Lost Sovereignty; a disgraced judge and a kidnapped Attorney-General

Carl Schmitt’s Political Theology: Four Chapters on the Concept of Sovereignty is both famous and obscure. A twentieth-century political theory, containing two canonical sentences: “Sovereign is he who decides on the exception” and “All significant concepts of the modern theory of the state are secularized theological concepts.” These statements are regurgitated by contemporary political and legal theorists time and again. Standing alone, Schmitt’s statements are both puzzling and shocking.

Schmitt’s claim of a theological origin for political concepts stands against the common faith view that Western political theory as advocated by figures such as Locke, Hume, and Smith, not to forget Machiavelli and Hobbes, laid the groundwork for the modern theory of the state. The social contract, not the divine covenant, is at the centre of modern political theory. The concept of a single sovereign, deciding on rules and exceptions, is similarly inconsistent with current thinking about the rule of law, separation of powers, and judicial review. Today, if somewhat naively, we are prone to ask “what exception?” rather than who decides the exception; how, after all, can we reconcile Schmitt’s definition of sovereignty with the accepted maxim of Western jurisprudence, “extraordinary conditions neither create nor enlarge constitutional power”? In a system of popular sovereignty, we do not know a “he” who can claim to be the sovereign; in our system of constitutional law, we do not know a state of exception.

In reality there are exceptions, there always have been. In Australia the exceptions are usually decided by the police or the Director of Public Prosecutions (“DPP”) and are generally, if not exclusively, based on race. I have written at length on Blak and Black and elsewhere about organisations such as the Australian Federal Police (“AFP”) and the Australian Capital Territory Department of Public Prosecutions making decisions about whether to investigate or prosecute a crime based solely on race. In these situations, the decision almost always goes against the person of colour. This is unabashed racism. This racism becomes more pronounced if the person of colour is an Indigenous Australian or Pacific Islander. This unabashed racism is currently being exported to Australia’s Pacific neighbours via the Australian directed Regional Assistance Mission to Solomon Islands (“RAMSI”) and the AFP.

“We went into the Solomon Islands in order to restore the rule of law. What happened on 27 December [2007] did not involve the Australian government participating in a process of restoring the rule of law.” (Patrick O’Connor, Australian High Court concludes hearing into Julian Moti appeal)

Indeed, Australia did claim to go to the “… Solomon Islands in order to restore the rule of law …”, but far from restoring the ‘rule of law’ Australia stripped the Solomon Islands of its sovereignty and imposed in its place a form of neo-colonial rule far more oppressive than anything the European powers of the nineteen century could have dreamed up. What happened on 27 December 2007 is that the Australian Government kidnapped and unlawfully brought to Australia the former Attorney General Mr Julian Moti of the Solomon Islands to stand trial on what the former Prime Minister of The Solomon Islands Manasseh Sogavare described as “a sham and malicious conspiracy to indict an innocent man.”

In fact, in a media release dated 7 August, 2007 then Prime Minister Sogavare stated that and I quote this document in full:

Prime Minister Sogavare, with the full support of Caucus, has decided today to table in Parliament a questionnaire containing 666 questions addressed to the Australian Federal Director of Prosecutions, Damian Bugg QC, for his independent examination of the Moti case.

The questionnaire deals with the unsuccessful and unmeritorious Vanuatu prosecution of Moti, the shameful and politically motivated Australian investigation of Moti, and the violations of human rights, international law, and the national laws of the Solomon Islands, Papua New Guinea and Vanuatu. 

Sogavare says: “Our forensic and legal advisers have told the Solomon Islands Government that the Australian Federal Police investigation of Attorney General Moti QC is a sham and malicious conspiracy to indict an innocent man. Moti is a target of a vicious campaign to topple a democratically elected Government concerned about the protection of sovereignty.”

 “My Government will not enter into any further debate on the Moti case until DPP Bugg QC complies with our legitimate request under Solomon Islands and international law”, says Sogavare.

“We know that DPP Bugg QC has not personally looked at the Moti file, yet his name is being used to authenticate the Australian prosecution of Moti.”

(My emphasis)

The entire Solomon Islands ‘666 questionnaire’ together with the Australian Governments responses can be read on Blak and Black by following this link.

“Our forensic and legal advisers have told the Solomon Islands Government that the Australian Federal Police investigation of Attorney General Moti QC is a sham and malicious conspiracy to indict an innocent man. Moti is a target of a vicious campaign to topple a democratically elected Government concerned about the protection of sovereignty.” Strong words from a democratically elected Prime Minister, but nonetheless true. Added to Prime Minister Sogavare’s concerns can be those of Justice Heydon in Moti v The Queen [2011] HCA 50:

There are other areas in which public confidence in the administration of justice is said to be relevant. One is… the abuse of process which arises when legal processes are used for purposes alien to their proper purposes.

If Carl Schmitt is correct and the “Sovereign is he who decides on the exception”, then based on what happened on 27 December 2007 RAMSI is sovereign in the Solomon Islands. Make no mistake, it was RAMSI in the form of the AFP who targeted Moti and engaged in “a vicious campaign to topple a democratically elected Government”. It was also RAMSI in the form of the AFP who engaged in conduct that had the potential to diminish public confidence “in the administration of justice” by using legal processes for “purposes alien to their proper purposes.” The final attack on the sovereignty of the Solomon Islands by Australia came in the form of the immunity provisions contained in the RAMSI Treaty. The effect of these immunity provisions is that the AFP officers responsible for undermining the sovereignty of the Solomon Islands are immune from prosecution both in the Solomon Islands and in Australia. The immunity clause in the RAMSI Treaty is an ‘exception’, an ‘exception’ which makes RAMSI sovereign in the Solomon Islands.

An act of hubris, a loss of sovereignty

In August 2006 a car owned by former Federal Court judge and current barrister, Marcus Einfeld, was photographed speeding in Mosman. Einfeld said that his silver Lexus was being driven by Teresa Brennan, a visitor from the United States. But when it was found that Brennan had died three years earlier, Einfeld was soon in trouble over other traffic offences and faced serious charges including perjury.

This extraordinary act of hubris by former Australian Federal Court Judge Marcus Einfeld not only resulted in him being sentenced to a term of imprisonment of two years for lying under oath and perverting the court of justice in relation to a $77 speeding fine, but had consequences for the sovereignty of one of Australia’s near Pacific neighbours.

A scandal in Australia, and an engrossing matter within legal circles, had its impact on the Solomon Islands where Einfeld had been appointed to chair an inquiry into the April 2006 riots in Honiara. When Einfeld withdrew, Solomon Islands Prime Minister Manasseh Sogavare moved to replace the Attorney-General Primo Afeau with Julian Moti, a Fiji-Indian by background and an Australian lawyer by training and citizenship. Sogavare was seen by his opponents in the Solomon Islands and some Australian observers as attempting to use Moti to oversee the terms and conduct of his riot inquiry to shift blame to RAMSI and away from the two members of parliament (Charles Dausabea and Nelson Ne’e) who were jailed for their involvement in the riots and have subsequently sued the Solomon Islands Government over their jailing.

After Sogavare announced the appointment of Moti as Attorney-General, the AFP issued a warrant for Moti’s arrest for an alleged child sex offence in Vanuatu in 1997. Sogavare saw a deliberate plan by Australia to frustrate his attempts to set up a separate inquiry and he appealed to arguments about Solomon Islands’ sovereignty and prejudice against a big and distant Australian bully.

Acting on an Interpol alert triggered by Australia, the Port Moresby police arrested Moti on 29 September 2006 in the transit lounge of Jackson’s airport when he was flying from Singapore to Honiara. After his arrest Moti was released on bail and decamped to the Solomon Islands High Commission in Port Moresby. As reported by the National Broadcasting Corporation and the two national dailies, the Prime Minister Sir Michael Somare advocated the release and transfer of Moti and punishing the police who arrested him. Somare’s reported words were explicit:”Let Moti go” and “my view was to make sure that he gets past our system and goes through [to Honiara]”. On Monday 9 October the only operational PNGDF CASA aircraft took off from Jackson’s airport and dropped Moti and other Solomon Island officials at a disused airstrip on Munda Island.

Had Einfeld not been forced to withdraw as chair of the inquiry into the April 2006 riots in Honiara, Sogavare might not have found himself in a position to appoint Moti as Attorney-General of the Solomon Islands. Likewise, if Australia had not been so paranoid about one man who was determined to defend the rights of his indigenous public for whom he was a servant, his appointment would not have mattered.

A former Judge caught lying under oath and perverting the court of justice cannot be seen as anything other than a form of corruption. Corruption not by an indigenous people living on a remote island in the Pacific, but corruption in the very seat of power in Australia, corruption that Australia has subsequently exported to its Pacific neighbours. Was Einfield’s fall from grace simply a matter of justice prevailing over corruption or were there more sinister forces at play?

In any event the results for the Solomon Islands have been profound in terms of its national sovereignty. One of the first national sovereignty issues we encounter when considering the role of RAMSI in the Solomon Islands is that of national or sovereign accountability. Under the FIAA the Participating Police Force (“PPF”) is accountable to the Deputy Police Commissioner who is a senior Australian Police Officer. The FIAA is silent on whether the Deputy Police Commissioner should resign his/her Australian commission before acceding to the post of Deputy Police Commissioner of the Solomon Islands. If the Deputy Police Commissioner is allowed to accede to that post without first resigning their Australian commission, a parallel line of accountability is created within a sovereign state. Is this constitutionally sound?

This parallel line of accountability in turn gives rise to the question of immunity. Under the Solomon Islands Constitution, an aggrieved party may apply to the High Court for redress for the contravention of his/her fundamental rights. Section 18 (1) provides:

…if any person alleges that any of the [human rights provisions] of this Constitution has been, is being or is likely to be contravened in relation to him for, in the case of a person who is detained, if any other person alleges such contravention in relation to the detained then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

If a situation arises where a member of RAMSI is alleged to have violated the fundamental rights of a citizen of the Solomon Islands, the courts would be powerless to act unless RAMSI waives its immunity, which in turn raises the question: are the immunity provisions con tained within the FIAA consistent with Schmitt’s test of Sovereignty?

On the point of Schmitt’s test of Sovereignty, it is worth quoting from the Memorandum of Advice written by Mr Julian Moti QC in his capacity as Attorney-General of the Solomon Islands dated 27 August, 2007. In this advice Moti argues that if it is the intention of the Solomon Island’s Parliament to:

…incubate a permanent state of exception in Solomon Islands by retaining the presence of the visiting contingent here indefinitely, it might simply achieve that by delegating its plenary legislative power to “make laws for the peace, order and good governance of Solomon Islands” to the head of the visiting contingent. Assuming that would not be acceptable, it is necessary to enter into dialogue with all affected parties to reconcile identified problems before legislating future amendments to the existing FIAA regime.

As Carl Schmitt reminds us “Sovereign is he who decides on the exception”  if RAMSI personnel and support corporations are exempt from the equal application of Solomon Islands national registration and revenue laws and are further entitled to privileges and immunities which FIAA grants only to individual members of the visiting contingent, which as Moti argues can amount to nothing less than a permanent state of exception can the Solomon Islands Government still be seen as being sovereign in its own territory or has it, as Moti has suggested ceded its sovereignty to the Australian controlled RAMSI?