COMMENT
By MELDA MARISSA MALEK
THE recent pirate attack on a Panamian-flagged, Japanese-owned, Filipino-crewed, Malaysian-chartered, Singapore-bound tanker, the MT Bunga Laurel in the high seas off the Gulf of Aden highlighted the escalating seriousness of the piracy threat in that region.
Only the quick and decisive action of the Royal Malaysian Navy’s elite team of commandos or Paskal, prevented the horrific possibility of a hijacking and kidnapping for ransom of the vessel and the 23 crew on board. Seven pirates were apprehended.
The prosecution of the captured Somali suspects would be Malaysia’s first trial involving high-seas piracy and as such careful planning and implementation of the trial is essential to ensure successful prosecution of perpetrators.
(According to latest news report on Feb 1, the Somali pirates were remanded at the Bukit Jalil detention centre until Feb 6).
The event also highlighted the complexity of the piracy situation worldwide, especially on the question of what to do with the apprehended pirates. Unfortunately, it is not as easy as making them walk the plank.
Factors to be considered
Various factors have to be taken into consideration such as costs, logistics, ability to prosecute, due process, and human rights aspects.
Customary law codified in The Law of the Sea Convention 1982 (Unclos) establishes high-seas piracy as a universal crime. Pirates are described as enemy of mankind and as such, all sovereign nations have the jurisdiction to apprehend, prosecute, and punish acts of piracy regardless of where it happens, the pirate’s nationality, the registry of the ship or the destination of the cargo.
Unclos defines piracy as any illegal acts of violence, detention, or depredation, committed for private ends by the crew or the passengers of a private ship and directed against another ship or against persons or property on board such ship on the high seas or in a place outside the jurisdiction of any state.
It has to be noted however, that universal jurisdiction only applies to piracy beyond the jurisdiction of any nation, i.e., the high seas. Pirate-like acts that take place within the jurisdictional waters of a state, such as those that occur in the Straits of Malacca, remain the responsibility and under the jurisdiction of that littoral state and perpetrators are often charged for armed robbery.
Despite the carte blanche nature of universal jurisdiction, prosecution must still come under the framework of local legislation and many countries are wary of or unwilling to shoulder the responsibility of prosecuting apprehended pirates due to the logistical and legal burdens.
The escalating cost incurred throughout the duration for which pirates have to be kept in custody pending transportation and trial, the piecing together of evidence and the gathering of witnesses who may be scattered across the globe, the trial, language barriers, legal assistance to the accused, would all prove to be major hurdles.
Underage pirates will add another layer of complexity to the matter in terms of the different laws applicable as well as the need to adhere strictly to human rights standards.
Pirates are still humans and therefore, entitled to due process and fair treatment while in custody. Political concerns can also be a deterrent and the media scrutiny of the matter may not be welcomed. In the United Kingdom for example, the possibility of pirates staying indefinitely as asylum seekers after incarceration or due to failed prosecution has deterred the United Kingdom from transporting captured pirates for prosecution on UK soil.
Further, there is the concern over the likelihood of the suspects receiving harsh treatment in Somalia upon deportation which would violate British Human Rights Act.
Solutions available
To counter the various legal concerns and logistical difficulties of transporting pirates over long distances to be tried in the arresting state, arrangements were made with a number of East African States to prosecute arrested pirates and to help repatriate hostages.
Malaysia however, has not signed any memorandum with Kenya or Seychelles or any other East African country that allows them to receive and prosecute pirates caught by the Malaysian navy. As such, the choices of what to do with captured pirates are restricted to catch and release, handing over to the barely functioning Somalia, or transporting them to be tried in Malaysian courts. Catch and release will undermine international anti-piracy efforts and only encourage future acts of piracy. Handing them over to Somali authorities where they will most likely be treated harshly or released for being national heroes, is also not a viable option.
It is certainly commendable that the Malaysian Government has decided to prosecute the captured suspects on Malaysian soil thereby, shouldering its international obligations towards repressing piracy. The Courts of Judicature Act 1964 (CJA) and the Penal Code firmly establishes universal jurisdiction to prosecute high sea piracy in Malaysia.
However, the domestic legal framework for the crime is lacking. Malaysia does not have legislation or a provision catering specifically to the crime of piracy and has not incorporated any definition of piracy in domestic legislation.
As such, the captured suspects will have to be tried for other crimes that could best fit the bill such as armed robbery, criminal conspiracy or even terrorism if certain elements are met. Our dilemma is that while the suspects are brought here for the crime of piracy under the international principle of universal jurisdiction, yet when tried, are charged under different offences. Would Malaysia still retain the jurisdiction to try the suspects then?
The MT Bunga Laurel is neither a Malaysian registered ship, nor crewed by Malaysians. Malaysia’s links to the vessel are as the arresting state and in relation to the cargo. It would be less complicated if the ship was Malaysian-registered as it would then provide Malaysia the extraterritorial jurisdiction to try the suspects for any offence under the Penal Code or under any other domestic legislation. Piracy however, usually refers to a broad range of violent acts at sea. Illegal violent acts of piracy under Unclos include armed robbery, murder or assault.
Therefore, the suspects could technically be charged with armed robbery or other penal offences.
More comprehensive future
A comprehensive national anti-piracy enactment would ensure a more effective framework to try and punish pirates for various acts of piracy. It would provide for piracy whether within or beyond Malaysian jurisdiction and could cover acts such as hijacking, kidnapping for ransom, armed robbery or any act that jeopardises Malaysian interests at sea. It would dispel any uncertainty in conducting the prosecution and ensure that any piratical act committed would be met with just punishment. The right tool is required to do the job properly.
Malaysia and its neighbours have been exemplary in successfully suppressing pirate-like acts in the Straits of Malacca. High-seas piracy however, is a different kettle of fish. The recent attack on MT Bunga Laurel was not the first time that a Malaysian-linked ship has been targeted by pirates.
In August 2008, MISC tankers MT Bunga Melati Dua and MT Bunga Melati Lima were hijacked within days in the Gulf of Aden. It is high time for Malaysia to improve its legal regime concerning piracy by enacting a national anti-piracy law.
It was reported in the media not so long ago that a national anti-piracy legislation is in the pipeline. This is certainly a positive development towards enhancing and strengthening the domestic legal framework to deal with piracy that threatens Malaysia’s maritime interests in whatever form.
Perhaps, the Government could also look into the various regional efforts against piracy and consider entering into other joint cooperation efforts. Until a robust international legal regime dealing with piracy can be established and a strong domestic legal framework developed, the best recourse would lie in taking the necessary deterrent steps to foil any pirate attacks before they occur.
*Melda Marissa Malek is a researcher with the centre for ocean law and policy, Maritime Institute of Malaysia. The author is indebted to Amy Aai and Shantini Guna Rajan for their helpful comments and feedback.
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