Tuesday, 19 March 2013

How stupid are Indian Lawyers?

Further to my last- the question troubling me is how fucking stupid are Indian lawyers actually? Stupid enough to be misled by the specious arguments of Dr. Subramaniam Swamy it would appear.
Take a gander at this-
'Former attorney-general Soli Sorabjee told The Telegraph that the Italian ambassador did not enjoy any diplomatic immunity from contempt proceedings.
“If you read the Vienna Convention, there is immunity from criminal, civil and administrative actions. But the diplomat is facing contempt of court proceedings; it is not criminal proceedings. There is no immunity from contempt proceedings. Even if there is immunity, the Italian ambassador, by approaching the court, has waived the immunity,” Sorabjee said.
Is Sorabjee right? Are contempt proceedings neither criminal, civil nor administrative but some totally novel species of beast which the drafters of the Vienna Convention totally forgot to stipulate against? 
What does Indian statute law have to say in this matter?
The Contempt of Courts Act of 1971, divides Contempt into two types- Civil and Criminal. In other words, the offence of Contempt is not something different in kind from Civil or Criminal actions but can be divided into precisely those two categories. Thus, contra Sorabjee, there definitely is immunity from contempt proceedings for the Italian Ambassador. What about Sorabjee's claim that he waived his immunity? The answer is, according to the Geneva Convention, he did not have the right or the power to waive his immunity against any sanction of the Court. Only the Minister of Foreign Affairs of his Country had that power and that right and even then the waiver had to be given explicitly- something which has not happened.
Conclusion- Sorabje is talking through his asshole- something in which he has had much practice because he is a former Attorney General.
Under what Statute is the Supreme Court authorizing itself to impose a curb on the Italian Ambassador's freedom of Movement?
Presumably, it is Section 2(b) of the Contempt of Courts Act of 1971, where civil contempt has been defined as wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
In this connection, Rajeev Dhawan, 'an expert on international law', said: “There is some diplomatic immunity for the State and not the diplomat. Where the diplomat has rendered himself to the jurisdiction of the court with the consent of his State, we must assume that he has submitted himself to its jurisdiction.
“No doubt, the Vienna Convention says that the giving up of immunity must be through an express act. However, we can treat this act of invoking the court’s jurisdiction as an express act by the diplomat and the State to waive the immunity.”

Again this is simply cock-eyed. States don't have diplomatic immunity, they have Sovereign immunity. Diplomats have diplomatic immunity. The law says no diplomat can give up his immunity w.r.t any civil or criminal or administrative proceeding against his body BY ANY ACTION OF HIS OWN. An explicit waiver from the Foreign Minister of his Home Country is required.
Think about this for a second and it will start making sense. Suppose, like a recent Burmese Ambassador to Sri Lanka, our Envoy to Islamabad takes it into her head to beat her spouse to death. She knows, if she returns to India, she will have to do Jail time coz Soniaji is very strict about that sort of thing so as to encourage Rahul Baba to take the plunge and just get married already. So she says to the Pakistanis 'look, I waive my immunity. You try me here and keep me in a nice ISI bungalow- with a good supply of Hindu males to beat to death- and I will tell you all India's secrets.' Why can't this happen? Well, the Geneva Convention permits India to say- She has no right to waive her immunity. Only we can do that. You bloody well declare her persona non grata and expel her across the border otherwise we will let your Ambassador in New Delhi waive her diplomatic immunity for sodomizing Subramaniyam Swamy- which is contempt of Court coz the Hon'ble Bench thinks Sun shines out of his arse dontchaknow.'
You see, Diplomatic immunity isn't about Diplomats having impunity- it's about their being subject to the discipline of their home country. It's like when your wife or g.f. sends you over for a spot of Guy Time watching the Test Match with me. My g.f. isn't allowed to beat you if get tiddly on the Babycham and suggest I grow out my moustache. Under Behenji Geneva Convention, she can only communicate news of your horrible crime to your Mem Sahib who will inflict proper punishment on you once you get home.

Is the Italian Ambassador guilty of Contempt of Court?
Let us take up another question. Suppose, unknown to us all, the Foreign Minister of Italy got drunk and gave an explicit waiver to Sonia Aunty such that his Head of Mission in India's diplomatic immunity has been explicitly waived. What? It could happen! Italians are all terrible drunkards. Probably he was weeping into his Chianti and saying 'Sonia, bella, please come and be our Prime Minister and save us from Berlusconi.' Soniaji immediately said 'First waive Mancini's diplomatic immunity, then I'll think about it.'
 "Done!' says the Italian Foreign Minister, 'But please be telling Rahul Baba to shave. Chee Chee, he is looking like low class rowdy, I say.'
 "Khabardar' shouted Soniaji, "mere bete ki dhadhi Laqa ki jaisi hogi! Jaa, jaa- tu manhoos- teri nazar na lagne doonga mere laadle pe! Chashme buddoor.'
Anyway, even if all this happened, the Italian Ambassador still would not be guilty of Contempt of Court. Why? He gave his undertaking BEFORE the Court said 'Govt. is dragging its feet, hence Italian Marines are denied speedy trial'.
The moment the Supreme Court uttered this statement, the Ambassador's undertaking was null and void because it was not in his power, nor that of his Govt, to force the Marines back to India. Why? European Human Rights Law takes precedence over Italian Law. The Marines, by the admission of the Indian Supreme Court, were being denied the Human Right to a fair and reasonably speedy trial because the Special  Court required to adjudicate the matter did not then, nor does it now exist nor shows any sign of coming into being any time soon. 

What the Italians did wrong
Employ stupid, self-serving, Indian lawyers.  I recall many years ago, when I was married to an Italian and we were living in Delhi and when some small marital spat occurred, the Italian Embassy's Indian legal advisor  told my  then wife to prosecute my parents under some antiquated Victorian Law for restoration of conjugal rights or something of that sort. It's true, I was young, but I was not an imbecile or a minor or some other such person of diminished capacity. It was not in my parents power to force me to have sex with that woman. Yet this is what the Indian Lawyer advising those idiots at the Italian Embassy had her petition the Court to accomplish.
 I was all like 'babe, you know you got unrestricted access to my junk.' And she was all like 'yeah, well, I want like Kama Sutra shit. And the right to shove my finger up your ass to hurry things along.'  And I was going- No way you take my anal cherry bitch- I'm saving that for Manmohan Singh- I'll see you in Court! Mummy, help!, she's touching my no-no place!' 
Anyway, that's why I decided to quit India and return to London. At least we gotta European Court of  Human Rights here. Aint no fucking Supreme Court Bench can tell me I'm in Contempt unless I lose my anal cherry to some random I-talian with wicked finger-nails.
Mind it kindly.
Nuff said.

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