Thursday, October 09, 2003
Our Finest Hour

If the Chagossians had been armed to the teeth, there is a distinct possibility that they would not have been deported from their strategic island, Diego Garcia. The FO considered their court case an irritating distraction as this terse statement from Bill Rammell revealed:

The Court has dismissed in their entirety the claims brought against the British Government and the BIOT Commissioner. We have always maintained that the proceedings were misconceived and in any case were not the way forward to find long term solutions to the Chagossian community's problems.

Their eviction from the Chagos archipelago under the 1971 Immigration Ordinance had already been declared "unlawful" in an earlier case. However, their claims for repatriation and compensation were dismissed in the High Court as "the claim of unlawful exile as a legal wrong was not arguable".

Now, this jugement appears to offend against a principle of justice. The Chagossians may have been in the wrong place at the wrong time for US/UK but they had been living in that archipelago before the West came along and it could be argued that the territory was their property, held on an individual basis or in common. Their homeland was expropriated and they were deported, which to any libertarian, would appear to be the worst action that a tyrannical government can authorise. (If my history is correct, only totalitarians are usually responsible for the coerced movement of whole peoples).

The original declaration of the Immigration Ordnance as unlawful indicated the eviction was based on royal prerogative and justified on the grounds of "for the peace order and good government" of the British Indian Ocean Territory. As Lord Gibbs noted,

69 The crucial question on the legality of the Ordinance is whether it can reasonably be described as "for the peace order and good government" of BIOT. In the case law cited, the interpretation of that expression most favourable to the Respondents is that they "connote, in British constitutional language, the widest law-making powers appropriate to the sovereign". (Ibralebbe 1964 AC 900 at p.923.) I am unable to accept that those words, even from such an authoritative source, compel this court of abandon the ordinary meaning of language, and instead to treat the expression "for the peace order and good government" as a mere formula conferring unfettered powers on the commissioner.

70 The Respondent's case has to be that the expression used in the enabling BIOT Order is wide enough to include a measure which could and did compel the detention of the citizens of that territory who enjoyed a public law right to live there; and the removal and permanent exclusion of such people from the territory without their consent. The public law rights of these people derived from their status as citizens of the United Kingdom and colonies. Their rights of citizenship attached particularly to BIOT.

71 Each of the words "peace", "order" and "good government" in relation to a territory necessarily carries with it the implication that citizens of the territory are there to take the benefits. Their detention, removal and exclusion from the territory are inconsistent with any or all of those words. To hold that the expression used in the Order could justify the provisions of the Ordinance would thus in my judgment be an affront to any reasonable approach to the construction of language. I conclude therefore that the Ordinance was unlawful.

Whilst repatriation is impossible, there is certainly a case for the British government to compensate the deported islanders.

(9th October 2003, 22.48)


Post a Comment

Blog Archive