News November 27, 2020 Find out more Follow the news on Equatorial Guinea September 4, 2019 Two Equatorial Guinean journalists held for the past eight days The 2020 pandemic has challenged press freedom in Africa But RSF has been told that the reason for their arrest may have been their interview with an investigating judge in Bata who criticized his recent suspension by the supreme court’s president. Reporters Without Borders (RSF) calls for the release of two Equatorial Guinean TV journalists who were arrested eight days ago in Bata – the country’s largest city and commercial capital – shortly after interviewing a recently-fired judge. Reports Asonga TV journalists Melanio Nkogo and Ruben Bacale. News Not even coronavirus escapes Equatorial Guinea’s extreme censorship “These arrests confirm the vulnerability of Equatorial Guinean journalists, who are exposed to the worst forms of intimidation as soon as they begin to stray from the editorial line demanded by the regime or by those close to it. We call on the authorities to release these journalists at once.” RSF_en June 15, 2020 Find out more May 18, 2020 Find out more Melanio Nkogo and Ruben Bacale, who work for Asonga TV, Equatorial Guinea’s only privately-owned TV channel, have been held at police headquarters in Bata since 27 August. Neither the police nor any other officials have so far given any reason for their arrest. Organisation Equatorial GuineaAfrica Protecting journalistsMedia independence ImprisonedPredators Equatorial GuineaAfrica Protecting journalistsMedia independence ImprisonedPredators Coronavirus “information heroes” – journalism that saves lives Although Asonga TV is Equatorial Guinea’s only commercial TV channel, it is closely controlled by the regime because it is owned by Vice-President Teodorín Nguema Obiang, who is the son of President Teodoro Obiang Nguema, the country’s ruler for the past 40 years. Help by sharing this information News “These two journalists have been in police custody for much longer than the legally permitted period and there are no grounds for holding them because they were just doing their job,” said Arnaud Froger, the head of RSF’s Africa desk. Receive email alerts Equatorial Guinea is ranked 165th out of 180 countries in RSF’s 2019 World Press Freedom Index. to go further Ramón Nse Ebalé, a cartoonist known for criticizing the president in his cartoons, spent nearly six months in detention last year on trumped-up charges of forgery and money laundering that were eventually dropped.
News UpdatesOn Munnawar Faruqui, And Why Bail Not Jail Remains A Myth Abhinav Sekhri28 Jan 2021 5:20 AMShare This – xMunnawar Faruqui was arrested by the Madhya Pradesh police for allegedly making obscene jokes about deities and politicians, in a case registered against him and some others which invoked offences such as Section 295-A IPC that are cognizable and non-bailable (more on that later). After some weeks, on 28th January the High Court of Madhya Pradesh dismissed what was a third bail application…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginMunnawar Faruqui was arrested by the Madhya Pradesh police for allegedly making obscene jokes about deities and politicians, in a case registered against him and some others which invoked offences such as Section 295-A IPC that are cognizable and non-bailable (more on that later). After some weeks, on 28th January the High Court of Madhya Pradesh dismissed what was a third bail application filed by Mr. Faruqui; the previous two having been filed before a Magistrate’s court and that of an Additional Sessions Judge. As a result, he continues to remain in prison, and the law meekly requests all officials and society at large, that Mr. Faruqui must be presumed innocent until his guilt is established by way of trial.There has been extensive engagement with the plight of this individual as it arguably shows a unique level of high-handedness by officialdom if the version of events publicly reported is to be believed. The concern shown by the High Court for his personal liberty also attracted a scathing attack in the Hindu by Gautam Bhatia, comparing this individual’s liberty with another where such concern was loftily expressed by the Supreme Court. All these engagements, in focusing on specific instances, have not trained their attention to the frankly rotten legal regime that judges are presiding over on bail matters. This small article tries to add this dimension to the ongoing conversation. Understanding the Twin Pillars of Bail LawThe foundations of bail law in India rest on twin pillars: First, the classification of offences, and second, the exercise of judicial discretion. Both are considered imperative to the way our system works and I want to try and convince you that, in fact, both are contributing substantially to the arbitrariness and unfairness that is rampant in the system today. ClassificationThe two most important classifications accompanying any offence in India are (i) whether it is cognizable or not, and (ii) whether it is bailable or non-bailable: If cognizable, then police are empowered to arrest without warrant and investigate without any magistrates’ orders; if non-bailable, then an arrested person has no right to bail, and must file applications seeking bail before a judge [longer take here]. Here, our main focus is the second classification about bail. This classification of offences is a feature imported to India by the 1861 Criminal Procedure Code. It is seen as reflecting the different regimes prevailing under Common Law for bail at the time in respect of misdemeanours and felonies, where felonies were seen as more serious crimes where releasing persons on bail was left to judicial discretion. There is an obvious issue with this classification, and that is its antiquity. The system has not been revised since at least the year 1898 and this has meant that even the purported logic of offence-seriousness does not shine through the entire setup. This was something which the Supreme Court commented upon in passing in 1958. Re-classifying offences to better reflect the concerns of today’s day and age might yield a different scheme which does not deny a right of bail as widely as is done currently. One could argue that the Supreme Court sponsored such an exercise very recently in Arnesh Kumar as well. If this exercise was done with a keen eye on prisons data, it could also help reduce the tremendous pressure that is placed upon prisons, where nearly 10% of all undertrial prisoners are persons accused of simple theft. In addition to which is the issue of rendering these classification justiciable so as to recover some measure of checks and balances in this exercise of offence-classification which is currently totally under executive control. As helpful as that might prove in the short run, I would argue that any such reclassification would only be treating the symptoms of the malaise, which is the idea of allowing questions of personal liberty to turn on the basis of a government sponsored classification. A brief background will help explain. Let us assume a person lost some property and went to the police station. Now, in most cases, what this person will bring to the police is a complaint, a narrative, a story about what harm was caused. It is police who transform this narrative into an offence known to law, register a formal accusation in the form of a First Information Report, and start investigation. Offences usually consist of a manifest conduct coupled with a specific state of mind. This renders the transformation of a narrative of criminality into a formal offence peculiar: one kind of manifest conduct (taking property) can amount to at least three different offences under the Indian Penal Code alone depending upon the kind of unseen mental element being alleged. Labelling offences differently depending on the kind of conduct and prescribing different punishments is, in theory, laudable, as it helps to achieve greater nuance and fairness in the administration of criminal justice. But here’s the catch: the same genus of conduct is not treated in the same way in respect of the bailable vs. non-bailable classification. Instead, the approach focuses on the species of crime, because of which our hypothetical narrative can lead to different outcomes for bail. This creates perverse incentives to invoke a non-bailable offence and deny a right to bail, as this writer can attest to from experience. It also carries the possibility of genuine confusion, as after all, how can police be certain about the mental state associated with conduct at the start of an investigation itself? Simply refurbishing the bailable vs. non-bailable setup by being consistent in the specific punishments of each offence is, therefore, far from being a viable answer to the problem. The classification might be set in stone for each offence, but upon closer examination it appears to be little more than a line in the sand in the specific facts of each narrative that constitute an offence. Since the telling of this narrative is exclusively within the executive’s domain, retaining any kind of classification concept will always entail some degree of subjugating personal liberty to the whims of executive officers.Judicial Discretion The abiding faith in judicial discretion, albeit with notable qualifications, is perhaps the defining feature of bail law. Senior judges are trusted with unfettered discretion while the magistracy “shall not” ordinarily grant bail in cases punishable with either death or imprisonment for life (because of a distrust of the lower judiciary, as debates around the 1923 amendments to bail laws confirm. Longer take on the changes to bail laws should be out soon). Faith in judicial discretion has been so staunch that, while parliament has fettered it when deemed fit even for senior judges (UAPA, anyone), it has refused to suggest any criteria to canalise the exercise of discretion in bail matters. Superior courts have offered stoic guidance on occasion by way of illustrative lists that, essentially, ask judges to simply look at everything before doing anything.I would argue that unfettered has, over time, become unbridled discretion in bail matters. In perpetuating the belief that judicial black-boxing of bail decisions is a value, the law has conferred almost tyrannically broad discretion upon judges in bail matters, bringing us to a situation where arbitrariness runs rife. Judges must consider factors such as the possibility of tampering with evidence or of the accused absconding, but there is no statutory or other guidance to help courts assess these factors with any uniformity for deciding release and any conditions that might be necessary. They are expected to look at the gravity of an offence, seriousness of allegations, and the nature of evidence; but what happens to securing a presumption of innocence in such a setup where judges must prejudge the case to an extent for deciding bail? It merely becomes yet another factor in the inexplicable medley for deciding bail. And, of course, while judges are asked to look at all these considerations, to what end are courts looking at all this information? There is no answer, as the system has consistently refused to offer certainty about the objectives that bail decisions are guided by. In this manner, we have not only got arbitrariness of outcomes, but denuded the entire setup of processual fairness. The very concepts of a “procedure established by law” and “equality before law” as we identify them today require a degree of certainty in how cases ought to proceed to provide clarity to litigants who approach the system. It is as if while trumpeting the cause of judicial discretion for so many years, the system forgot that discretion can never be an end in and of itself. In return, as has been starkly witnessed of late, the fundamental right of personal liberty has been reduced to the caprice of specific judges. Till the exercise of discretion in bail remains a black-box into which we cannot peer, the only conclusion is that no procedure established by law decides how bail applications are denied or granted. ConclusionsJustice Jackson put it plainly: “admission to bail always involves a risk …” There is no doubt that every legal system must strike a compromise when it comes to a matter of bail, for some accused persons will manage to flee or otherwise take undue advantage of their liberty, no matter what the system is designed as. Does that fear condition the law’s approach to bail? It could, but it would be akin to driving a train through personal liberty and the presumption of innocence, both of which are central to how the republic of India imagines its rule of law regime. Only, for that to happen, the system would have to commit to an idea of objectives that it thinks should guide bail discretion, and that is something India has been loathe to do. Instead, what we have is not a system based on fear, but on pure arbitrariness, where the enjoyment of personal liberty is forever under the thumb of the state. Whether it might be the government which can make any crime non-bailable, or the capricious police officer who can then invoke a non-bailable offence, or finally the judge who has no guidance whatsoever and so must be guided by her own conscience; each of these delivers a body blow to personal liberty in the republic. Mr. Faruqui’s case is not an exception, Rather, it is emblematic of the battered state that personal liberty finds itself in today, and will continue to find itself in, until governments reconsider the outmoded and antiquated regimes of arrest and custody. [Abhinav Sekhri is an advocate practising in New Delhi. An earlier version of this article first appeared here. Views are personal]Next Story
Facebook Twitter Google+ Related Stories Syracuse midfielder Hayes McGinley suspended indefinitely after punching 2 people, arrestSliders employee not charged after knocking Hayes McGinley unconscious during March 14 incidentHayes McGinley’s lawyer said suspended SU midfielder had ‘no recognition’ of his actions that led to arrestSyracuse men’s lacrosse player Hayes McGinley’s court case adjourned until next weekWoman who says she was ‘sucker punched’ by Syracuse lacrosse player argues he deserves harsher punishment Published on April 21, 2015 at 2:57 pm Contact Jessica: [email protected] | @JessicaIannetta Syracuse University men’s lacrosse player Hayes McGinley will no longer face charges for punching two people on Marshall Street last month if he stays out of trouble for a year.McGinley, a redshirt freshman midfielder, pleaded guilty to two counts of harassment in the second degree in Syracuse City Court on Tuesday afternoon.In a statement released through his lawyer, McGinley apologized to everyone involved in the Marshall Street incident.“I take my role as a student athlete very seriously and I pray I am given a second chance,” he said in the statement. “I am working very hard to regain respect from everyone in my life.”McGinley, 20, was arrested on March 14 and indefinitely suspended from the lacrosse team the next day for an unspecified violation of team rules. Police said McGinley, who was drunk, tried to get into the car of an Insomnia Cookies’ delivery worker on Marshall Street. An argument ensued in which McGinley punched the delivery worker and another co-worker, police said.AdvertisementThis is placeholder textAfter McGinley punched the delivery worker, a Sliders employee punched McGinley, knocking him to the ground. Police did not arrest the Sliders employee after determining he used force to defend another individual, which is legal in New York.In addition to a one-year conditional discharge, McGinley must also stay away from the two people he punched for a year. Following the incident, the two victims had a full order of protection against him, which prevented him from going to Insomnia Cookies or Sliders.At court on Tuesday, McGinley’s lawyer, Eric Jeschke, argued the order should be downgraded to a partial order of protection because McGinley doesn’t know what either of the victims look like because he was drunk during the incident. The judge granted this request and McGinley is now allowed to go to Insomnia Cookies and Sliders, but he’s “not going to,” Jeschke said.Jeschke said he didn’t know McGinley’s status on the lacrosse team or at Syracuse University.McGinley may also have to pay restitution to the victims for any bills they incurred because of the incident, such as hospital bills. The exact amount of the restitution will be decided at a later date, Jeschke said.Jeschke was himself a midfielder on the SU lacrosse team in the ‘80s and played with current Syracuse lacrosse head coach John Desko’s two younger brothers. Jeschke said one of his former teammates is friends with McGinley’s father and that’s how McGinley got his name.McGinley appeared in four games for Syracuse this season and recorded three shots. He is the nephew of actor John C. McGinley, who is best known for playing Dr. Perry Cox on the TV show “Scrubs.”— Asst. Sports Editor Sam Blum contributed reporting to this article. Comments