by Sean Carey
from the Mauritius Times
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.
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