Eight months ago, the Indian Supreme Court was asked to rule on the validity of the allocation of the 3G spectrum. The Indian government argued that no precedent existed internationally for interference in executive decisions made. The same court was also asked to rule on the allocation of coal mining rights by the government to various private sector enterprises.
In both cases, various multi-national companies were involved such as Voda Phone from UK, and BHP Billiton from Australia amongst others.
The Indian constitution has as one of its clauses the protection of individual rights. It was argued that due to the corrupt and biased nature of these allocations that the government in fact loss over USD 500 million in each case, and that these losses could have been used for society at large and thus improving the quality of lives.
The ruling of the court in the case of the 3G spectrum was that it was important for the court to get involved when resources that belong to the country are not applied correctly by the state. The 3G licenses were scrapped by the court, and auctions held. All the major companies complained, but adhered out of respect for the court. The mobile industry continues to grow.
The ruling in the coal allocation was that all licenses awarded were to be reviewed by the court. The reason being that when any executive decision negatively affects society, the court can be called to be an arbitrator, in this case the incorrect use of the countries natural resources. The response of the government was to immediately scrap some 42 licenses. No reason was given.
In South Africa, my understanding is that the Supreme Court ruled that no precedent for interference in executive decisions existed. All courts in the world rely on each other’s rulings for guidance. I suggest that OUTA take the matter up with the courts again. We will never know if we don’t try.