Friday, June 1, 2012

Kafka in the Gulf 5

The Defence Begins

The scene now changes to Britain where, early in 1957, a number of citizens began to feel a little disturbed by reports of the way in which this case had been handled, and by the part played in it by the British Government. No appeal could be made to any British court from the decision of the Ruler's relatives, but there was a glimmer of light to be seen in the section of the Colonial Prisoners Removal Act which provided that prisoners serving their sentence in a colony other than that in which they had received it were subject to all the same laws and regulations as if they had been sentenced there. This gave an opportunity to bring habeas corpus proceedings against the Governor and Prison Superintendent of St. Helena.

At first, everybody was most unhelpful. To get the authority of relatives of the prisoners living in Bahrain proved extremely difficult; fear of reprisals by the Ruler made them very wary, and a great deal of cloak-and-dagger stuff had to be resorted to. Finally, a relative of one of the prisoners - Al Bakir - was found in Cairo, and agreed to act. But it was maintained that the prisoners could bring such proceedings themselves if they wanted to, and since they had not it was to be presumed that they did not want to. (The fact that they were quite unaware that any such proceedings were possible, and that there is no lawyer on St. Helena, rather spoilt the judicial tone of this argument.) But eventually it proved possible to get in touch with the prisoners themselves, and Al Bakir signed an application for a writ of habeas corpus.

The next problem was: where was the hearing to take place? Funds were very short for those acting on behalf of the prisoners, and St. Helena was a long way away. Moreover, one of the respondents on the writ of habeas corpus was the Governor who, by a happy arrangement, is also the Chief Justice of St. Helena. And if it comes to that, the other respondent on the writ is the Superintendent of Prisons who, by an equally happy arrangement, is also Registrar of the Court there. It was then suggested that the application might be heard by post; that the arguments could be sent to St. Helena, there heard, and a decision granted in this way. The Colonial Office refused to co-operate with this plan, either. Finally, after protracted argument, it was agreed that the case would be heard in St. Helena, but by a judge from another territory: Mr Justice Brett of Nigeria. The British Government at this point did its one good deed of the entire miserable affair; it arranged for a frigate - HMS Puma - to take to St. Helena not only Mr Justice Brett and Crown Council, but also the barrister acting on behalf of the prisoners. This curious boatload set off for St. Helena early in 1959 (so long had the proceedings taken); there were no shipboard romances.

The arrival of HMS Puma in St. Helena caused a sensation such as the island had not seen since HMS Northumberland brought Napoleon. They even held a ball in honour of the visitors, and I daresay that the sound of revelry by night could be heard as far away as the Nissen huts of Munden's. But the appeal failed, for all that. Not that there was much concern in the defence camp over this: what they wanted was a hearing before the Judicial Committee of the Privy Council, to which an appeal could be made from a decision of the court in St. Helena. They asked leave to appeal, which was granted, on the advice of the Judicial Committee, by as motley a Council as can ever have given its assent to such an application; the decision is signed by The Queen's Most Excellent Majesty, the Lord President of the Council, the Lord Chamberlain, Mr Secretary Maclay, Sir Michael Adeane and (what the devil was he doing in that galley?) Dr Nkrumah.

The Two Questions

The appeal was heard before three judges of the Judicial Committee of the Privy Council. At the end of the hearing, the three judges declared that they wanted it heard again, before a full bench of five judges. Between the two hearings, however, they submitted to the Foreign Secretary (whose stoning in Bahrain, all those years before, might be said to have started the whole chain of events) two questions for his answer, since it was upon these questions that - as they read the law - the case hung. They asked him: 1. Did Her Majesty, on December 19, 1956, hold, exercise and enjoy legislative jurisdiction in Bahrain over persons being subjects of the Ruler of Bahrain and/or Qatar? 2. If so, at what date did Her Majesty acquire such jurisdiction and what was its extent? Mr Selwyn Lloyd made answer, and an astonishing answer he made. He declared that Her Majesty did have jurisdiction in Bahrain over subjects of Bahrain and Qatar, not only (as might seem proper) when they were on British ships and aircraft, not only in Mixed Cases (cases involving both persons subject to the Bahrain Order and persons not subject to it - ie, roughly speaking, British and Bahraini citizens respectively), but also, from December 19, 1956, over other subjects of the Ruler of Bahrain. And, added Mr Selwyn Lloyd, 'On December 19, 1956, Her Majesty exercised that jurisdiction by making the Bahrain (Removal of Prisoners) Order, 1956, and the Prisoners Removal (Bahrain and St. Helena) Order, 1956'.

Now it is to be doubted whether two more disgraceful Orders in Council have ever been made by Her, or anybody Else's, Majesty. They lent the full force of the British Government to a judicial farce on which the curtain had not even gone up; for at the risk of seeming wearyingly repetitious, I must say again that the trial of the men whose transportation was arranged in these Orders of December 19 did not begin until the 23rd, and the 'court' which was to 'try' them did not come into being until the 22nd. So the Foreign Secretary was acting, at the request of the Judicial Committee of the Privy Council, as judge in his own cause. Not surprisingly, he found in his own favour.

The Privy Council declared their hands tied by Mr Lloyd's replies. What is more, they declared 'immaterial' the fact that the British Government's shady part in this shady business had been acted out nearly a week before the rest of the cast took the stage. And, accordingly, they dismissed the appeal. It is difficult to resist the conclusion that they were wrong in law, and more difficult still to resist the conclusion that, if they were right in law, the law is a bad and a silly and a pernicious one, and should be changed.

On the other hand, there are three prisoners on St. Helena, who are liable to be released in 1969 just in time for Christmas, a festival they do not recognise. What is to be done about them? I repeat that nobody connected with the case has seriously suggested that the men were guilty; and even if they were they were clearly not found guilty in a manner that would satisfy a British court, or indeed any court anywhere in the civilised or semi-civilised world. Yet this fake-trial, the verdict of which was decided before it took place, sentenced men to terms of imprisonment ranging from 10 to 14 years, and the British Government has not so much turned a blind eye to the business as gazed full upon it in approval. It may not, or it may, be possible for the British Government to persuade the Ruler of Bahrain to take note of the arrival of the twentieth century; possibly if he had not had Sir Charles Belgrave to advise him for so many years in the ways of the nineteenth, the Ruler may have made the discovery for himself much earlier. But even if we must decide that there is nothing we can do about the way in which the Ruler of Bahrain exercises his rule, surely we are under an obligation, before providing prisons for those of his subjects to whom the Ruler from time to time takes a dislike, to satisfy ourselves that there is some good and sufficient reason - good and sufficient to British ideas of justice - for us to provide such services? The repute of Britain in the Middle East, especially with the forces of Arab nationalism, is low. Actions such as this one are not likely to increase our good standing in the Middle East, or indeed anywhere else in the world. We can do nothing about the other two 'convicted' men, who are serving their sentences in Bahrain. But we can do something about the three on St. Helena.

Does it matter? Does it matter that a few men are unjustly imprisoned in a British colony at the unchallenged demand of an autocratic ruler who faked their trial? I think it does. Though it may be too fanciful to imagine that we can hear the bell tolling in this case, it remains true that no man is an island, even if he is imprisoned on St. Helena. Britain does not, these shrinking days, have much say in what goes on in the world. But she has some say still in what goes on in St. Helena. And what goes on in St. Helena is unjust and wrong. The least we can do is to right the wrong while we have the power.


Here ends Bernard Levin's feature article in The Spectator of July 1, 1960, The Prisoners of St. Helena. Part 2, of December 30, 1960, will be the next in my series Kafka in the Gulf.

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