India Left Marooned By Italy

How could India and our additional solicitor general be unaware that the Italian marines could cast their vote by mail?

Last year, two Italian marines shot dead unarmed fishermen in Kerala waters. The two marines were arrested, and were then treated like guests of state – being put up in a guesthouse and sent home to Italy on Christmas vacation and also to cast their vote. The second trip was one which saw no return. The marines, despite the promise of the Italian ambassador, decided to stay put in Rome. India as a result now has to eat humble pie.

That India is standing holding the bathwater is a little surprising, given that this is not the first time that one country has cocked such a diplomatic snook at another.

To the present generation, the name Rainbow Warrior may not mean much. But to those of our generation who were sympathetic to the Green Movement in the 80s, it was a landmark event. Rainbow Warrior was the flagship of the Greenpeace Movement docked at the Auckland Harbour in New Zealand. Greenpeace was planning to disrupt the nuclear tests the French government was planning to conduct in the Pacific. For some expedient reasons, the Western governments, specially the French, had always preferred to conduct their nuclear operations away from their shores and this was one of those instances. On July 10, 1985 there were two blasts which led to the sinking of the boat. A Greenpeace photographer, Fernando Perreira, all of 35 years old was killed.

Two individuals were arrested and the then Prime Minister of New Zealand, David Lange went public with his accusations. He blamed the French government for having engineered this atrocity. There were others who were arrested elsewhere notably in Australia but had to be released as forensic tests could not be obtained in time.

There was very soon a volte face and the French PM at the time, Laurent Fabius, held a press conference to announce that the French government was indeed involved.  Fabius declared that it would compensate Perreira’s family and gave a sovereign assurance that the two arrested in this connection would face trial in New Zealand.

However this was a cruel trick. The agents responsible for the espionage pleaded guilty to manslaughter and were given a 10 year sentence. The French government negotiated with the Kiwis that the arrested agents would spend time on a Pacific Island instead of a prison and would serve out their full term. Even this guarantee was violated – the agents were secretly whisked back to France and feted as heroes. I vividly recall the welcome accorded to agent Dominique Prieur when she landed on French soil.

The notable feature was that no Western government criticised the French. Not even a mild rebuke.

Why am I recalling all this? There is a sense of déjà vu when I note the newspaper headlines about the Italian marines who were facing trial in Kerala. The Italian government hoodwinked the Supreme Court of India to allow them to vote in the elections – when postal ballot services already exist in Italy as this particular link to their own government website establishes.

http://www.interno.gov.it/mininterno/export/sites/default/en/sezioni/sala_stampa/notizie/news/2013_02_20_general_elections.html

Reproduced here is the relevant section:

There are three categories of Italians who can vote for the Italian elections even if they reside abroad only temporarily: armed forces or police personnel engaged in international missions; civil servants of public administrations who live outside Italy for work reasons and their family members who live with them, but only if the duration of their stay abroad is over six months; university professors and researchers working at universities or research institutes abroad for at least six months, but only if on the date of the call of the meetings they had been living abroad for at least three months.

Citizens entitled to vote by mail: military and police personnel and civil servants must submit an application to their headquarters or to the Administration they belong to, within 35 days of the election date in Italy. In the application they must state: their name, surname (for women also their married surname), the date and place of birth, the sex, the address of residence and domicile abroad and the municipality where they are enrolled in the electoral lists. As to family members, in their application they must also attach a declaration in lieu of an affidavit stating the cohabiting status with the person of the above-mentioned categories.

The headquarters or the Administration will then send to the Consular office the names of those who have requested to vote abroad. Professors and researchers must submit an application following the same procedure of the military personnel, but such an application must be sent directly to their Consulate of residence.

The Consulate will then transmit the list of the names of those who have opted for voting abroad to the municipalities concerned, waiting for municipality’s approval, i.e. a declaration stating there are no obstacles. Subsequently, the district’s electoral committee will cancel the voters who have submitted the application from the lists of its sections in Italy.

The application for voting by mail can also be revoked by means of a declaration signed and dated by the person concerned. Such a declaration must be received by the Consular office within 23 days of the election date, i.e. no later than February 1st, 2013.

In the General Elections 2013, all the Italians temporarily residing abroad – entitled to exercise the right to vote by mail – shall vote for the district of the Chamber of Deputies and the Senate of the Republic to which the municipality of Rome belong, that is for Lazio 1 district (Chamber of Deputies) and for Lazio district (Senate of the Republic).

It is abundantly clear here that the Marines fell into the category of armed force personnel temporarily residing abroad – and they had been in India for over six months. All they had to do was to make an application 35 days in advance.

The Italian government solemnly assured the apex court by way of a sworn deposition that the Marines would return and face trial. They had been unsuccessful in convincing the apex court that the event took place in international waters – the so-called contiguous zone – and that Indian courts did not have any jurisdiction over these waters.

This is a clear violation of sovereign guarantee, irrespective of the merits of the actual case. The Italians had spared no effort to avoid scrutiny by the Indian legal system, by pleading that this was an act of self-defense and that the fisherman had fired the first shots. This contention was rendered unsustainable when the Coast Guards’ report was made public – there were no bullet marks on the hull or any other part of the boat. They were then able to negotiate with the court that instead of the prison, the Marines would stay in a guest house – neither the Kerala nor the Union government objected. Soon after, they pleaded that they be allowed to spend time with their families during Christmas. The Union government did not object and the High Court permitted them this extraordinary indulgence.

They returned and then lodged an application that they would like to visit Italy to cast their votes in the general election. There are a few points worth mentioning. First, the duration of stay requested was 20 days. Quite a long period to cast a vote. Second, it was completely ignored that Italy has a provision for postal ballots. I am intrigued to note what the Additional Solicitor General who represented the Union government in the disposal of this application had to say. His contention was that he was “unsure” whether the provision for postal ballots existed in the Italian elections.  Clearly, the apex court was not properly advised.

I must allude to a particular observation made by Justice Mohammad Currimbhai Chhagla, a former Chief Justice of the Bombay High Court, in his autobiography Roses in December. He makes a strong case when he states that the job of a judge entails “listening to the counsel” and not browsing or reading which is – according to him – the exclusive domain of the counsels. The judge must listen to what the counsels have to say and then infer.

The judges were given incomplete advice and we should hold the counsel responsible for this lapse. He owes the entire country an explanation for this major dereliction of duty on his part.

The damage has been done. What amazed me was that the media has not brought up the French precedent in their discourse on this incident. Of course, there are obvious differences. First, this was not an Italian government-sponsored action which led to the killing as was the case in the Rainbow Warrior sinking. Second, the jurisdiction of the New Zealand court was not disputed in the earlier incident – the espionage had taken place in Kiwi waters. Third, the French were able to do what they set out to because they fully realised that New Zealand was in no position to retaliate and that Western governments would never take a stand against them.

And that is exactly what happened. New Zealand was left seething in anger, twiddling its thumb.

We are not in that position. Italy has gone through an economic crisis and India is in a position to read them the riot act. We can tell the Italians to behave and make sure they do.

The Supreme Court has been compromised by this act of the Italians – it is a clear case of contempt. The Italians would most likely invoke the principle of diplomatic immunity – and my understanding of the international law leads me to believe that they would probably be correct in doing so. But at the very least, we should expel the Italian ambassador to India, make sure that he gets labelled in the international diplomatic community as the cowboy he has proven himself to be, recall our own diplomats and seek legal redressal through the World Court. Additionally, we should downgrade the Italian representation here as their government has given ample evidence that it would not deter from acting in a manner reminiscent of a rogue state – contrary to their hypocritical pleas of solid commitment to justice.

 

Image By: Abhishek Verma

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