In a recent finding by Papua New Guinea’s Chief Justice, Sir Salamo Injia, the Manus Island detention centre was declared to be formally closed. The finding was compelled by a previous PNG Supreme Court decision that found the detention centre to be illegal because it breached PNG’s constitutional rights. These two legal moves would, ordinarily, give those of us watching the travesty of justice that has been unfolding in Australia’s offshore detention centres grounds for hope. The situation, however, is far from sanguine.
The latest finding, indeed, exemplifies the arcane operations of law to fabricate legal fictions that have no grounding in reality, despite deploying the literal application of the rule of law: PNG’s Chief Justice declared Manus detention closed ‘despite the fact that roughly 860 men remain in it’ (ABC News 13/03/17, our emphasis). In juridically declaring the detention centre closed, nothing has changed for the refugees and asylum seekers detained there except for a nomenclatural change: they have been told that they no longer inhabit a detention centre, even as they have not been moved from their existing compounds; rather, the detention centre, in name only, has now reverted back to its original military purpose: a naval base. A certain brutal and circular logic here fulfils itself: a naval base becomes a detention centre that, in turn, reverts back to a military facility.
In the context of this militarised logic that violates all international norms and conventions on the treatment of asylum seekers and refugees there remains one constant: Australia’s abrogation of its responsibilities and its sanctioning, by design, of institutionalised practices of abuse and torture against its asylum seekers and refugees, precisely in order to instrumentalise them into international signs of deterrence.
Through what can only be called the exercise of legal fiat, a detention centre ceases, in name only, to exist, even as all the material infrastructure of the detention centre is left intact and in place: ‘The Australian Department of Immigration and Border Protection,’ despite the Chief Justice’s finding, ‘still lists the centre as being operational and housing 861 men.’ Broadspectrum, the camp operator, continues its routines of abuse — turning them up a notch. As we began to write this commentary, we heard reports that inmates of the camp are being subjected to the punitive restriction of access to food; in the words of Behrouz Boochani, a wall or fence has been constructed so that the men are served their meals ‘from small holes in the wall, just like for criminals’. An Amnesty spokesperson warns that such a restriction of adequate food could ‘amount to a violation on the prohibition against torture’.
Through the PNG court’s legal fiat, the systemic abuse and torture, and the suspension of rights in the compounds of Mike, Oscar, Foxtrot and Delta are only intensified where they do not continue as business as usual. In other words, the detainees have, through this legal sleight-of-hand, been moved to nowhere. Here we are here in the realm of ‘alternative facts’ and ‘fake news’: the ‘alternative fact’ to the existing fact that the men are still held captive in a detention centre is instantiated here through a juridical finding that has only come to pass in order to address a breach in PNG law. This juridical address, however, stands in stark contradistinction to the PNG’s Supreme Court previous finding that Manus detention centre was, unequivocally, illegal and thus breached PNG’s constitutional law.
Two forms of law are materialised by this case: the rule of law that is disjunctive to justice, and the rule of law that is driven to deliver justice, precisely because it acknowledges the breaching of constitutional rights. Standing in the shameful shadows of these two PNG legal findings is the abject spectre of Australian law that, virtually at every turn and despite the most admirable of attempts by a cohort of tireless refugee lawyers, has failed to offer either protection or justice to its refugee charges.
In the space between these two forms of law, the men of Manus detention centre fall through: to nowhere. In the locus of this nowhere, their lives are arrested. The refugees and asylum seekers of Manus continue to lead arrested lives: arrested on arrival by boat to Australia’s excised immigration zones and dispatched to offshore immigration prisons; arrested in the annihilating space of indefinite detention, where there is no time, and where everything is held in a state of suffocating and oppressive suspension; arrested into a state of paralysing immobility in which there is no glimpsing of a future; arrested in a space where they have been converted into commodities of exchange in a ‘deal’ with the Trump administration that has, thus far, delivered them no exit from their detention or suffering.
Suvendrini Perera and Joseph Pugliese, RAPBS