R.V

Magna Carta and Chagos

In his book on the Rule of Law, Lord Bingham an outstanding British Judge, now retired, takes us on a wonderful excursion to the sources of the Rule of Law. The first stop is the Magna Carta, which was signed on 15 June 1215 by King John, one of the most famous or infamous kings in English history. Lord Bingham, quoting from James Holt, tells us: “The Magna Carta was not a sudden intrusion into English society and politics. On the contrary, it grew out of them… laymen had been assuming, discussing and applying the principles of the Magna Carta long before 1215.” The principles embodied in the Magna Carta became an integral part of what we know today as the Common Law, and they went on to pave the way later on to events that changed the constitutional landscape in France and the United States. In England, the separation of powers developed largely as a result of the Magna Carta.

The Magna Carta provided that no tax could be imposed unless agreed by Parliament and that the King was subject to “God and the Law”. Article 40, which provides “To no one will we sell, to no one deny or delay right or justice”, could well be engraved on the walls of every Ministry of our country.

Article 39, which is the basis of a trial by jury, embodies a fundamental democratic principle of the trial of an accused by his peers or by the law of the land. It provides: “No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

It is not surprising then to find that Lord Bingham dissented from the majority judgment of the House of Lords which concluded that the prerogative order in Council prohibiting the Chagossians from returning to their homeland was lawful. Lord Bingham was of the view that the prerogative order is a relic of the past and that the principle that every State must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute. It is also an entrenched principle of international law that a State is precluded from refusing its own nationals the right of entry or residence (Van Duyn v Home Office [1975] Ch 358.

Lord Bingham dismissed the appeal on two grounds namely on the irrationality of the decision which prohibited the Chagossians from returning to their homeland and on the breach of clear representations made by the UK government not to challenge the Divisional Court which held that the eviction of the Chagossians from the Chagos was unlawful. There was also an undertaking that the UK government would introduce new Immigration Ordinance which would allow the Chagossians to return to the outer islands.

As the UK government prepares itself to mark some eight centuries of Magna Carta and the ideals embodied in the rule of law, it remains indifferent to the plight of the Chagossians. Diplomacy has broken down and has prompted the Mauritian government in the recent Presidential Speech to make it known that all options remain open. The UK should understand two things from that official position. First, Mauritius is seriously contemplating the option of applying to the International Court of Justice for an Advisory Opinion. Second, Mauritius is prepared to open up the Indian Ocean to India for some competition. How about inviting India, a member of the nuclear club, to open a meteorological station on Agagega? India has always stood by the side of Mauritius and the developing world. Where is the harm? Once the intention of the Mauritian government is made clear, both the UK and the US will come running to the negotiating table.

The Magna Carta is, as one barrister once put it, England’s gift to the world. Why is it so difficult for the UK, after a long tradition of respect for the rule of law, to respect the rights of the Chagossians?

R.V.

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