Thursday, April 4, 2013

Crime and Punishment

"---------another NIA official adding that without SUA, the NIA would have no jurisdiction over the case. " Very very interesting statement. In plain words it means that SUA was invoked to make the NIA eligible to investigate and not because the crime falls within the ambit of SUA. It boils down to the simple fact that India does not have any agency which can investigate crime at high seas. This SUA in full form is 'Convention For The Suppression of Unlawful Acts Against the Safety of Maritime Navigation'. In the beginning of the Act is stressed again and again that it is for the purpose of terrorism. There it was specifically stated that '..NOTING that acts of the crew which are subject to normal shipboard discipline are outside the purview of this Convention...'. What does it mean ? It is specifically to be used to a criminal activity is connected or at least suspected to be connected with terrorism. By no stretch of imagination this alleged shooting can be called a terrorism connected activity. One learned and honourable judge of a Kerala court when asked by the defence counsel whether this shooting can be termed as an act of terrorism has answered orally that it can be considered but did not give any further explanation to his statement. I have long back heard that, for the recruitment to some government post which had age bar a protege of a minister was to be considered and obviously selected. Unfortunately the person was not eligible due to age bar. So the rule was changed so that that person could also apply. After the person was selected the age bar was restored to its previous level. This also looks something on those lines. Just to make NIA eligible to do investigation change the law to be applied. My question is simple. When India do not have any proper law or agency to try this case, and when Italy had paid adequate compensation to the aggrieved parties, what was the purpose of hogging this case from the Italian hands? Does India think that Italy will not try this case properly and punish the marines if found guilty?  Does India think that India is the only country in the world where dispensation of justice is really JUST ? Will not proper justice meted out to the crime committed on Indian citizen if the trial and punishment was done by Italy? If all the crimes committed against Indian citizens are to be tried in India only will not India have to ask all other countries of the world to send back all the Indians who have committed crimes in other countries. Why not take up the matter of Rajat Gupta and ask US to send him to India for proper and just trial here? Why not our Parliament enact a law that all the citizens of India who commit crime abroad should be deported to India by the countries where the crimes were committed to have a fair and just trial? If any MPs read this I am sure at least some of them will take up this suggestion of enacting this law to get all our citizens who have committed crime abroad to be sent to India.

Wednesday, April 3, 2013

Diplomatic Immunity and Immunity for Soldiers

Judges are human and they can err. Many an innocent has suffered due to mistake in dispensation of justice. I fail to understand how he came to the conclusion that the Marines were mercenaries employed by the shipping company for remuneration? There is no doubt that they are military personnel (or if you want navy) of Italian government. How they came to be on the ship. They were sent there. The question is whether they were on private capacity or sent by government. Had they been in private capacity they would have been termed as Private Armed Security Guard. In that case they will not have any immunity and they will work under the captain of the ship. If they were posted as Vessel Protection Detachment then they are sent by the government and will be directly under the control of government and the captain will not have any authority on them. In this case the marines were not under the captain and it shows clearly they were deployed as VPD and they were protecting the assets of Italy. Then they should have immunity from any action of another country. These things were not seen by the learned judge. The pity is neither SC went to this issue.Guilfoyle, Bellish and others have told that the marines have immunity.

Mr.Padmakumar, the marines are innocent until proved guilty in a court of law. The question of immunity was told in the two blogs to which you only gave me guidance. I do not know why Mr.Salve did not raise objection to the question of immunity. I read the blogs DJILP,EJIL and Communis hostis.. It was one of the it was given the immunity case in this case of marines. There it was told that it is long process of argument but finally it will won. Why Harish Salve did not contest it? In all probability he must have been very confident that the case can be won even without resorting to that. That was I understood from the interview of him in 'Devils Advocate' programme. When the boat owner Freddy is put on witness stand, and he is sure to be put as prosecution witness as he was the one who was very much there when it happened, defence can make him tell the truth that the boat was sailing towards the ship without heeding to the warning shot. He told it in private. My interest in this case is purely academic. I am no lawyer but went to the concerned portions of the law and came to my conclusions. I am ready to argue on the aspect of the law and learn. I liked to read those blogs by them who are masters in International law. I read two more blogs one by Anup Surendranth and another by Harish Sankar. They all give excellent analysis of the case. That is why I new that SC erred in its view of diplomatic immunity. The ambassador cannot be restrained whether SC or HM orders. He has immunity.I don't think that courts are always correct. They make mistakes.

Saturday, March 30, 2013

Italian Marines

First issue is that of jurisdiction. To a lay man like me the UNCLOS and Maritime Zone Act clearly shows that the jurisdiction of a country extends only up 12 NM from the base line. Criminal laws cannot be applied there. This shooting was on suspected pirates which unfortunately turned out to be not so is a clear criminal act and nothing to do with security of India. The marines should be tried for homicide as per the law and since it is out of territorial waters of India it should be done by Italy as per International laws. As regards the issue of Italy first refusing to send back the marines and later agreeing to send them is a diplomatic faux pas. Ambassadors diplomatic immunity cannot be questioned at all. He has stood surety on behalf of his country Italy. It is not in his personal capacity. If he has asked Supreme Court to allow the marines to go to Italy it was because the marines were under the care of SC and not he was submitting to the jurisdiction of SC. So his immunity is intact. Supreme Court should not have taken the assurance as he was immune and taken some other surety to ensure the marines return. People are arguing that Mancini has lost his immunity when he applied for the temporary release of the marines. Mancini could loose his immunity in an imagingary case like this. Suppose his car was hit by another car in the market or vice versa and assume there was some argument with the driver of the other car. If during that if Mancini had hit the other one and he hit back. If Mancini goes to an Indian court he will lose his immunity for that particular case as he has submitted himself to the Indian law. Here he has given assurance on behalf of Italy and he cannot be touched without crossing the Vienna Convention.

Sunday, March 24, 2013

It is our boat, Our courts--Opinion > The Hindu

In this article the author Mr.V.S.Mani has argued that India has authority to try the case. To support his arguments he has quoted the relevant sections of the Indian and International laws.
1.He argues that Article 297 of the Constitution of India does not refer to a 'Contiguous zone'. That does not mean that contiguous zone does not exist but only that it has not been named so. The main zone beyond territorial waters of a coastal state is the EEZ extending up to 200 nautical miles from the base line on the shore. It is this Exclusive Economic Zone which is subdivided into 1.Territorial waters where all the laws of the land applies 2. The contiguous zone between 12 and 24 N.M from the base line where only security, customs, immigration and pollution laws of the country applies and beyond that zone where India has exclusive rights to the mineral and other wealth in the sea bed. It is not proper to read that Exclusive Economic Zone as lying beyond Territorial waters. Even territorial waters is part of the EEZ but since it is already termed as territorial waters it need not be stressed. That is all.

2.It is argued that the Central Government may enact a law and notify in the Gazette. But I think that it is mentioned that any such laws should confirm to the International law. India is a signatory to the UNCLOS which has specified that the criminal laws of the coastal state will be applicable only in territorial waters. So India cannot extend its criminal laws to contiguous zone without the concurrence of the UN authority or should inform of its decision to with draw from the UNCLOS agreement.

3.It is argued that UNCLOS mentions only navigational incidents to be tried by the flag state. Criminal activities are not included. If criminal activities does not come as per the UNCLOS under flag ship rule it does not mean that it is something any of the parties can try. If there is a lacunae in the law it should be rectified by an international authority. This was a right occasion to decide in cases like this where two countries are involved which country should have the right to try the case. Had this happened in one ship laws are clear. Unfortunately the crime started in Italy and ended in India. So which country should try. Here only the author has some point. In US in one case a person send some poison from one state to another in another state. The victim died in the second state and the perpetrator was tried in the victims state. That way India has right to try the case. But does a boat without any specific flag constitute legally as a part of India?

Tuesday, March 19, 2013

New Indian Constitution

I think it is high time that we once more amend our respected and revered constitution. I am no expert on constitution who can interpret like Mullas can interpret Quran as to their whims and fancies. Being a 'Mango Man' I shall state my ideas in the most primitive and blunt matter.//////////// /   We the people of India having been subjected to all sorts of discrimination and slight at the hands of the world community here by rewrite our Constitution to ward of any such attempts from the world community in future. Once this amendment is passed by the both houses of Parliaments and duly signed by our honourable president it will cancel our earlier Constitution. /////  Our Constitution shall over ride all other International Laws, Conventions, Norms, Unwritten practices and all such things within the Republic of India and in all places where its laws hold good as stated in the previous constitution. It will be acceptable to foray into foreign territories and get any offender and make law applicable. Once the offender has put his foot in India territory Indian laws will apply irrespective of the fact whethr the original crime was committed in a foreign land. No diplomats will enjoy any blanket immunity. Whatever immunity he wants to claim will be given at the pleasure of the President of India who can get any advice from law ministry. Any diplomat who cheats is liable to be put on a donkey with face blackened and seated backwards. He will be wearing a garland made of old chappals. The useless and jobless people will be given an allowance of Rs.100/- to boo the diplomat and follow. (Since I have run out of ideas on how the diplomat can be further humiliated this article will continue after a very longish break)

Monday, March 18, 2013

Italy may file suit

Supreme court has squashed all the proceedings by Kerala courts. By inference all the actions taken by Kerala State has no legality. The state has no jurisdiction on the waters where the incident took place. It cannot arrest the marines or ship as it has no authority. Hence the arrest and detention of the ship was illegal. Keeping them in prison was also illegal and keeping the ship in the port also illegal. Since the marines were not arrested legally their escape cannot be construed as an illegal action. They have only escaped from an illegal detention. It is absurd to take action against them or against the ambassador. Italy in all probability will file suit in an International Court against the detention of the Marines illegally and detaining the ship illegally the government is liable to pay compensation. Centre is sure to put all the blame on the adventureous Kerala Government.  All those crying justice can start contribution to the Italian fund. The fund will be called "Kerala CM's Special Fund to pay Italy for our garguntuan mistake" There will not be any tax deduction facility as Centre also need money to pay for the escalated rates for Westland choppers.

Comments to NYT

  1. To say that Mancini reneged his word is not really right. It is Italy the country which has refused to send back the Marines for whose departure to Italy, Mancini has stood surety. He has promised their return and he could not keep his promise. It is not he who has refused to send the marines back.(Of course the time is not yet over as the last date is 22nd March) But since the Italian government has informed that it does intent to send the marines back to India that it is a closed thing as of now. The important question is can the Supreme Court of India restrict the movement of an accredited diplomat of another country who enjoys diplomatic immunity as per Vienna Convention ? The interesting thing is many former diplomats are of the opinion that the ambassador enjoys diplomatic immunity and cannot be restricted or punished but all the luminaries of law think otherwise and that the diplomat has lost his immunity once he submits himself to the Supreme Courts authority. But here also it is a tricky question. He only has applied for the release of the Marines for one month and has stood surety for their return to India. Can that act be construed as an act of submitting to the authority of Supreme Court. This question should actually should be decided by an International authority and not by the court of a country. It is something what can affect the whole diplomatic structure and behaviour. There is another interesting angle. Were the two marines prisoners at all? (contd)
  2. (contd) There is another interesting aspect. Supreme Court has in its order of 18th Jan. has quashed all the case filed by Kerala State stating that the Kerala Government has no authority to try the case and it should be done by a special court to be set up by Central Government. It actually amounts to the fact whatever Kerala government has been doing was illegal. It has no right to arrest the marines or keep them in custody. It is evident when Supreme Court instructed to shift the Marines immediately to Delhi. So they were to be charged for the crime afresh in a court to be set up under the guidance of the Supreme Court and it is not clear who will formally charge them. So they were not prisoners of any authority. They were only being detained. Unless officially charged and arrested but only detained unofficially and if such persons escapes, is it a crime? If anyone helps will it constitute a crime? Italy should approach the International Court of Justice at The Hague for redress. A state in India has arrested illegally its two officers from International waters, imprisoned them illegally and detained the ship for three months illegally causing much monetary loss. Let that court decide which will be a precedence for disputes between countries like this.