SEAFARER CRIMINALISATION | Poisoned well is a poor fate for anyone

Originally posted in Lloyd’s List, 2010/09/29

When bureaucrats decide to pile on the charges a seafarer stands little chance of justice

IN MY last column I presented a New Zealand case of a Sri Lankan seafarer that combines terrorism, scuttling, refugee status, human rights and perverse government decisions (‘Rule by bureaucracy is not always by right’, Lloyd’s List September 15).

A Sri Lankan engineer, factually tied to the Tamil Tigers, was shanghaied in Thailand; helped scuttle his ship in Chennai; was arrested, tried, acquitted then imprisoned at the prosecution’s appeal; served time and went to New Zealand where he was admitted. He applied for refuge.

The hearing officer denied him. The engineer appealed. The subsequent bureaucratic opinion not only denied him — it also piled on every conceivable bad fact and ill fate which ever happened to him, evidence-based or rumour or hearsay without verification. Using remarkably fallacious arguments of motive, intent and guilt by association of past bad acts, it denied him. The High Court denied judicial review of the poisoned well. The Court of Appeal disagreed with the bureaucrats and High Court on the same facts. The government appealed. The Supreme Court held for the engineer.

Seafarer criminalisation is an important phenomenon but seems to be mirrored civilly and administratively by bias against seafarers. Seafarers, as any other class, expect rule of law evenly, fairly and duly applied. That often does not happen to them.

States subtly deny access to civil justice by putting bureaucratic hurdles in front of them. Bureaucrats play by rules not allowed in court. The result is often unfair denial just as surely as denial for a substantive reason. The hurdles are rationalised by legislatures as shielding the courts from frivolous matters.

However, the rejection of claims is a bureaucrat’s raison d’être. To obtain redress costs money. When comparing insult with purse, the purse often wins; most rejected applicants have no money and fade away. The government is bothered no more. The courts are not clogged. The aggrieved distrusts and resents the government and the courts in equal value. Denial of justice is just as certain. The antagonism created is just as sure.

Seafarers have little political visibility and no united voice. Most shoreside people simply do not care. Company attitudes vary from seeing seafarers as a necessary evil to dealing with them ethically. Bureaucratic attitudes vary with the political winds, often because seafarers, out of sight and out of mind, and perceived of the lower orders, are easy to deal with by denial or rejection. They often just go away.

Bureaucracies sense political moods. When a whiff of either pollution or terrorism is in the air, they go after either civil applicant or criminal defendant tooth and claw. These defences or prosecutions are always defensible within the righteousness of attending the people’s business. Civil rejection is much easier with a person from a weak class. When things get to the law courts, matters may sort themselves out. Let us examine the case for the proposition that bureaucracies playing by different rules can be reversed at great expense — but that the bureaucratic system employed by states denies easy access to justice and is unfair from the start to seafarers of any class.

The inquisitorial procedures of civil law states are similar to the administrative procedures of governments in common law states. New Zealand authorises investigatory commissions having no accusative powers but, importantly, are not constrained by the court’s rules of evidence. Commissions draw conclusions and issue reports. Civil law courts on the other hand have scholarly judges scrutinising the facts and the law.

A commission of New Zealand’s sort has bureaucrats pretending at law. With no evidentiary constraints, it brought facts not allowable in court about the seafarer. Using them, it spun a tale motivated by its predilections toward denial of entry, the association of facts essentially unassociable, poor logical processes and pandering to the political positions of xenophobia and security. Bureaucracy trampled him because it could. New Zealand uses its commission law as a barrier to justice just as effectively as if the door were shut to the court house. This is legislative wilful blindness and wilful abuse by bureaucracy.

Criminal acquittal of the engineer seafarer did not mean freedom. In India (as in England and many other common law states) if the prosecutor appeals, the Court of Appeal can change the verdict and the sentence. There is no jury at the Court of Appeal. Therefore, India in legislative sleight of hand gives the government a second chance at conviction — without a jury. Therefore, the engineer has lost his right to jury merely because of an appeal by the government. This is conviction at all costs. The Court of Appeal relied on the facts. It found no terrorism but found other statutory crimes which had been acquitted. This is unfair, abusive and unjust. The engineer spent three years of his life in an Indian prison because of it.

Piling on charges against the engineer seafarer, although unethical in many jurisdictions, is a tried and true tactic for some governments. If conviction cannot be had on one charge maybe it can be had on other, overlapping ones, as in India perhaps on appeal. In the US the government can drop the predicate charge and convict on associated charges such as money laundering or making false statements to the government, which were in fact not probatively related to the non-existent predicate charge.

Commissions pile on arguments, as in New Zealand. The well can be poisoned. The New Zealand commission poisoned the well; the High Court swallowed the water. The Court of Appeal followed the law. The government protested.

Such state methods seem to violate the spirit of the Human Rights Convention and the domestic laws enabling it. Resolution of cases justly is lost to ends-means arguments. Governments, lower courts and commissions have difficulty distinguishing among crimes, political crimes and crimes against humanity. They are swayed by the political zeitgeist.

The only refreshing outcome here was that the Supreme Court of New Zealand got the answer right for a man tarred bureaucratically with terrorism by association.

John AC Cartner is a maritime lawyer practising in Washington, DC. He holds the US Coast Guard’s unrestricted master mariner certification and is the principal author of The International Law of the Shipmaster (2009) Informa/Lloyds. jacc@shipmasterlaw.com

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