The role of the Judiciary is crucial in every society.
The sacrosanct separation of powers between the Executive/Legislative and the Judiciary coupled with the independence of the Judiciary are cardinal principles of a parliamentary democracy. These are enshrined in the Constitution. In parliamentary democracies of the world, the Judiciary is the ultimate recourse for justice against unfair treatment of every kind.
Even in countries where democracy and rights are being flouted, an independent judiciary remains the ultimate bulwark against abuse and the defence of civil liberties. It is the final authority that assures that justice is done. A very important and heavy responsibility therefore rests with the Judiciary. In honouring this pivotal role in the country, the Judiciary must also meet the test of public scrutiny and ensure that the public interest is safeguarded at all times.
Earlier this week, the Bombay High Court in a path breaking judgement in favour of creativity ruled in favour of Anurag Kashyap, one of the most talented directors of Bollywood and his film ‘Udta Punjab’. Amidst allegations that the film was being stalled by the political Establishment, the filmmaker had protested against the 89 cuts imposed on the film and the removal of ‘Punjab’ from the title of the film decreed by the Censor Board on the grounds that it showed the State of Punjab in a bad light. The film depicts and highlights the serious problem of drug addiction and abuse in Punjab, hence the title ‘Udta Punjab’, udta meaning ‘flying’. Anurag Kashyap, backed by the film fraternity and eminent filmmakers like Shyam Benegal, moved the High Court as the series of cuts demanded by the Censor Board set a dangerous precedent against creative filmmaking.
Elaborating the principles underpinning its judgement with pedagogical clarity, the Bombay High Court said: ‘None can dictate to the filmmaker how to make his film and what should be the context… It is entirely for them to choose the setting, the underlying theme and the story line.’ The High Court added that the role of the Censor Board was to certify not censor and that there was no need for excessive censorship as the public was the biggest censor. As per the ruling of the High Court, the film to the delight of Bollywood cognoscenti will be released at the end of the week with only one cut and a changed disclaimer stating that the film was not against any specific State, did not support drug abuse or the use of swear words.
A measured and incisive judgement had cut through the build-up, hype and controversy and deftly resolved the dispute. The High Court judgement was hailed by filmmakers, creative artists and the public as a victory for democracy. Apart from establishing jurisprudence, the rationale of the Court judgement grounded on sound principles also meets the test of reasonableness and responds to the expectations of fairness of the larger public. It was also pedagogical. These are important considerations especially in cases which are in the limelight and glare of public scrutiny and grip public opinion.
Boskalis saga: Time for reckoning
On the local front, the never ending Boskalis saga is a case in point. It is time for judicial reckoning. In all such cases particularly, justice must not only be done but must be seen to be done. The country cannot vote a purportedly robust Prevention of Corruption Act (POCA) since 2002 without also ensuring that it is rigorously administered. What is happening in the protracted Boskalis case is therefore disconcerting. In plain terms, it is a test case to validate whether the process of law can function smoothly unhindered or otherwise.
It is a case dating as far back as 2008, of alleged bribery to enable the firm Boskalis International BV to secure a major contract of dredging in the port. The deposition of the two cadres of Boskalis who have already admitted in the Intermediate Court in Mauritius in 2013 to having given bribes and been found guilty and fined under POCA, is therefore vital to determine this long outstanding case.
Under the treaty of Mutual and Legal Assistance, the Court of Rotterdam had accepted the Mauritian request to collaborate with the Mauritian Judiciary on the case. As the two key witnesses feared for their safety, it was agreed between the parties that they would give evidence through video-conference. However, owing to repeated ‘technical’ hiccups related to internet connections, the key deposition of the Dutch witnesses could not be arranged during the numerous instances the Court met to hear the case. The Rotterdam Court tired of these endless technical setbacks has decided to end their collaboration with Mauritius in the case.
It is flabbergasting that a country that takes pride in its Information and Communication Technology (ICT) sector and has the avowed ambition to transform it into a major pillar of the economy is systematically incapable of organising a simple internet connection for a video deposition of key witnesses in a protracted case of alleged corruption. Such blatant inefficiency taints the reputation and probity of the country and its authorities and undermines the efforts of our anti-corruption institutions and the judiciary to nab those locally accused of corruption in the Boskalis case.
The saga of repeated technical impediments which prevent key witnesses in the case to give vital evidence is unacceptable and obviously raises doubts and potent questions in the public. This culpable procrastination must end. In the light of the growing clamour in the country, the onus is therefore squarely on government and the authorities to demonstrate the will to urgently re-boot the collaboration with the Rotterdam Court and the internet connection for a prompt determination of this long overdue case, in the public interest.
This is yet another test of good governance in the country. Where there is a will, there is a way.
POCA: Clarity over legalese
The Prevention of Corruption Act (POCA) is an anti corruption legal instrument. However, the recent divergent views expressed in court judgements by two institutions of our Judiciary on some key elements of such an important piece of legislation requires unequivocal clarification for the smooth functioning of justice in the country. (The Intermediate Court and the Supreme Court judgements in the matter of PK Jugnauth vs ICAC & Ors). The court judgements have brought to light that this important text of law can lead to diverse interpretations of key offences such as conflict of interests, grounded on related case law and jurisprudence. The country cannot robustly combat corruption if there is not a clear cut and common understanding of each of the corruption offences listed in the law.
The Independent Commission against Corruption (ICAC) cannot lead an efficient battle against corruption if key elements of the enabling law, POCA, remain subject to differing interpretation of legalese. In particular, the court judgement brought to light diverse ‘unsuspected’ aspects of the offence of conflict of interests such as the onus of proof, the notion of ‘personal interest’, acting in good faith, the knowledge and intent of the accused and the distinction between decisions relating to the award of a contract and post award ones relating to the execution of the contract.
It should be noted that in its judgement, the Supreme Court has also observed that it was the first occasion that the offence of conflict of interests under section 13 (2) of POCA has come before it for determination
The POCA is too important a law for some of its core offences such as conflict of interests to be allowed to be the subject of diverse interpretations, the more so as a number of cases involving conflict of interests are either awaiting trial or the DPP’s decision to prosecute or not. In the interest of a fair administration of justice, it is therefore imperative that, subject to the approval of the Supreme Court, the lights, experience and wise counsel of the legal luminaries of the Judicial Committee of the Privy Council are modestly sought to enlighten and provide unequivocal clarity on all these key elements of POCA. Such clarity will help the Judiciary stem corruption and more smoothly promote the cause of fair justice towards one and all, in the public interest.
Beyond the protagonists involved and the underlying political undertones, the authorities and all those who support a system of fair and prompt justice in the country therefore owe it to themselves to seek and obtain that clarity required to enable a robust and effective application of POCA based on an unequivocal and common interpretation of the corruption offences detailed therein. This will ensure that justice is seen to be done with dispatch, free from trials and tribulations.
* Published in print edition on 17 June 2016