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Saionton Basu
GUEST COLUMNIST
Saionton Basu

Saionton Basu is Partner & Co-Head India Group, Penningtons Solicitors LLP, London and Global Chair, Multilaw India Practice Group

Time to proceed against Mancini in person

Arguments about diplomatic immunity for Mancini’s actions are misplaced.

Italian ambassador Daniele Mancini arrives at the Ministry of External Affairs in New Delhi on Tuesday. PTI

ow that the Italian government has refused to comply with the Supreme Court's order after Ambassador Daniele Mancini having declared on oath to ensure the return of the Italian marines to stand trial in India, it is important to find a concrete and real solution to this gridlock. At hand are two issues in that order: (i) The inalienable human rights of the deceased fishermen allegedly shot dead by the Italian marines without grave provocation and their families who deserve an effective judicial remedy as a consequence; and (ii) the rule of law in India of which the Supreme Court is the custodian, both of which form part of the basic structure doctrine, meaning they cannot be derogated from by executive or judicial action. Accordingly, any response, judicial or executive must necessarily ensure that these ends are upheld.

In light of this, it is appropriate to scrutinise the Italian avowal leading us to this point. The statement released by the Farnesina (Italian Ministry of Foreign Affairs) on 11 March 2013 does two things: (i) it unilaterally outlines its understanding of the legal framework governing the incident aboard the Enrica Lexie, based on provisions of the United Nations Convention of the Law of the Sea (UNCLOS); and (ii) suggests that the decision to subvert the course of judicial proceedings in India by not sending back the two marines Massimilano Latorre and Salvatore Girone is somehow based on the Indian government's "formal acknowledgement of an international dispute between the two States" and "on which the two Foreign Ministers intend to meet".

Since the former assertion by its own admission appears to be conjointly drafted by the Italian "Ministries of Defence and Justice in coordination with the Office of the Prime Minister," it is perhaps plausible that proper legal input could not be prearranged to ensure a complete reading of the UNCLOS. Students in the halls of residence at the National Law School in Bangalore steeped in the tradition of participating at international moot court competitions can perhaps readily point out the three primary pre-requisites for bringing a bilateral dispute before an international dispute resolution forum: (i) consent of both parties to the dispute; (ii) exhaustion of local remedies; and (iii) both parties acting in good faith.

The diplomatic immunity measures enshrined in the Vienna Convention on Diplomatic Relations 1961 will reveal that it is not intended to afford protection to diplomats who consciously act to subvert the rule of law of their host country. Pursuing that line of argument will be tantamount to allowing safe passage to a diplomat engaged in espionage against the host country.

Let us deal with each of these matters in turn. Firstly, the publicly available record of the case does not seem to suggest such consent to be forthcoming from India, notwithstanding the tenuous claims to the contrary in the Farnesina statement. Secondly, a complete reading of the UNCLOS would have revealed that dispute resolution mechanisms envisioned therein could only be marshalled once all local remedies in India had been exhausted — clearly with a murder trial pending that requirement is not met. Lastly, on current form, one should refrain from embarrassing the new Italian government by delving any further into whether their acts of misleading the Supreme Court were indeed in good faith.

That brings us to the second assertion in the Farnesina statement. Unless there are aspects to this case which are not publicly known or known only at the level of the "two Foreign Ministers" as alluded to in that statement, this is of little consequence in the overall framework of this matter. And in any case, any such diplomatic missive which deviates from the issues of the fishermen, their families and the rule of law in India would be constitutionally untenable.

Having now examined the Farnesina statement, it requires to be probed as to what measures can be embarked on by the Supreme Court that meet the benchmarks of being concrete and real. Accordingly, there is little point in wasting valuable newsprint on options pertaining to extradition, Interpol alerts, International Criminal Court approaches and the like. The Supreme Court ought to invoke its extra-ordinary contempt jurisdiction and also direct framing of criminal charges under the Indian Penal Code pertaining to making false declarations and screening offenders from the process of the law against the two Italian marines Massimilano Latorre, Salvatore Girone and Ambassador Daniele Mancini. Since Mancini's affidavit made before the Supreme Court in no small measure contributed to facilitating the flight of the Italian marines, there is no option but to proceed against him in person. Arguments centred around diplomatic immunity for Mancini's actions are both misplaced and mischievous. The diplomatic immunity measures enshrined in the Vienna Convention on Diplomatic Relations 1961 will reveal that it is not intended to afford protection to diplomats who consciously act to subvert the rule of law of their host country. Pursuing that line of argument will be tantamount to allowing safe passage to a diplomat engaged in espionage against the host country. Further, given the fact that inalienable human rights of the deceased fishermen and their families have been breached by the denial of an effective judicial remedy on account of the Italian marines having been allowed to bolt from the course of justice, there is sufficient basis in international law that outlines that when diplomatic immunity is weighed against competing and compelling human rights claims, the latter must prevail. Also, diplomatic overtures that do not start from a position of relative strength will always end up compromising India's position and our constitutional guarantees. Accordingly, if any diplomacy were to take place on this issue, it should be after and not before the Supreme Court has taken the proceedings to a logical conclusion.

I have also heard on television debates that the Indian government may expel Ambassador Mancini. If by the time this column appears in print, he has been expelled, it would be a sure-fire burial of the murder trial against the Italian marines, since in that event there would be no one left to proceed against in whatsoever limited manner. Therefore, proceeding against Mancini, whilst politically prickly and diplomatically difficult, is a constitutional imperative which overrides international relations or diplomatic considerations.

There is no doubt that such a move by the Supreme Court will lead to escalation of tensions between the two countries, however, it will also set right the perceptions in the minds of foreign investors and other onlookers that the rule of law is malleable in India. Furthermore, this missive by the Supreme Court is bound to liberate India from the image of being an indulgent state, unable to prosecute international reprobates. Also, since the contempt law requires such proceedings to be commenced within one year of the alleged breach, it is a historic opportunity for the Supreme Court to set right several wrongs and in the process deliver real justice to the victims.

It needs to be reiterated that the Constitution of India mandates this approach and it is no longer just an option — any other approach, including diplomacy, before the Supreme Court has had its say, risks being constitutionally untenable. Finally, when all is said and done and the dust settles on the outcome or the file as the case may be, one must reflect on former President K.R. Narayanan's words of whether the Constitution has failed us or we have failed the Constitution.

 
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