Guest Blog: A legal scholar's view on Wednesday's Supreme Court case
Kinnari Bhatt is Vice-Chair of UK Chagos Support Assocaition and is also a highly regarded schloar currently compeleting her PhD on issues related to Chagossian identity in exile. The views she expresses about the upcoming Supreme Court case are her own and not necessarily the settled view of UK Chagos Support Association.
Within the Heart of Darkness, a glimmer of hope: An Unhappy Legacy of Colonial Injustice and the Implications of Chagossian return
‘He who commits injustice is ever made more wretched than he who suffers it’ - Aristotle
‘Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable web of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly’. Martin Luther King
‘Justice is far from being a natural concept. The closer one goes to the state of nature, the less does one find’ –Robert Megarry
Inscribed in the library of our very own Supreme Court are these spirit-stirring quotes: a solemn reminder to judges of their role in disseminating justice at the highest echelons. In legal speak: to deliver a morally and ethically sound rule of law, hold government actions to account, uphold core human rights and to apply the law equally and fairly to all. The Supreme Court is the final court of appeal in the UK for civil cases and charged with hearing cases of the greatest public or constitutional importance. In legal speak: to deliver a morally and ethically sound rule of law, hold government actions to account, uphold core human rights and to apply the law equally and fairly to all.
As we await Wednesday's Supreme Court’s ruling on the Chagossians’ fight to return to their homes, we are reminded of the essential message within those inscriptions: that laws were made to prevent the strong from always having their way. The dispossession of the Chagossians exposes a dark chapter characterised by enduring colonial thinking rooted within the corridors of Whitehall. Ironically 2015 was the 800th anniversary of the Great Magna Carta, widely considered to be of special constitutional importance as part of the uncodified constitution of the UK and which states that no free man shall be exiled.
Britain rightly holds values of democracy, the rule of law and human rights close to the heart of its national identity. We celebrate the successes: the signature of the Magna Carta by King John at Runnymede, the abolition on the slave trade, the fight against Nazi Germany, the subsequent birth of the international human rights regime and self-determination rights of British citizens in the Falklands. Yet in the shadow of these campaigns lurks a wicked episode of British oppression, forced eviction, subversion and denial which continues to prevent the return of around 2000 British citizens to their native home.
That home is the British territory in the Chagos Archipelago, formally known as the British Indian Ocean Territory. Like the Falklands, Bermuda and Gibraltar, Chagos is a British overseas territory and like those places it too has strategic military garrisons. Once it too had a settled and permanent population of people: the Chagossian people, who had lived on the Islands for many generations being brought from Africa by the British, Dutch and French during the colonial period to work in copra plantations.
Yet unlike the Falklands, Bermuda or Gibraltar, Chagossians were expelled on the basis of military interest and in spite of a former US Assistant Secretary of Defence Lawrence Korb seeing “no military reason” for their expulsion and similar remonstrations from senior law lords within our own judicial system.
So how did this expulsion, which seems to undermine fundamental rights come to pass? The answer lies in the obscure and anachronistic use in this case of Royal Prerogative powers or Orders-in-Council: powers which do not require Parliamentary approval. In the case of the Chagossian people, they are powers which allowed the UK Government too arbitrarily and without prior legal precedent, exile inhabitants from their home, property and possession in contravention of basic constitutional rights of abode and human rights.
The repeated use of the same royal powers to thwart the return of a small group of already impoverished British citizens treating them as disposable subjects, unworthy of basic rights and fair dealing, continues today.
In 1966 the US and UK Government signed an agreement which allowed the US military to use Diego Garcia, the largest of the Chagos Islands, for 50 years. The agreement was implemented through royal prerogative powers thus bypassing public debate. As part of that deal the UK agreed to remove all Chagossians from their homeland. The UK also received an £11 million discount on the joint UK/US Polaris nuclear weapons system. From the late 60s an egregious policy of dispossession was deployed.
British officials began restricting food and medical supplies to the islands, so more Chagossians were forced to leave as supplies dwindled. Just before the last deportations, British agents and US troops on Diego Garcia herded the Chagossians’ pet dogs into sealed sheds to gas and burn them in front of their traumatized owners (described by Chagossian exile Bernadette Dugasse in the video the left).
As part of its cynical policy at dispossession the government avoided its international legal commitments by similarly dishonest means. Under the ‘sacred trust’ provisions of the UN Charter, the UK was required to consider as paramount the interests of any settled inhabitants of a territory it administers.
To avoid this responsibility, government officials knowingly misrepresented Chagossians as mere transitory workers and not a settled population.
Then, in 1971 the UK started a programme of night time forced ship deportations to Mauritius and the Seychelles. Many jumped overboard leaving survivors with serious emotional trauma. Deported Chagossians arrived in Mauritius and the Seychelles. Many were left destitute, abandoned on the dock and forced into extreme poverty. After several years compensation of around £2,976 per person was paid to Chagossians exiled to Mauritius whilst those sent to the Seychelles received nothing.
This paltry compensation was in most cases used to pay down debts incurred in the years of delay, and in any case was far from sufficient to build a new life in exile.
And that was just the beginning. This painful, unimaginably difficult exile continued through the repeated and cynical use of the prerogative. In 2000, a High Court verdict restored Chagossians right to live in their homeland and further to this decision the then UK government made clear representation that it would not appeal that legal verdict.
Yet, four years later another British Government dusted of the prerogative to ban any settlement on the Islands through the implementation of restrictions in immigration control on the basis of defence, security and allegedly detrimental environmental impact. The immigration law was enacted on the day of the European elections to avoid media scrutiny.
Chagossians and their legal advisors were shocked and sought to challenge the legality of the 2004 prerogative orders restricting immigration to the islands in the House of Lords. Sadly for the Chagossians the government securing a narrow 3:2 victory which held the use of the propagative to be legal. The verdict of the House of Lords was a massive blow to the Chagossian community, but it also attracted much criticism from legal academics, including Cohn, Poole and Arvind. Failures to recognise the archaic nature and “limited scope” of royal prerogative powers, the lack of legal precedent and obvious unconstitutionality and institutional immorality involved in using an executive power to exile a settled population for the purposes of ‘good governance’ of that population has not been lost on scholars and learned dissenting judges.
Even the seemingly benign creation of the world’s largest ‘no take’ Marine Protected Area around the Chagos Islands in 2010 soon became wrapped in legal controversy. Just one year later WikiLeaks disclosures exposed that the move was at least in part a deliberate attempt to undermine the Chagos return campaign. In 2015, the UN established Permanent Court of Arbitration delivered a withering judgement declaring the UK’s creation of the marine area unlawful in its complete disregard of Mauritius’ coastal fishing rights around the archipelago.
These legal processes come to a head at a critical time for Chagossians. 2015 saw the publication of an independent Government-commissioned report which advised of no ‘fundamental legal obstacles’ to resettlement and that return could be economically, environmentally and socially sustainable. The 50 year US-UK lease agreement which led to their deportation is also expiring. The UK would be within its rights to insist that any extension to the agreement must include US support for Chagossian return. The awaited Supreme Court verdict may also be a final step in the legal battle. It is a challenge to the 2008 House of Lords verdict brought on the basis that the UK Government failed in its public law duty of candour in that it failed to disclose significant documents in the 2008 decision which Chagossian counsel contend would have been highly likely to swing the 2008 House of Lords decision in favour of return.
What would a Supreme Court victory mean?
Crucially for Chagossians, it could be a first step leading to the return of hundreds of exiled islanders who were forced to leave the archipelago at the behest of two familiar Goliaths: the US and UK, and their political and military interests. Yet given the political importance of the case even a negative judgement from the court may not strike a deathblow to a resettlement process, although a positive legal finding will certainly provide strong leverage upon which the Chagossians can finally put the wheels of justice and return in motion.
Practicalities of return would require the government and Chaogssians to agree on the design of a fair return programme with all the necessary requirements for housing, jobs and social conditions for the welfare of returnees. For Chagossians the right to return would at its most fundamental level finally cloth Chagossians with basic legal rights most take for granted: to choose how and where we can live a life with dignity, free from coercion and threat. It would allow elderly community members to pay respects to their ancestors buried in cemeteries on the islands, to continue to practice their unique version of Creole culture and re-assert their deep psychological connection to their land and culture.
It means something wider too though, perhaps again best put by Aristotle:
'It is in justice that the ordering of society is centred’. A gentle reminder to politicians and justices that this struggle represents more than the singular hopes of an exiled population. It strikes at the heart of a growing universal public interest in a rule of law which promotes fairness, ethics, basic rights and a civilised society.'