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Thursday night saw an incensed debate over Israel’s attack on the Gaza strip with Israeli PM Shimon Peres defending his nation’s actions. The video for the same may be viewed below,

This open session involved UN Sec General Ban Ki Moon, Arab League Sec General Amr Moussa, Mr. Shimon Peres and Turkish PM Erdogan in what has been termed a very lively discussion. Peres came out strongly on Israel’s right to self defence and brought out the threats that the hamas posed to the jewish nation. He was however alone in his defence as the remaining leaders were vehement in their opposition to the offensive and Israel’s treatment of civilians during the attack of which Mr. Peres offered no apologies or explanation.

The Israeli president unleashed a harsh, unyielding rant that was full of strange statements, truncated arguments and meandering rhetoric. Clearly, he is feeling the effects of his age as his remarks bordered on the incoherent at times. But what was most evident was the choleric tone.

Here are a few of the stranger statements: he claimed that Israel could not accept the Saudi 2002 initiative because “there was a small problem of Iran” which wishes to rule the Middle East. Peres also claimed that Hamas did not win a democratic election. Rather Mahmoud Abbas DID win an election as president of the Palestinians. Peres also claimed there is no humanitarian crisis in Gaza; that Israel supplies all the water, fuel and electricity that Gaza needs; and that if there is a problem he would personally intervene to correct it.

Also, during the debate the Turkish PM was not given a chance to reply to Mr. Peres by the Moderator at which he got up and walked out of the room. News items here.

The Webcast of the whole session may be seen here.

The papers contain news items of effectiveness and lack of implementation of the smoking law. It seems that movie stars Ajay Devgan and Salman Khan were fined in Chandigarh for smoking in public places.

However, I would like readers to note that a “law” was not that only resolve to impose an anti-smoking ban around the country. Here I’m referring to a judgment written by Justices AR Lakshmanan and KN Kurup in K Ramakrishna v. State of Kerala, AIR 199 Ker 385.

It is a judgment that is brilliant at all levels. The case came up as a Public Interest Litigation asking the Court to give directions against smoking in public places keeping in mind the dangers of passive smoking. The Court went on a list the dangers of smoking and the harm caused to passive smokers by the exposure to Environmental Tobacco Smoke (ETS). After concluding that such an act is harmful and that something must be done to prevent it, the Court went on to discuss the relief asked for by the petitioner;

“22. Taking note of the alarming scenario as discussed above, the question then is, what is the relied that this Court can grant to the petitioners ? Can the Court direct the legislature to enact a law banning tobacco smoking?”

The Court stated an emphatic ‘no’ and said that it is not authorized to direct the legislature to enact a law but what it can do is to grant relief by way of a writ of mandamus to the Government and its officials including the police to enforce existing laws which is quite sufficient to safeguard the interests of the public against smoking.

So what are these existing laws that can be used to prevent public smoking ?

Sections 268 and 278 of the Indian Penal Code which cover the crime of public nuisance. According to these Sections;

“A person is guilty of public nuisance who does any act or is guilty of an illegal omission which causes common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.”

Thus then stating that smoking in public is a “public nuisance” in terms of it being a common interest and causing harm to every one. Further that according to Section 278 a fine of Rs. 500/- may be prescribed for the violation of this offence.

But how then may this provision be enforced to prevent public smoking ?

It must be noted that Section 278 of the IPC is a non-cognizable offence. Since the offence alleged is non-cognizable, the police has no authority to arrest the offender without an order from a magistrate or without a warrant.

The Court said that such an order to prevent public smoking can be given by the Magistrate under Section 133 of the Code of Criminal Procedure stating that a Magistrate can give a conditional order for the removal of nuisance from any public place. Furthermore, a disobedience of this order may extend to a fine of Rs 200 or simple imprisonment for a period of one month or both.

Quoting Krishna Iyer J. in Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622, the bench stated;

“Therefore, when a Magistrate has, before him all the information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such nuisance should be removed from any public place which may be lawfully used by the public, he shall act.”

Thus, by showing that there is conclusive evidence of public nuisance being caused by smoking in public places, an order by a Magistrate is also enough to prevent smoking rather than enacting a law to do the same.

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Another reason why this judgment is so good is that it has not made those sudden statements that are not substantiated by fact, law or reason. Every statement is adequately supported by law and fact and the reasoning given by the judges cannot be put to question.

I was deeply moved to say the least after reading this article posted below. The Author is the editor of the Srilankan Sunday Leader and was shot dead. This article was published in the Guardian three days after his death.

This blog has been a believer in free speech and this article helps us in spreading that message.

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I HOPE MY MURDER WILL NOT BE SEEN AS A DEFEAT OF FREEDOM BUT AN INSPIRATION

Lasantha Wickrematunge

No other profession calls on its practitioners to lay down their lives for their art save the armed forces – and, in Sri Lanka, journalism. In the course of the last few years, the independent media have increasingly come under attack. Electronic and print institutions have been burned, bombed, sealed and coerced. Countless journalists have been harassed, threatened and killed. It has been my honour to belong to all those categories, and now especially the last.

I have been in the business of journalism a good long time. Indeed, 2009 will be the Sunday Leader’s 15th year. Many things have changed in Sri Lanka during that time, and it does not need me to tell you that the greater part of that change has been for the worse. We find ourselves in the midst of a civil war ruthlessly prosecuted by protagonists whose bloodlust knows no bounds. Terror, whether perpetrated by terrorists or the state, has become the order of the day. Indeed, murder has become the primary tool whereby the state seeks to control the organs of liberty. Today it is the journalists, tomorrow it will be the judges. For neither group have the risks ever been higher or the stakes lower.

Why then do we do it? I often wonder that. After all, I too am a husband, and the father of three wonderful children. I too have responsibilities and obligations that transcend my profession, be it the law or journalism. Is it worth the risk? Many people tell me it is not. Friends tell me to revert to the bar, and goodness knows it offers a better and safer livelihood.

Others, including political leaders on both sides, have at various times sought to induce me to take to politics, going so far as to offer me ministries of my choice. Diplomats, recognising the risk journalists face in Sri Lanka, have offered me safe passage and the right of residence in their countries.

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EJIL Talk reports of the decision of the European Court of Justice in Kadi as one destined to become a landmark in the annals of international law. While the blog compares this decision to one of the US Supreme Court in Medellin, I propose to give another view point of this decision in terms of having a standard of judicial review in International Law.

Pursuant to the UN Security Council resolutions on terrorism and funding of terrorist groups, the Council of the EU adopted a regulation ordering the freezing of the funds and other assets of the persons and entities appearing in a list annexed to the regulation. In this list were Mr. Kadi, a national of Saudi Arabia, and Al Barakaat, an organization established in Sweden, whose assets were frozen as being allegedly associated with Al-Qaeda. These two ‘persons’ challenged the regulation as being violative of their fundamental rights and the European Court of Justice was called upon to decide the question in appeal.

What the appellants were essentially arguing for was a standard of judicial review for regulations framed under International law provisions. Before this, the only reminiscences of judicial review existed in Article 53 of the Vienna Convention on the Law of Treaties stating that a treaty may be violated/breached if it were against a jus cogens norm. Even this provision did not declare a treaty invalid.

It may be argued that these regulations did not have the status of international law and that EU Council regulations should have the status of domestic law. If this be the case, then my argument and inference fails. However, I am inclined to think otherwise. The Court stated that ;

“the Court ¬†concludes that, in the light of the actual circumstances surrounding the inclusion of the appellants’ names in the list of persons and entities whose funds are to be frozen, it must be held that the rights of the defence, in particular the right to be heard, and the right to effective judicial review of those rights, were patently not respected.”

And then asked the EU Council to remedy such infirmities in the Regulation.

Noted points made by the Court include;

“the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement”

And finally,

“any judgment by the Community judicature deciding that a Community measure intended to give effect to … a [UNSC] resolution is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law.”

In as much as the Court has tried to be rational and not contravene the UN Resolution per se, this decision has a profound impact on international law and I would say that it is a welcome change. More often that not, we have seen International law taking sides and being hypocritical (as in Israel) and in that context blatantly violating due process. This judgment should do some good then.

EJIL Talk says that they would be putting up a detailed analysis of this case in a while. The opinions in this post come from an amateur like myself and it would be interesting what that post would have to say.

Arun and I had the opportunity to have a one-on-one interview with Mr. JM Lyngdoh (Former Election Commissioner) after his lecture. Below is the transcript of the interview. The issues covered in this interview were;

– Private Funding of Elections

– Student Elections

– The 49-O debate

– Voting solutions and accommodations for the Middle Class

– Elections in Chattisgarh

The podcast of the interview may be downloaded here.

Arun : My first question is with regard to the issue of private funding that you raised. Sir you had drawn a comparison with the United States perspective where in there would be private funding in election campaigns. Can you think of any particular evil of introducing it in India ?

Mr. Lyngdoh : Let me make it quite clear. It is not private funding that is the greatest problem in the tracking of funding in India. The main source of funding in election campaigns is government funding and the stemming of it should be the main focus. This source of funding is highly objectionable; whether from a literal point of view or from a normal point of view.

Arun : Would you then perhaps encourage corporate entities or industrialists in funding and having their say in financing election campaigns ?

Mr. Lyngdoh : Believe me, the corporate sector is even more unreliable than the government when it comes to election campaigns. I don’t want them to be a part of it.

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