LALIT comments on House of Lords Judgment

27.10.2008

Five separate judgments were handed down in the House of Lords 22 October judgment on the appeal of the British Government against the Chagossians' right of abode on Diego Garcia. Lords Hoffman, Rodger of Earlsferry and Carswell found against the Chagossians' right of abode, while Lords Bingham of Cornhill and Mance found in favour. In this article, we'll summarize the arguments the judges relied upon and also briefly comment on the numerous mentions of LALIT in the judgment, before moving on to the question of Diego Garcia in more political terms; the illegal military occupation of Diego Garcia and the Chagos by the British and USA, which is the reason for the horrendous banishment of the Chagossians from their home islands, is an eminently political problem.

The House of Lords judgment came as a shock to Olivier Bancoult and the Chagossians supporting the case. During the previous 10 years, while two sets of Court cases, one after the other, made their way through the Divisional Courts and Appeal Courts, since the first judgment in 2000, a total of nine out of nine judges found in favour of the Chagossians' right to return, as their lawyer, Robin Mardaymootoo has pointed out. So, there was reason for hope that they could win the right of return, although this return would have unfortunately been, as has been known since the beginning of the litigation, as British subjects of the illegal colony, British Indian Ocean Territory. In the House of Lords two of the five judges did find in their favour, using enlightened argumentation. But, a majority, that is to say three, found against them. "It is true that the Chagossians will now require immigration consent even to visit the islands," the majority judgment says.

UNDEMOCRATIC DECREES
One of the main arguments used by the majority judges was that the ancient, feudal method of making laws called a Queen's "Order in Council", which is in fact a Cabinet decree behind the back of Parliament, and which was used in 2004 to prevent the Chagossians returning despite having won their case in 2000, was perfectly legal.

Lord Bingham, the presiding Judge, had a much more convincing position in his minority opinion. He said the Order in Council as a method of legislating is passing through an historical process of being phased out, and it cannot thus be used in order to do new things not already done in the past and was thus void. In fact, he says the decree was passed "without public debate in Parliament and democratic decision".

RAISON d'ETAT
Another principle argument of the majority judges was that the political issue, the foreign policy issue, of the defense of the UK and its ally, the USA, was important enough to justify the Order, and the judiciary is, they argue, not in a position to question this. The logic behind this argument is that the Order in Council was made not just in the interests of the inhabitants of the British Indian Ocean Territories, but in the interests of everyone in "the undivided realm" of Great Britain and its territories taken as a whole. As Hoffman puts it: "Her Majesty in Council is therefore entitled to legislate for a colony in the interests of the United Kingdom". And so the government "had to give due weight to security interests" and is "entitled to". "Expenditure of public resources and the security and diplomatic interests of the Crown are ... within the competence of the Executive". Lord Carswell calls this "essentially a political" consideration for the Executive to be in charge of. "Looming over all considerations were the twin issues of prohibitive cost and the United Kingdom's interest in co-operation with an important ally in maintaining a secure defense installation" for which "... the US clearly desired to keep a large clear area around the base."

Again Lord Bingham argues rather more succinctly. He says that the British Government would not have commissioned a feasibility study had it considered Chagossian presence to "threaten the security of the base on Diego Garcia or national security more generally." And "there was no credible reason to apprehend that the security situation had changed."

HUMAN RIGHTS ISSUE OR FUNDING?
As to whether infringements of the Chagossians' human rights made the Order in Council illegal, Hoffman said that they no longer actually lived on the islands, and "During the four years that the Immigration Ordinance 2000 was in force, nothing happened. No one went to live on the islands. Thus their right of abode is," he said, " ... purely symbolic."
And he found that "The whole of this litigation is ... 'the continuation of protest by other means'." And he adds that "Funding is the subtext of what this case is about." He says that the Chagossians' attempt to get compensation through an ordinary Court Case (in 2002) failed, so that is why they are using this as a step "in a campaign to achieve a funded resettlement." In this sense, he argues, it is not a human rights case, but about money. Hoffman thinks it reasonable that the Secretary of State refers to feasibility and expense. He adds that this is because under the UN Charter, colonial powers have a "sacred trust" to "ensure ... [the] economic, social and educational advancement" and "send reports to the Secretary-General." And that that would cost money. On the human rights issue Lord Rodger of Earlsferry, another majority judge, accidentally highlighting Chagos having been illegally split from Mauritius, goes so far as to say that the "At no time while Mauritius was a colony was legislation passed to replace the existing law of the island or its dependencies, wholesale, with the law of England. Therefore, when the Chagos Archipelago was separated from Mauritius in 1965, Chapter 29 of Magna Carta formed no part of its statute law." Meaning that the right of abode enshrined in the Magna Carta does not apply to the Chagossians.

ROBIN COOK's UNDERTAKING
Another issue was whether, when Robin Cook as Foreign Secretary made a formal statement that the British Government would not appeal against the judgment of 2000, this was a firm statement of policy that was binding or whether it depended upon a feasibility study. The majority found it to be contingent on the feasibility study. The study paid for by the British Government, not surprisingly, came and showed that civilized society could not easily exist on the Islands, and if it could, it would be too costly.

Lord Bingham by contrast thinks that Robin Cook's assurance that the British Government would not appeal was a clear and unequivocal statement of policy and could not be undone by a mere decree without some pressing reason which was not present. He said in response to the British Government's argument that LALIT and the Chagossians were planning a Peace Flotilla, "Little mention was made in the courts below of the rumoured protest landings by LALIT."

LITTLE (IF ANY) CONSIDERATION OF CHAGOSSIANS
Lord Bingham has other harsh, if understated, comments of interest on the British Government: "Remarkably, in drafting the 2004 Constitution Order, little (if any) consideration appears to have been given to the interests of the Chagossians whose constitution it was to be." This phrase sums up the continued cynicism of the British state.

Equally stingingly, he adds that the Order in Council "cannot be justified on the basis that it deprived Mr. Bancoult and his fellows of a right of little practical value. It cannot be doubted that the right was of intangible value, and the smaller its practical value the less reason to take it away."

RENDITIONS FOR TORTURE
And before concluding on the judgment, it is worth referring to Lord Hoffman's own stinging obiter dictum on the British executive's responsibility for illegal renditions. "There are allegations, which the US authorities have denied, that Diego Garcia or a ship in the waters around it have been used as a prison in which suspects have been tortured. The idea that such conduct on British territory, touching the honour of the United Kingdom could be legitimated by executive fiat, is not something which I would find acceptable."

In short, in conclusion, the majority judgment is a victory for what the French call "raison d'etat". You don't need convincing arguments for "raison d'etat". The state is its own argument. Even the British mainstream press seems to interpret the judgment as one of political expediency.

POLITICAL STRUGGLE NEEDED
Although, to be truthful, even though the decision was in balance on just one judge this way or that, it is difficult to imagine the judiciary in Britain being able to "win" real battles against the USA-UK's state military arm. And this is what haunts the case. Behind the issue of the right to return, the issues of the UK illegal dismemberment of a colony prior to Independence and of its leasing Mauritian territory to the USA for a military base that is beyond social and political control. Most US and UK citizens have for 40 years not even known of its existence, most Mauritians have opposed the illegal occupation and the base for 30 years, but it has been hard for our voice to be heard, and certainly not possible to control what goes on there. Olivier Bancoult's cases, although he has finally lost at the House of Lords, have over the past ten years contributed to making the crimes of 40 years ago known to the people of Britain and elsewhere. This is an important contribution.

But, we have now on the world-wide basis to confront the UK-USA politically imposed military base. For this we surely require hard political struggle. No number of judges can replace it.

REFERENCES TO LALIT
Before going on to look at the future of the Chagossians' struggle for the right to return and to Diego Garcia and Chagos in geo-political terms, it is worth touching on the references to LALIT in the judgments. LALIT and the plan to take a Peace Flotilla to Diego Garcia and the Chagos is mentioned in the following paragraphs of the judgment (which is reproduced in toto in the DOCUMENTS SECTION of our website www.lalitmauritius.org ): paragraph 25, 26, 72, 112, 170, 171.

The political issue is this: the British Government had a difficult problem. Reeling under the sting of the thorough denunciation the British Government suffered from judges in 2000 case, Foreign Secretary Robin Cook undertook not to appeal against the judgment, and to go right ahead with a feasibility study for resettlement. The study was done. But what is likely to have happened is that big brother USA "leaned" on the British Executive, and got them in 2004 to pass an Order to say "no person has the right of abode in the territory." Anyway, given Robin Cook's statement, this Order in Council, already a dodgy old form of "legislation", would not stand up in Court unless there was "compelling reason" for the Government to have changed its mind. So, the compelling reason invoked was that the British High Commissioner in Mauritius at the time had reported that LALIT and the Chagossians were planning a landing there. This is true. We were. And had got support from the NO BASES meeting at the World Social Forum in Mumbai. And such a landing was perfectly legal because the Chagossians had won their right to return in 2000. Anyway, all the judges thought it was being used by the British State as a bit of a pretext, and that if LALIT's planned Peace Flotilla had anything to do with the Order, it was only to determine its timing, not the fact that there was one.

However, the fact that LALIT and the Chagos Refugees Group's planned action was brought up as the reason for the British State's actions shows the potential importance of such political struggles.

THE FUTURE
Olivier Bancoult and his lawyers will be continuing with an appeal to the European Human Rights Court. If they win, that means as British subjects of a colony, they get the right to return. Then, the US and UK will use administrative means and pay-outs to prevent the right of return having any real form.

Another road map is the re-unification of Mauritius and the closing down of the military base on Diego Garcia. This way, the Chagossians get the right to return by means of the return of Mauritian sovereignty over Chagos, including Diego Garcia. They go back as Mauritians. The Mauritian State has already said it will foot the bill for resettlement.

The way to go about the struggle for re-unification of Mauritius is for the Government to get SADC support by going through its political committee, the Troika, then gathering support in the African Union, so as to put a motion at next September's United Nations General Assembly to put in a case for an Advisory Judgment at the UN International Court of Justice at The Hague. This would have strong political repercussions. LALIT has written to new Minister for Foreign Affairs Boolell to do this. Now we need to mobilize to force the Government to act.

Meanwhile, at least one sovereign country has outlawed foreign military bases in its Constitution, and has done that by means of referendum. In September, 2008, Ecuador has done this. It is not a rich country. But its people are mobilizing.

The impotence pleaded by successive Mauritian Governments has always been abject. It may be less convincing now that the world financial crisis puts the US in an economically weaker position than ever before. The US is already an empire suffering from over-reach in both Iraq and Afghanistan, and is closing bases down every year. We have to make it politically expedient for them to close this one, Diego Garcia, down next.

And the overall message of the legal defeat of the Chagossians is that, when one fragments the struggles into separate bits, one risks losing even in victory. What is the meaning of the right to return, when one does it at the expense of once again being colonized? What is the use in one's own sovereignty, if one's country is used to bombard a wedding procession in Afghanistan or an inhabited city like Baghdad? To win struggles, these issues must be tied together, because they are tied together already by history.

We learn lessons from the judgement. The right of return must be without a condition, like the condition that one is re-colonized. We also learn that legal strategies must keep political coherence, not fall into legalistic traps. We learn that what we need now are political struggles for proper reparations for their suffering to be paid to the Chagossians by both the UK and the US governments. What we need now is for the Mauritian State to put a case before the ICJ to force Britain to cede the islands they stole. The MMM's shadow Foreign Affairs Minister, Vijay Makhan, has taken a firm stand in favour. Surprisingly Paul Bérenger, just when this diplomatic initiative is on the table, brings up a red herring of the International Criminal Court.

At the same time, the Mauritian State must even now set up an Island Council in exile, on the lines of the Rodrigues Regional Council, and change the Constitution to set up a constituency for the outer islands. It is the military base that is the cause of the Chagossian's suffering, so it must be closed down. It is the military base that has prevented complete Mauritian decolonization, so it must be closed down. And when the base is closed, the USA must do a clean-up of the concrete and nuclear mess it has made there. These are the kinds of demands people in Mauritius have been mobilizing behind since the 1970's and up to the massive support from all the unions and women's organizations that LALIT got in 2004 for the Peace Flotilla. The quasi totality of the working class movement is already behind these demands.

So lalit kontinye - as we say.


Lindsey Collen
For LALIT
26 October, 2008