QUOTE OF THE WEEK
"Tell me, and I forget. Teach me, and I may remember. Involve me, and I learn."
-- Benjamin Franklin

Paradise Lost 

-- R.V. 

“Britain has no friends… only perpetual interests to safeguard,” a former UK Foreign Secretary once commented. In the case of Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, delivered on 22 October 08, a majority of the Law Lords endorsed this comment as a legal maxim. They held that the interests of UK should always prevail over the rights of the inhabitants of a colony in the event of a conflict. Accordingly, the decision of the UK government to enact Prerogative Orders made by the Queen in Council which prevented the unrestricted return of Chagos islanders to their homeland was not unlawful

In reaching its decision, the House of Lords Aid laid emphasis on the fact that the question of return for the Chagossians is essentially one of economic resources and political will, to be decided by the executive and certainly not by the judiciary. It took into account the fact that the Chagossians had received compensation on three occasions. On the last occasion in July 1982, it was agreed that that the UK government would pay four million pounds in a trust fund set up under Mauritian statute. The agreement which provided the preclusion of Chagossians to return to the Chagos and to renounce all claims against the UK government was signed by representatives of the two governments in presence of the Chagossian representatives. The famous 1982 agreement which was a determining factor before the House of Lords is well documented. The representative of the Mauritian government was our then Minister of Foreign Affairs, Mr J. C. de l’Estrac, serving a 60-0 MMM-PSM government. The then government had seen no objection to encouraging the Chagossians to enter into the agreement in full and final settlement of any claim they may have against the UK government. Those who have castigated Sir Seewoosagur as a sold-out on the Chagos issue for purely partisan reasons should think twice before passing such facile judgment. In the case of Sir Seewoosagur and his delegation, there is clear evidence that they were misled. The materials that have emerged from the Records Office clearly establish that fact. The same cannot be said for those who were in government in 1982. In 1982, Mauritius was sovereign and the then government acted independently as a sovereign state. There was no coercion by the British government to sign the agreement.

The judgment will no doubt make legal history as it removes any lingering doubt that may have persisted as to the justiciability of a Prerogative Order made by the Queen in Council. There is no reason why, their Lordships concluded, prerogative legislation should not be subject to judicial review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action. In so far as we are concerned in Mauritius, it would be important to draw a parallel as to whether the President remains immune from justice in respect of statutory decisions taken by him. But apart from its jurisprudential relevance, it offers a partial picture of the Chagossian history.

However sympathetic one can feel towards Mr Bancoult, irrespective of the motive that may have guided him, the fact remains that he has reached the end of the road. He has chosen the option of fighting a legal battle before the British Courts. Whatever the outcome would have been, he would still have been subjected to the colonial regime of BIOT. He should, by now, have been advised that an action before the European Court of Human Rights raises an insurmountable legal issue of admissibility. At paragraph 64 of the judgement, Lord Hoffman gave short shrift to his counsel when the latter argued that the European Convention of Human Rights should apply. The Judge pointed out that in 1953, UK had made a declaration under Article 56 of the European Convention on Human Rights extending the application to Mauritius as one of “the territories for whose international relations it is responsible”. That declaration lapsed when Mauritius became independent. There has been no such declaration in respect of BIOT (Chagos Archipelago). If the convention has no application in BIOT, then the actions of the UK government in BIOT cannot infringe the obligations of the UK under Human Rights Act which incorporates the Convention. The prospects of a judgment before the European Court are therefore remote.

Lindsey Collen is right when she urges that we should avoid the pitfall of a fragmented approach and that it is time to seek an advisory opinion before the ICJ. The Chagos Archipelago was unlawfully excised by the UK from the territory of Mauritius, prior to its independence in violation of UN Declaration 1514 and UN Resolutions 2066, 2232 and 2357. Ever since, the Government of Mauritius has consistently pressed the UK, both bilaterally and unilaterally, for an early unconditional return of the Chagos Archipelago to Mauritius. Mauritius has never relinquished its sovereignty and has never acquiesced in the creation of the so-called BIOT. It is foreseeable that the UK government may argue before the ICJ that the Chagossians have a right to self-determination and that such right does not concern Mauritius. There has already been a Machiavellian strategy to distribute UK passports to all Mauritians of Chagossians origin. Late Sir Satcam Boolell had already warned us of the danger of a referendum. Mauritius would be relegated as a mere bystander in the process. Mr Bancoult has already given an inkling of the desire of the Chagossians to keep the red passport when the “Let them Return Committee” met on the premises of the House of Lords. The fact is that all Chagossians, including Mr Bancoult, are Mauritian citizens enjoying the same rights and privileges as other Mauritian citizens. At the time of independence, it was expressly provided in our Constitution that all inhabitants of Outer Islands should become Mauritian citizens.

Successive UK governments have undertaken to return the Chagos Archipelago when no longer required for defence purposes. This undertaking would not apply to Diego Garcia which is still required as an important military base for the West. But surely the islands of Peros Banhos and Salomon which are located some 200 km away from Diego Garcia, should qualify. The Government of Mauritius has already made it clear that it does not dispute the presence of a military base on Diego Garcia and can reach some understanding as regards Diego Garcia. Mauritius should therefore press for the return of the islands of Peros Banhos and Salomon.

There are interesting lessons to be drawn from the judgment of the House of Lords. Sadly enough, it offers a fragmented picture of the Chagossian issue. The interests of Mauritius, whose territory the UK government callously dismembered, were unfortunately not an issue before it.

R.V.