The Chagossians' Struggle and the Last Bastions of Imperial Constitutionalism

Abstract

The scale of the injustice inflicted upon the Chagossians by the UK is self-evident, but the legal route to redress opaque and fraught with difficulty, as highlighted by the House of Lords’ majority decision in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] 1 AC 453. This disconnect is, nonetheless, inherent in the UK’s constitutional order. Constitutions outline the operation of governance orders, with constitutionalism injecting substantive principles into this picture, developing the relationship between the holders of power and those subject to its exercise. But not all constitutionalising projects are devoted to the same ends. The legal saga of the Chagossians throws into sharp relief the irreconcilability of the imperial constitutionalism which organised the relationship between the UK’s legal systems and those of the UK’s colonial territories in the nineteenth century and the principles which supposedly underpin the UK’s liberal democracy in the twenty-first. The latter developments encourage us to bridle at a system that excludes substantive protections for a colonised community against unchecked and oppressive exercises of executive power, even though the constitutional architecture of the British Empire was designed to achieve this very end. This article evaluates the Chagossians’ legal struggle in light of the hurdles that this legal order placed in their path, and the profound impact of their efforts to navigate these barriers to justice.