Maritime Legal Conundrum

29 Jun, 2005    ·   1778

Vijay Sakhuja highlights the perils of piracy on the high seas and the need for strengthening anti-piracy laws in India

In the last three months, there have been two major legal debacles in cases relating to terror and crime in India. The first case relates to the acquittal of pirates who hijacked MV Alondra Rainbow in November 1999. The second case involves the acquittal of the accused in the Gahtkopar blast case. The cases highlight the legal loopholes that prevent the prosecution of pirates and terrorists.

It is the MV Alondra Rainbow case that merits greater scrutiny since it was the first such case that came up before the Indian courts. The standoff between the hijacked MV Alondra Rainbow, a 7,000 ton Panama registered vessel, belonging to Japanese owners and Indian naval and coast guard ships in November 1999, and its final capture was regarded as a great success for maritime community to counter sea piracy. The vessel was en route from Kuala Tanjung, Indonesia to Milke, Japan. The Piracy Reporting Centre (PRC) of the International Maritime Bureau (IMB) had announced through a worldwide broadcast that pirates had captured the vessel. According to the PRC, the crew of the vessel were found safe in Thailand and the vessel was expected to turn up in any Indian port to discharge cargo. What followed was a drama on the high seas leading to the arrest of pirates who came up for trial in Mumbai.

By February 2003, the Mumbai Sessions Court accepted the charges and the 15 pirates were awarded an imprisonment of seven years and varying fines. The Indian authorities received accolades for capturing the pirates and the ship. The IMB had noted, "We are delighted that India took the difficult decision to assume jurisdiction and are very pleased with the outcome…It has been a long hard road for them to get to this day, but hopefully this conviction will deter other pirates. I hope this case serves as a warning that the world will no longer tolerate this crime and that those who engage in it can expect tough justice when they are caught."

Notwithstanding this accomplishment, the success of prosecuting the pirates remains suspect. On April 18, 2005, the Mumbai High Court overruled the Sessions Court ruling and acquitted all convicted in the sea piracy case. The reason proffered was that there were some 'systemic/ organisational failures', which led to the acquittal of the criminals. Besides, the Japanese Master and the Engineer of the vessel, fearing reprisals, were unwilling to identify the culprits.

The MV Alondra Rainbow case study points to the fact that notwithstanding legal institutions and instruments to prosecute pirates, it is difficult to bring pirates to book. For instance, the Indonesian Navy has recommended to its government that the country establish maritime courts to try criminals operating in Indonesian waters. Authorities claim that regular courts are seldom able to understand the context and intricacies of maritime crime and as such hand out inappropriate verdicts. Indonesian legislators have now recommended that the Navy work with other government ministries to create draft legislation that would establish the courts.

While the Alondra Rainbow incident can be termed as a legal debacle for the maritime community, there have been some successes too. Interestingly, on February 18, 2003, a Chinese court in the city of Shantou handed out jail sentences to ten pirates of Indonesian origin for hijacking a Thailand-registered oil tanker, Siam Xanxai, in June 1999, whilst it was in Malaysian waters and bringing the hijacked ship into Chinese waters. The sentences include jail terms ranging from ten to fifteen years and a fine up to $3,600. The pirates had falsified ship's documents and even changed the ship's port of registration to read Singapore. The vessel along with its cargo of 1,900 tons of diesel fuel worth around $1million was retuned to its Thai owners.

China also put on trial 38 people involved in maritime crime including those involved in slaying 23 crew members of MV Cheng Sheng. The crew was handcuffed, blindfolded, beaten to death and their bodies thrown overboard. Reportedly, the pirates posed as Chinese anti-smuggling police and operated in a gang. The Intermediate People's Court, in the southern province of Guangdong, charged the gang with crimes including murder, robbery, and possessions of weapons, drugs, and explosives. The Beijing Morning Post, a state run publication, noted that it was China's biggest case of robbery and murder in fifty years of Communist rule.

Given that there has been a mixed bag of successes and failures in prosecuting pirates, what is perhaps needed is a more robust legal system to prosecute acts of terror and crime in territorial waters. What is also needed is a community of trained legal maritime experts who can understand the nuances of maritime crime. If the Indian government plans to establish a separate Marine Police Wing, it must take into consideration the fact that the new infrastructure must include legal support systems. It should not be that 'it is easy to capture a pirate but difficult to prosecute'.