, her ten-month-old baby and more than 200 people now in Australia will be sent back to Nauru or Manus Island.

The case, together with a similar one relating to Manus Island, began as a challenge to the Commonwealth’s power to spend money on offshore processing centres. This was on the basis of recent High Court cases that found that legislation was generally required to authorise the Commonwealth entering into contracts and spending money, subject to certain exceptions.

Not unusually, parliament intervened. In late June, the major parties combined to pass “emergency” authorising legislation, which applied retrospectively.

This meant the plaintiff was forced instead to argue that the emergency legislation was invalid because it did not fall within the Commonwealth’s powers to make laws set out under the Constitution. As the High Court’s questions made clear, this is a difficult argument to run. The authorising legislation appears clearly related to at least two of the broadest legislative powers of the Commonwealth – the power to regulate aliens and the power to engage in external affairs.

The plaintiff’s main argument now was that the Commonwealth, by in effect detaining asylum seekers on Nauru, went beyond its constitutional power to detain. The argument rested on two main steps.

  • First, previous cases had established certain constitutional limits on the executive’s power to detain asylum seekers in Australia. These limits included that such detention must be limited to permissible purposes and limited in time to what was reasonably practicable to effect that purpose, and that the courts must be capable of supervising the legality of that detention.

  • Second, these constitutional limits did not apply to detention on Nauru. The effect of this was that the offshore processing regime enabled Australia to do outside its borders what it could not do inside. This would in effect subvert the High Court’s role in supervising the constitutionality of executive power.

At the heart of this was an argument that the Commonwealth was to be treated as, in substance, detaining the asylum seekers. That argument rested on the evidence that the Commonwealth funded, authorised and controlled the offshore processing regime.

This is a difficult argument to run. Similar arguments failed last year before the High Court. As High Court justices pointed out this week, there is nothing in either the Migration Act or the Memorandum of Understanding that requires Nauru to detain asylum seekers.

How did Nauru’s announcement change the case?

Nauru’s announcements over the past week significantly undermined the plaintiff’s main argument. This argument rests on there being unconstitutional detention, and now there is no detention.

As a consequence, the Commonwealth argued that all of the questions (and associated remedies) in the case relating to the Commonwealth’s future conduct were no longer relevant.

The Commonwealth is also now arguing that it is not useful for the High Court to consider the legality of past detention. This is because deciding that question will not produce any real consequence for the plaintiff.

That might surprise lay observers, but Australian courts have long held that the courts should not decide cases where it can serve no useful result. While a claim for compensation could have been such a result, the case was never argued in this way – as the Commonwealth duly pointed out.

Circumventing the courts

From this week’s hearings, it certainly seems that these sudden changes to policy in Nauru have dramatically weakened this constitutional challenge – if not yet the companion challenge to the constitutionality of offshore processing on Manus Island.

Yet again, it seems, the government may have successfully outmanoeuvred legal challenges by changing the law and the facts on the ground.

For the asylum seekers on Nauru, other facts on the ground remain much the same. They are still unsafe, separated from their families and unable to leave Nauru for a real life.

The Conversation

Joyce Chia, Lecturer (Sessional), Monash University and Asher Hirsch, Tutor, Monash University

This article was originally published on The Conversation. Read the original article.

Judge Exonerates Jailed Evangelist in Bangladesh

Judge rules Christian did not ‘create chaos’ by distributing literature near Islamic event.

DHAKA, Bangladesh, March 31 (CDN) — A judge this week exonerated a Christian sentenced to one year in prison for selling and distributing Christian literature near a major Muslim gathering north of this capital city, his lawyer said.

After reviewing an appeal of the case of 25-year-old Biplob Marandi, the magistrate in Gazipur district court on Tuesday (March 29) cleared the tribal Christian of the charge against him and ordered him to be released, attorney Lensen Swapon Gomes told Compass. Marandi was selling Christian books and other literature when he was arrested near the massive Bishwa Ijtema (World Muslim Congregation) on the banks of the Turag River near Tongi town on Jan. 21.

On Feb. 28 he was sentenced for “creating chaos at a religious gathering” by selling and distributing the Christian literature.

“Some fundamentalist Muslims became very angry with him for selling the Christian books near a Muslim gathering,” Gomes said, “so they harassed him by handing over to the mobile court. His release proves that he was innocent and that he did not create any trouble at the Muslim gathering.”

The judge reviewing the appeal ruled that Marandi proved in court that he sells books, primarily Christian literature, for his livelihood.

“I am delirious with joy, and it is impossible to say how happy I am,” said his brother, the Rev. Sailence Marandi, a pastor at Church of Nazarene International in northern Bangladesh’s Thakurgaon district. “I also thank all those who have prayed for my brother to be released.”

After processing the paperwork for Marandi’s release from Gazipur district jail, authorities were expected to free him by the end of this week, according to his lawyer.

“My brother is an innocent man, and his unconditional release proved the victory of truth,” Pastor Marandi said. “I am even more delighted because my brother’s release proves that he was very innocent and polite.”

The pastor had said his brother did not get the opportunity to defend himself at his original trial.

Marandi’s attorney on appeal argued that his religious activities were protected by the religious freedom provisions of the country’s constitution. The Bangladeshi constitution provides the right for anyone to propagate their religion subject to law, but authorities and communities often objected to efforts to convert people from Islam, according to the U.S. Department of State’s 2010 International Religious Freedom report.

Every year several million male Muslims – women are not allowed – attend the Bishwa Ijtema event to pray and listen to Islamic scholars from around the world. Some 9,000 foreigners from 108 countries reportedly attended the event, though most of the worshippers are rural Bangladeshis. About 15,000 security personnel were deployed to maintain order.

Bangladeshi Muslims equate the annual event with the Hajj, the Islamic pilgrimage to Mecca in Saudi Arabia. This year the Bangladesh event was held in two phases, Jan. 21-23 and Jan. 28-30.

At the same event in 2009, Muslim pilgrims beat and threatened to kill another Bible school student as he distributed Christian literature. A patrolling Rapid Action Battalion elite force rescued Rajen Murmo, then 20, a student at Believers’ Church Bible College, on Feb. 1, 2009.

Bangladesh is the world’s third-largest Muslim-majority nation, with Muslims making up 89 percent of its population of 164.4 million, according to Operation World. Christians are less than 1 percent of the total, and Hindus 9 percent.

Report from Compass Direct News

Muslim Protestors Surround Worshipers in Bekasi, Indonesia

Tensions mount as congregation asserts right to worship.

DUBLIN, August 4 (CDN) — Around 300 Muslim protestors and 300 police officers surrounded members of the Batak Christian Protestant Church (Huria Kristen Batak Protestan or HKBP) on Sunday (Aug. 1) as they worshiped in an open field in Ciketing, Bekasi, local sources said.

“There were many police on guard, but the attackers were able to get very close to the congregation,” Theophilus Bela, president of the Jakarta Christian Communication Forum, said in a statement to international government and advocacy groups. “We are afraid that they will attack the church again next Sunday.”

He added that a protestor hit the Rev. Luspida Simanjuntak on the cheek.

Police held back the shouting protestors while the church worshiped, but at one point they allowed Murhali Barda, leader of the Front Pembela Islam (FPI or Islamic Defenders Front) in Bekasi, through the cordon for an angry confrontation with church leaders, Voice of America (VOA) reported.

Bekasi police commander Imam Sugianto told VOA that his forces were there to protect “both sides.”

The New York Times quoted Sugianto as saying that, “If the local people don’t give their permission, they can’t worship here,” but Pastor Simanjuntak said the Bekasi administration had approved the church’s decision to meet in the field, according to The Jakarta Globe.

“We demand the Bekasi administration to let the public know that they gave us the green light to conduct our prayers here,” Pastor Simanjuntak reportedly said.

The 1,500-strong congregation, established some 15 years ago, initially met in each other’s homes before purchasing a residential property in the Pondok Timur housing complex in Bekasi for use as a worship building. The group then met in the building while they waited for local officials to respond to a building permit application filed in 2006.

When Muslim neighbors in December objected to the meetings in the housing complex on the grounds that the church had no permit, officials banned church members from meeting there. As the local government had delayed the processing of its application for a building permit, the church ignored the ban, leading officials to seal the building on June 20.

Bekasi Mayor Mochtar Mohammad on July 9 said he would allow the congregation to meet in public areas or at the city hall, according to the Globe. Pastor Simanjuntak chose to move to the proposed building site, and Sunday meetings at the field in Ciketing were soon greeted by crowds of protestors.

The FPI’s Barda said the church’s insistence on worshipping at the site was a provocation, according to VOA. He also accused Christians in Bekasi of attempting to convert Muslims away from their religion, citing a recent Internet report claiming that the Mahanaim Foundation, a local Christian charity, had carried out a mass baptism of new converts.

Foundation spokeswoman Marya Irawan, however, told The Jakarta Post that the crowds were not baptized but only invited to Mahanaim leader Henry Sutanto’s home as part of an effort to reach out to the poor.

Pastor Simanjuntak’s church has now filed a case against the Bekasi administration.

“I fully support any efforts to take this to the courts,” a local Christian leader who preferred to remain unnamed told Compass. “We need to respond through legal channels and let the government know that these attacks are a gross human rights violation.”

Hard-line Islamic groups held a congress in Bekasi on June 20, and on June 27 announced their united intent to combat the “Christianization” of the region. (See http://www.compassdirect.org, “Indonesian Muslims Call for Halt to ‘Christianization,’” July 2.)

Bonar Tigor Naipospos, spokesman for Indonesia’s Institute for Peace and Democracy (Setara), told VOA that unsubstantiated rumors about Christians using deceptive practices to convert Muslims have fueled the anger in Bekasi. He reportedly said that Muslims believe that Christians badger people to convert and entice them with money, food or other incentives.

Pastor Simanjuntak has said that she and her church will continue meeting in the field, as they have nowhere else to go.

Report from Compass Direct News