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Italian Marines & Vienna Convention- II


MOVID had already written a piece on this topic and to bring clarity to the cacophony created by the media and the partisan views expressed by all and sundry, MOVID is following up the earlier blog bloghttps://movid.wordpress.com/2013/03/14/vienna-convention-italian-marines/  with this one.

First and foremost, none talks of the ACT passed by the Indian Parliament, which is Act No.43 of 1972 and called THE DIPLOMATIC RELATIONS (VIENNA CONVENTION)ACT,1972.

Further the Indian Constitution which is the bed-rock of all laws made after India became a Republic and a touchstone of laws made before that at Article 51 says as follows:

Article 51(c) in The Constitution Of India 1949

(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration

Though Article 51(c) says we got to ‘respect’, all International Law and Treaty Obligations, they  are NOT binding on the Superior Courts of India, as interpreted in the case of Jolly George Verghese & Anr vs The Bank Of Cochin on 4 February, 1980 thus:

India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. Even so, until the Municipal Law is changed to accommodate the Covenant what binds the courts is the former not the latter.

(I wonder if Justice Krishna Iyer was ignorant of the ACT passed by then by the parliament – or was it not notified by 1980?- God knows, we Indians have no recourse to ascertain whether a bill having been passed by the Houses has received assent from the President and thereafter whether the Government had notified the ACT to come into force!)

Therefore we as Indians HAVE TO go by the Act of parliament mentioned above. Which at Section 5 states as follows:-

5. Waiver.-

For the purpose of article 32 of the Convention set out in the Schedule, a

waiver by the head of the mission of any State or any person for the time being

performing his functions shall be deemed to be a waiver by that State.

and Article 32 includes a sub-paragraph which is

2.Waiver must always be express

Further, Article 31 to the Schedule to the said Indian Act says:

1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction of

the receiving State. He shall also enjoy immunity from its civil and administrative

jurisdiction, except in the case of:

a) A real action relating to private immovable property situated in the

territory of the receiving State, unless he holds it on behalf of the sending State for the

purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is

involved as executor, administrator, heir or legatee as a private person and not on

behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised

by the diplomatic agent in the receiving State outside his official functions.

2.A diplomatic agent is not obliged to give evidence as a witness.

My question is very fundamental:

WHEN THE ACT OF PARLIAMENT SUFFUSES A DIPLOMAT WITH ALL THESE IMMUNITIES AND PRIVILEGES, HOW COME THE LEARNED PROSECUTORS DID NOT DEMUR WHEN A DIPLOMAT STOOD GUARANTEE TO THE RETURN OF THE MARINES?

The more intriguing part is the latest argument which is forwarded by all and sundry that the Italian Diplomat by having assured the court of the return of the Italian Marines, has WAIVED HIS DIPLOMATIC IMMUNITIES AND PRIVILEGES!

What a fantastic argument! The Act of the Parliament of India has accepted Article 32 of the Vienna Convention on Diplomatic Immunities and Privileges and has incorporated the same in the Schedule to the Indian ACT, so where is the EXPRESS WAIVER?

It is time our “officers of Court” at least read up the relevant ACTS and then open their mouths in the Courts otherwise, we as Indians would have not only unenforced laws but also massively misinterpreted laws!

 

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Vienna convention & Italian Marines!


I had a friend who was in the marketing of Credit Cards issued by a bank. During the course of our ghup-shup, he said that the only two categories of professionals who are not sought after by us for selling credit cards are Police personnel and Advocates. So, when quizzed further, he said, “BOSS, who will chase a policeman or a lawyer for payment? The former will book you in a false case and the second one will take you to court on flimsy grounds and keep you occupied there- which, anyway,  for the lawyer is his place of work!”

This is called WISDOM, as the purpose of a credit card company is to lend money, levy exorbitant interest and collect payments from the credit-card holder. That is their business. It is not their business to answer the allegations and accusations of police officers on flimsy cases or to make a roll-call to the courts.

When such is the case, how did the lawyers representing the prosecution of the Marines, who are accused of having killed two Indians, let the marines on furlough of 4weeks based on the assurances given by an ENVOY of ITALY, who is soaked in all kinds of immunities under the VIENNA CONVENTION?

I know for a fact that the VIENNA CONVENTION did exist on the day that the PAROLE was granted to the Marines. And even a greenhorn like me knows that an accredited ENVOY in a diplomatic mission is IMMUNE to even CRIMINAL LIABILITY. So where was the necessity to enlarge the marines on parole, so that they may be able to vote for the national elections in Italy! Did these Marines vote in the previous elections? And in a long shot- were the members elected in their constituencies win or lose by 2 votes that these marines’ votes were so crucial? Alternatively, they could have been made to declare their preferences by postal ballots and in the event of numbers of the winning and losing candidates were within the margin where these votes would make a difference, then these postal ballots could be opened for a final decision.

When it comes to enlarging Indian nationals on bail is concerned, the lawyers object vehemently and deny a right guaranteed to them, but when it concerns foreign individuals why are we so ‘magnanimous’? Are we still slaves and the Caucasoid skin superior? NAY, NAY , NAY.

Neither are our lawyers incompetent nor the courts ignorant. Our system being ADVERSARIAL, if the opposite side doesn’t plead a point, it is neither the duty of the lower courts to substitute its wisdom. But, as regards the SUPERIOR COURTS, it is fact known to all that in the “interest of justice” they could order on points not pleaded. These courts have inherent powers to dispense justice.

Yet in this matter, that the ENVOY cannot be held liable by the courts, had been ignored. If we go by the fact that the marines killed Indians within its territorial waters, Section 2 of the IPC would apply and if the killing took place in the international waters, Section 3 of the IPC would apply even though  sub-section 2 of section 4 of the IPC may give the accused a semblance of relief. In any case, we have started the proceedings and I see no reasons why the prosecution has let the Marines without taking all necessary precaution!

Mr.Harish Salve is made to seem like a principled LAWYER (oxymoron?), who is outraged by the conduct of the Italians and  he is supposed to have told the Italian Embassy that he would not be able to represent the accused Italian Marines. That is a classic case of LOCKING THE STABLE DOORS AFTER THE HORSES HAVE BOLTED!

More than these palliatives, an OFFICER OF COURT should firstly ensure that even though the accused be his client, in the interest of bringing the accused to Justice, Shri Harish Salve should have sensitized the court to take all possible precaution to ensure that they submit to our Domestic laws. Shri Harish Salve, who has been the amicus-curae to the Supreme Court in many matters appears to have unintentionally allowed his stature to be leveraged by the Italians to jump bail!

Since it appears that we cannot deny a foreigner, parole or bail merely on the grounds that he/she is a foreignor, it is time we made some rules subject to which foreigners could be granted bail/parole/furlough, failing which similar instances are likely to recur with the Government answering the parliament on such a simple issue like “jumping bail”!

In any case, let us wait till 22nd March 2013 to see if the Marines come back- it is still possible that the Italians are testing the waters to jump  bail and if the reaction is strong domestically, they might still be forced to return to India! Whether the ITALIAN JOB is perfect or not , we gotta watch. But round one goes to the Italians who have made the system believe that those 2 votes was the pivot on which the whole democracy of Italy revolved on. Berlusconi ……..where are u?

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