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British
government gets lucky with Chagos case
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Sean Carey
The legal profession in Britain (and
countries like Mauritius which
remains within its sphere of influence due to colonial ties)
is extremely hierarchical as anyone who has experience of
the system will know.
Some
people find the rituals of the courtroom which dramatize the
legal tradition very off-putting. I know I do. But I remind
myself that it doesn’t matter if people are required to
dress up in strange clothes and wigs and sit in higher
places or on bigger chairs
if the final outcome is a just one.
In
any case, the legal system is widely perceived to benefit
injured or innocent parties. Judgements which are found
wanting in the lower courts or where there is a need for
clarification can be taken to higher ones. The idea is that
the prolonged scrutiny involved in a case which ascends the
legal ladder will deliver a fair and reliable judgement.
That’s
the theory. Alas, it doesn't always work out like that in
practice.
Since
2000, seven senior British judges unanimously found in
favour of the Chagos islanders’ right of return to their
homeland and variously found the UK government's case
"irrational", "repugnant",
"unlawful" and "an abuse of power".
In
the case heard before the Court of Appeal in 2007, the
government was refused permission to appeal but was still
able to directly petition the House of Lords even though the
judges stated that the government would bear all further
legal costs irrespective of the outcome. It was a clear
signal of the legal displeasure of this branch of the UK
judiciary towards the executive.
I
remember talking to a barrister friend of mine who works in
the Ministry of Justice in London about the government's
strategy at the time the petition was announced last year.
"Surely, the government doesn't think it can win this
time," I said. "It’s had such a mauling in the
lower courts wouldn’t it be better to accept defeat and
try and make the best of it?" "It's always worth
the government going to the House of Lords," he smiled.
"You never know what can happen. The government might
get lucky."
My
friend was right -- the government did get lucky. On October
22, by a majority verdict of 3 to 2 the law lords found
against the right of return of the Chagos islanders who had
been forced out of their homeland by the British between
1968 and 1973 to make way for the US military base on Diego
Garcia.
I
don't think anyone involved on the islanders’ side
expected this result. My guess is that even the people at
the Foreign & Commonwealth Office including the Foreign
Secretary, David Miliband, were surprised at the outcome.
It
has led to a flurry of legal commentary. A few days ago
academic expert, Marcel Berlins, writing in The Guardian
argued that the law lords should have their workload cut and
only hear
appeals "raising points of law of general public
importance". In cases of constitutional significance
like the one concerning the Chagos islanders
it would be much better if all the twelve law lords were
present, he suggested.
The
point is that the selection of only five law lords to hear a
case increases the chance of an unfair verdict. Another
panel of five could quite easily come up with a different
judgement.
I
suppose the existing arrangements wouldn't matter so much if
there were a further right of redress in the UK but the
House of Lords is the highest court in the land.
Of
course, the British law lords might resist any attempt to
reform their organisation believing that because of their
legal seniority and accumulated wisdom they are impartial
and objective. This is certainly the view of South
African-born Lord Hoffmann, the second most senior law lord,
whose judgement was so critical in finding against the
Chagos islanders’ right of return.
In
1998 a law lords’ ruling concerning the immunity from
prosecution of the former Chilean dictator General Pinochet
had to be set aside because Lord Hoffmann, one of those
involved in the case, had not declared that he had worked as
an unpaid director of Amnesty International Charity Ltd nor
that his wife worked for the organisation. Afterwards, he
proclaimed: "The fact is I'm not biased. I am a lawyer.
I do things as a judge. The fact that my wife works as a
secretary for Amnesty International is, as far as I'm
concerned, neither here nor there."
Neither
here nor there, Lord Hoffmann? That's absurd. The simple
fact is that we are all biased and no amount of learning --
legal or otherwise -- can undo it.
We
should, therefore, recognise this and create the necessary
institutional arrangements which serve to control and
minimise the undesirable consequences of individual (and
group) prejudice which can be found even among those with
the finest legal minds.
An
increase in the number of law lords hearing major cases
wouldn’t eliminate bias altogether but it would
undoubtedly produce fairer verdicts. Such a reform would
ensure that neither citizens nor governments would be
obliged to rely on their luck. And it's a fair bet that the
Chagos islanders would not now be obliged to take their case
to the European Court of Human Rights in Strasbourg.
Dr
Sean Carey is Research Fellow at CRONEM, Roehampton
University
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