Persecution is a process of punishing a person found guilty but prosecution is a process of finding if a person is guilty by providing fair trial. The recent decision of UK Supreme Court to conduct a secret session for first time, is reminiscent of dark ages of 15th Century and the procedure adopted by church at that time to persecute people. Even if an isolated incident may not have strong bearing but as a court of record it has set a most undesirable precedent which shall have far reaching consequences for courts in all jurisdiction.
Secrecy and Natural Justice or Audi Alteram Partem were never bed fellows. In fact they do not see each other, eye to eye.
In respect of secret hearings two arguments are advanced underneath the plank of national security:
1. Disclosure of source of information;
2. National Interest.
The second being the most vague reason, always used to oppress people. I wonder if some what similar reason was given for crucifixion of Jesus.
About the first reason, how the credibility of evidence can be assessed without credibility of witness. How means can be different from ends. On the basis of nationality or religion of person accused we decide the national interest. How we are going to draw the line in future. If I am to be prosecuted with similar standard, how am I going to defend myself.
I am ready to assume that the Bank in question is guilty. But there are too many principles being crushed by one secret hearing. The principle that Justice should not only be done but also seen to have been done. The Principle which forms the basis of Anglo-Saxon Law that ‘Let hundred guilty escape but no innocent be punished.’ Have we given a burial to all the principles on the basis of which we claim to be an open and democratic society. In camera proceedings are not unknown but that is a discretion with the judge. More so those proceedings are secret only from public not the parties. Here the Minister which means bureaucracy decides which material to be kept secret. The object is that people whose personal liberties have been infringed rather who have been tortured may be prevented from claiming damages. All this reminds of dark ages of 15th Century. It is heartening to see that upper house in UK is trying to amend these laws but tyranny is infectious. We can only wonder how long they can resist the temptation. So are countries like India.
If in defending the nation, the very principles on which it was founded, had to be given up, what is the purpose of defending it. It was gone the moment, the principles, on which it was standing, collapsed.
We may better re-invent a form of dictatorial Government rather than continuing with this charade of free trial, independence of judiciary or democracy.