Friday, March 22, 2013

Italian marines return – Jaitley and BJP forced to eat crow….

A few days back when the Italian government stated that their marines would not return – in a blatant disregard of their sovereign commitments made to India’s Supreme Court – Arun Jaitley, leader of the BJP, had stated mockingly that India’s clout in international affairs had been drastically reduced. He was of course mocking the Congress, forgetting that the coverage of such a statement by the international media would harm India’s standing in the world. Well, today, Arun Jaitley has no option but to eat crow. He wont apologize, because politicians seldom do that.

Newspaper reports indicate that the marines have returned precisely because of India’s clout; not because they had a turn of heart. They are still disputing India’s territorial jurisdiction in the case, and even their counsel, the illustrious Harish Salve, has stated that they had a good case. After all, the incident happened outside of India’s terrirtorial waters, and hence international laws could be made to apply. But that’s not the issue of today’s post. The issue is whether India managed to use its clout or not; and whether Jaitley was right in mocking the government.

The clout India used was perhaps most related to business, something that should give us a sense of pride. It re-affirms India’s standing in the world of business. The Italian corporate sector apparently weighed in on the government, asking it to resolve the issue diplomatically; and not scoot from a country as important as India. Obviously the Italians were concerned about their business interests, especially given the condition of their economy. If this is not clout, then what is?

The other clout India must have used – and not everything emerges in the public domain – is its relationship with other countries in the EU, as well as the US. There was in fact a small mention in between that the EU wanted the matter to be resolved diplomatically even though it also thought that India didn’t have jurisdiction. Surely, India used its diplomatic muscle.

There is a new controversy that a few grumpy people are trying to create about what “assurances” the Indian government has given to the Italians. They claim India has surrendered to the Italians and conceded many terms that would not normally have been done. Such people are unstoppable. They will never let go. They will attack no matter what! So lets look at their new charge.

Apparently, India has promised to Italy that the death penalty would not be given to the two marines. The Indian government says that it has only clarified, that in its wisdom (meaning its not really its decision, but the courts’), this case would not attract the death penalty. Just for the records, more than 30,000 murders take place in India every year (yes….can you imagine this shocking number???), but the number of convicts given the death penalty is usually in single digits. So surely the marines are undeserving of the death sentence. That’s what Khurshid clarified.

However, here’s the other thing that no media outlet has commented on yet (shows how shoddy our media is). A cursory search of the net shows that India has no extradition treaty with Italy. It just an extradition “arrangement”. But had it had an extradition treaty with it, just like it has one with the UK, the treaty would have forced India to drop the death charges. Article 16 of the treaty would have come into play. Article 16 states that “If under the law of the requesting state – India, since it is requesting Italy to extradite the two marines – the person sought is liable to the death penalty for the offence for which his extradition is requested, but the law of the requested state – Italy – does not provide for the death penalty in a similar case, the extradition may be refused unless the requesting state – India – gives such assurance as the requested state – Italy – considers sufficient that the death penalty wont be carried out”. India would not have been allowed to award the death penalty because Italy doesn’t allow capital punishment in its country. In other words, had this incident concerned a person from the UK (or US/Canada/HongKong/ Netherlands/ Russia/ Switzerland/UAE/Spain/Turkey/Germany/ France/Poland/Korea/South Africa – a total of 28 countries with whom India has an extradition treaty), India would have been forced by law to give the assurance of no capital punishment. Surely a savvy lawyer like Jaitley knows that! This latest controversy is purely political!

The other thing we must remember is that all extradition treaties (or arrangements) are reciprocal in nature. If an Indian is arrested in Italy – and there are many who are – the same laws of extradition would apply to them as well. Italy would be prevented from giving an Indian convict a sentence that would be not permitted under Indian law. An extradition treaty demonstrates mutual respect for each other’s law, and allows citizens of the two countries to be tried in accordance with the laws of their countries. An extradition treaty allows – in fact that is the focus of the treaty – for the citizens of a country to be sent back to that country for trial and serving of sentence. What’s the big deal with the assurances India has given to Italy????

And what about all the mocking the BJP leaders did of Sonia Gandhi simply because she was born in that country? Does every issue that concerns Italy have to be seen in the context of Sonia’s Italian origins? Sonia was forced to issue an unnecessary (because it was so obvious) statement warning Italy that India would not tolerate such intransigence.   
So now Jaitley must eat his words. But will he? Has he got the statesmanship required to accept that he bluntered? That his enthusiasm to put the government in the dock got the better of him? Will he acknowledge that he perhaps spoke too soon?  And embarrassed the country, and not only himself? If only our politicians could be a little more circumspect, they would do themselves and India a whole lot of good.

The real truth is that India has shown Italy and the world what heft it has. The government has shown the BJP what heft it has. The SC’s dignity has been protected. The rule of law has been implemented. An errant has been brought to toe the line. Now its India’s turn to be fair and try the case without any pre-meditation. If international laws – have to apply, then so be it. Politics, especially jingoistic politics, has no role in either the enforcement of law, or international diplomacy….

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