The Telegraph
Since 1st March, 1999
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Govt Atal’s or not, promise binding

New Delhi, Nov. 12: The “sovereign guarantee” to spare Abu Salem’s life, given by the Vajpayee ministry to Portugal three years ago, will be binding on the current government even if the don is convicted of multiple terrorist acts.

Salem is a prime accused in the 1993 Bombay blasts that killed 257 people, injured hundreds and destroyed property worth crores of rupees. In normal circumstances, if convicted, he could face the death penalty.

But legal experts say the “sovereign guarantee” has tied the courts’ hands. Though it was the National Democratic Alliance government that gave the guarantee to Lisbon in January 2003, the United Progressive Alliance ministry will have to stand by it.

“Such guarantees do not change with a change in government; it is binding on the country,” a senior Indian diplomat said.

Diplomats and legal experts say the “sovereign guarantee” is almost like a treaty or an agreement between two countries, and must be honoured by whichever political grouping or party is in power.

Portugal and other members of the European Union have abolished capital punishment from their constitutions. The EU’s statutes bar member countries from extraditing accused to countries whose laws provide for the death sentence.

The Portuguese supreme court began the proceedings of Salem’s extradition to India only after the Vajpayee ministry gave it the “sovereign guarantee” to spare Salem’s life whatever crime he is convicted of.

Portugal abolished the death penalty for ordinary crimes in 1867 and became totally abolitionist in 1976. Article 24 of the Portuguese constitution states: “Human life is inviolable. In no case shall the death penalty be applied.”

The Portuguese constitution also bans its government from extraditing accused to countries where the maximum punishment is higher than that in Portugal, which does not even have life imprisonment. Consequently, Delhi has assured Lisbon that Salem ' and, of course, Monica Bedi ' will not be given a prison term exceeding 25 years.

On October 3, 2003, Portugal ratified protocol 13 to the European convention on human rights and fundamental freedoms, banning the death penalty in all circumstances. The last execution in Portugal had taken place in 1849.

India gave the “sovereign guarantee” to Portugal under Article 72 (1) of the Constitution after the then attorney-general, Soli Sorabjee, approved the step.

Indian diplomats involved in the negotiations with Lisbon say that despite the guarantee, Portugal was at first hesitant to hand Salem over. The Portuguese government’s mind was made up only after a series of terrorist attacks in Europe ' those near home in Madrid and the 7/7 blasts in London.

“The fear that if it went soft on Salem it could be seen as a country harbouring terrorists perhaps made the Portuguese government agree to hand over Salem to India even though the two countries did not have an extradition treaty,” a foreign ministry official said.

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