THE PRISONERS OF ST. HELENA

By BERNARD LEVIN

N December 22, 1956, there appeared in the kjisland of St. Helena (a British Colony) an Extraordinary Issue of the St. Helena Govern- ment Gazette containing the following announce-

After discussing all aspects of this request with the Executive Council, the Governor in- formed the Secretary of State for the Colonies of his concurrence in the proposed arrangements.

It is expected that these persons will be brought to St. Helena in one of Her Majesty's ships in the latter part of January, and that they will be detained at Munden's.

And so indeed they were, and are. But since their trial for 'political offences' did not begin until December 23, the day after the publication in the St. Helena Government Gazelle of the announce- ment that they would shortly be coming there, convicted, it seems to me that the Extraordinary Issue of the St. Helena Government Gazette was Extraordinary in more than the technical sense, and that the case to whose outcome it so pro- phetically referred before it had started will bear investigation. And, as will be seen, the case becomes more extraordinary, and for that matter more disquieting, as investigation pro- ceeds.

Absolute Rule

The story begins in November, 1956, in Bahrain. Bahrain is not, of course, a British territory, but it is a territory under British pro- tection: it has a British Political Agent (at the material time Mr. Charles Alexander Gault) and a British Political Officer (a lower rank; at the time, -Mr. Alfred Francis Ward) who represent the British Government in Bahraini affairs, and exercise the protection of the British Govern- ment. Above the Political Agent for Bahrain there is the British Political Resident for the Persian Gulf (then Sir Bernard Burrows).

Bahrain is under the absolute personal rule (subject only to British administration of ex- ternal affairs, exercised through Resident and Agent) of the Ruler, Sheikh Salman bin Hamed. He had, at the time our story starts, a British Political Adviser, Sir Charles Belgrave: the Ad- viser, unlike the Resident and the Agent, is in the employ of the Ruler, not of the British Govern- thent, and acts exclusively on his behalf. Sir Charles was, in effect, Prime Minister of Bahrain, a post he held from 1926 to 1957, and one of the more touching facts in this history is that he got the post by answering an advertisement the Ruler put in the British press; it is perhaps the only occasion in history when a Prime Minister has been appointed in this fashion. Anyway, Sir Charles Belgrave was not, to say the least, an out- standingly progressive or flexible Prime Minister of Bahrain,- and was, for the last years of his appointment at least, rarely in the position of urging the Ruler to go faster and further in

modernising the political conditions in Bahrain than the Ruler himself would have been inclined to do. It was the British officials—Resident and Agent—who pressed the Ruler to modernise his regime, and the few concessions he made were almost entirely due to British Government pressure.

The Ruler's Law

There was nothing in Bahrain, at the material time, that would be recognised as a law in this country : what its citizens might, might not and had to do was at any given moment what the Ruler decided. There is now a rudimentary legal code, but the prisoners in this case were not tried according to its provisions (which did not exist) or indeed according to the provisions of any legal code whatever. With the exception of certain cases within the jurisdiction of the British Government (constitutionally speaking, of Her Majesty), all cases go either to the existing Bahraini courts, or to special courts that the Ruler may set up, and how, where, and by whom cases are heard and judged is within the Ruler's absolute discretion.

Cases in which there is British jurisdiction are specified in the Bahrain Order, 1952. This applies to all persons in Bahrain except Bahraini sub- jects and corporations, and subjects of the Rulers of Saudi Arabia, the Yemen, Muscat and Oman, Kuwait, Qatar or any of the Trucial States. For dealing with everybody else, the Order makes provision in Bahrain for different kinds of British courts. One, called the Joint Court, exists to deal with what are called Mixed Cases: these are cases (civil or criminal) in which persons subject In the Order and persons not subject to the Order are both parties. In other words, if a British citizen in Bahrain is involved in a dispute at law, or a crime, with a Bahraini citizen, the case is heard before the Joint Court; if only British citi- zens are involved it is heard before what is called the Court for Bahrain, and of course if only Bahrainis (or other local subjects) are involved the British courts have no jurisdiction, and the permanent or special Bahraini courts hear the case. (The reason for this Order is, of course, that the Bahraini courts are very properly con- sidered quite unfit to try British subjects. They are also unfit to try Bahraini subjects. but H MG can hardly do anything about that.) There is one loophole in this Order, which was to prove of great importance in the present case. The loophole consists of a section which provides that, with the concurrence of the Political Resi- dent, mixed eases may (despite the special Joint Court for dealing with them) be transferred to the ordinary local courts. In an access of genero- sity, however, the Political Resident, Sir Bernard Burrows, gave a general concurrence in 1953 that all such 'mixed cases' could be heard before the local courts; in effect, therefore, he abolished the Joint Court entirely.

The Committee

There are no political rights in Bahrain, but some years ago an organisation known first as the High Executive Committee, and later as the Committee of National Union, came into being, one of its aims being a less authoritarian system of government in the territory. Three of the members of this Committee of National Union were Abdul Rahman al Bakir, Abdul Aziz Al Shamlan and Abdullah Al Aliwat. The Commit- tee was well known as the mildest, most inoffen- sive and least demanding nationalist group in the Middle East. Their objective was no more than to have elected representatives to sit on the advisory committees (for health, education, etc.) that were entirely nominated by the Ruler. (These committees in any case had no power's apart from that of advising the Ruler and Sir Charles Bel- grave.) Their aims would have been regarded as ludicrously inadequate by a Rural District Coun- cil in Britain, yet they were met with protracted delay and opposition from Sir Charles. When a BBC television unit went to Bahrain in June, 1956, there were some revealing exchanges be- tween the interviewer (Mr. Woodrow Wyatt) and Al Shamlan (Secretary of the Committee and now one of the three prisoners on St. Helena).

WYATT: What is it that the Committee wants?

AL SHAMLAN: The Committee wants reform and wants to participate in the administration of the country.

WYATT: Does it not participate in the affairs of Bahrain at all at the moment?

AL SuAmLAN: Not at all at the moment, people are not participating in their own affairs. It is only one-man rule.

Wiwi-it What is the system of justice in Bahrain?

AL SHAMIAN: There is no justice. Actually we have no rules whatever. We haven't got a code, we haven't got a penal code either,

WYATT: No laws?

AL SHAMLAN: No laws. And that's what we are trying to get for this country. We want to get laws for the country.

WYATT: And why do you want Sir Charles Belgrave to go?

Ai SHAMLAN: Well . . . he is administrating hospitals. police, customs, finance, justice -that can't be for one man.

On March 2, 1956, when Mr. Selwyn Lloyd was visiting Bahrain, there was a demonstration, and stones were thrown at his car. Al Shamlan declared that this demonstration (which had not been organised by his Committee) was not a demonstration against Mr. Lloyd personally, or against the British Government—the Committee insisted that they wanted Bahrain to retain its British connection—but `to give an expression about Sir Charles Belgrave only . . . the people, as they want him to go, they wanted that Selwyn Lloyd knows this fact.'

Following the launching of the Suez attack at the end of October, 1956, there were disturbances in various parts of the Middle East, in the form of protests and demonstrations against the action, and in Bahrain, in particular (because of the British-protected status of the territory), against the British part in it. Following these disturb- ances, one man was arrested there on November 2, and four more (including the three mentioned) on November 3. None of these men is a British subject (there is some doubt as to whether Abdul Rahman al Bakir is a citizen of Bahrain or of Qatar, but he lived in Bahrain). What they were charged with was as follows : The attempted assassination of the Ruler and of some of his family and of his Adviser (Sir Charles Belgrave); the destruction of the Ruler's palace; setting fire to the airport of Al Moharraq

and other places; the overthrow by illegal means of governmental control [there are, of course, no legal means in Bahrain of altering the governmental control]; and the deposition of the Ruler.

This is, it will readily be seen, a pretty full morning's work, and why persons assassinating the Ruler should subsequently wish to depose him may not be entirely clear. Be this as it may, the men were arrested and charged (though it is not clear how long they were held before being charged, and nothing like habeas corpus pro- ceedings exist in Bahrain), and nothing further happened for some weeks.

The Act of 1869

Before coming to the next event in the story, it will be necessary to say something of the Colonial Prisoners Removal Act, because it is on this and attendant British statutes that so much of the legal side of this affair depends. The Act, passed in 1869, was designed to deal with cases in which citizens of British colonies, sentenced to imprisonment, could not very well serve their terms in the colony of sentence; either because their continued presence there, imprisoned, might cause unrest, or because facilities for secure long-term imprisonment were lacking in some colonies. The Act therefore provided that, with the sanction of an Order in Council, a prisoner convicted in one colony might be transferred to serve his sentence in another. It was provided that the sanction of the Order in Council, under which the 'transfer' was effected, should come into force as soon as it had been published in the appropriate colony, and that when the sanction had been given the actual transfer of the prisoner might be effected under a warrant signed by the governor of the 'exporting' colony and addressed to the master of the ship that was to take the prisoner, or to some other appropriate person. And finally the Act declared that prisoners should be subject in the 'importing' colony to all laws and regulations, and should be dealt with in exactly the same manner, as would be applicable if they had been tried and sentenced in the 'importing' colony.

Now this Act did not, of course, apply to foreign countries, not even those under British protection. By the Foreign Jurisdiction Act of 1890, however, it was provided that various existing Statutes applying to Britain and the colonies might be applied to foreign territories in which there was British jurisdiction, and the Foreign Jurisdiction Act, 1913, adds to the list of such statutes the Colonial Prisoners Removal Act of 1869.

And, to summarise the position regarding British jurisdiction in Bahrain, it extends to cases involving British subjects and cases involving 'Take us to your leader.' both British and local subjects; these latter cases go, either (with the necessary concurrence of the Political Residence) to the local Bahraini courts, or to the special British Joint Court for hearing such 'mixed' cases.

To return from the general to the particular, the prisoners having been arrested on November 2 and 3, nothing further happened until, on December 1, Sir Charles Belgrave (the Ruler's Officer, not the British Government's) orally asked Sir Bernard Burrows, British Political Resident for the Persian Gulf, whether the British Government would be willing for five men who were about to be tried 'for sedition or treason' to undergo their imprisonment, if they were convicted, in a British possession. On De- cember 18 Sir Bernard Burrows replied that this could be arranged, and that the authorities in St.

Helena had expressed willingness to have the prisoners.

But on the same day, December 18, Sir Charles Belgrave, on behalf of the Ruler, handed to the Resident, for transmission to the British Govern- ment, the following astonishing document :

To Her Majesty the Queen of Britain. May God preserve and keep her. In view of the ancient friendship long existing between Her Majesty's Government and us we request assistance from time to time in removing certain persons sentenced in our court to a safe place outside Bahrain for imprisonment for the appointed sentence. We beseech you to allow us to make arrangements with the Governor of the island St. Helena for the reception of the persons who will be sent to that island in accordance with the sentence decided. Always, your Majesty, placing confidence in a response to our request. May God keep you in his care.

Now in the first place the Ruler's statement that 'we request assistance from time.to time in re- moving certain persons sentenced in our court to a safe place outside Bahrain for imprison- ment . . .' is simply untrue; he had never before made any such request. Much worse, however, is the implication contained in the reference to the reception in St. Helena of 'the persons who will be sent to that island in accordance with the sen- tence decided.' For this request was not only made five ,days before the 'trial' took place; it was made four days before the court set up to convict the prisoners was even called into being. In other words, the Ruler knew perfectly well what the 'verdict' would be, and the `court' was merely there to rubber-stamp this.

The Family Trial

And a scrutiny of the 'trial' shows that his con- fidence was not misplaced. To begin with. the Ruler removed the case from the ordinary Bahraini courts and set up a special ad hoc court to deal with it. This court consisted of three judges (there is no trial by jury in Bahrain): they were Sheikh Abdullah, Sheikh Daij. and Sheikh Ali. All three of them are relatives of the Ruler. This family gathering, instead of hearing the case in Manamah, the normal seat of what passes for justice in Bahrain, went to a small place some miles away, called Budeya, ostensibly on the grounds that the disturbances made Manamah unsuitable. The defendants declared that the court was improperly constituted and that the trial should take place in Manamah. These con- tentions were naturally rejected by the Ruler's relatives, and the defendants therefore refused to enter a defence, call witnesses or address the court. One of the defendants, Al Bakir, said that he wished to make a statement provided that certain people not present (through whom alone he could hope to get the facts of the situation publicised), were brought to the court. The Ruler's relatives refused this, too, and proceeded to convict all five of the defendants of all the charges brought against• them. The evidence brought against the prisoners was not of a kind that would have been entertained by any British court. The three now on St. Helena were sen- tenced to fourteen years imprisonment, the other two to ten years. The only right of appeal they had was to the Ruler personally, and having refused the jurisdiction of a court composed of his relatives, they were doubtless not disposed to try their luck with him. At any rate, no appeal was lodged.

Orders in Council

But other things had happened before then. On December 18, the day on which the Ruler's grossly improper appeal for the transportation of men who had not even been tried, let alone convicted, was made, the Governor of St. Helena (5,000 miles away as the crow flies) sub- mitted an address to Her Majesty which read as follows :

Whereas the Ruler of Bahrain has expressed his desire that arrangements should be entered into between Bahrain and St. Helena for removal of certain prisoners from Bahrain to St. Helena; and Whereas it is proposed to make provision for the extension of the Colonial Prisoners Re- moval Act, 1869, to Bahrain; now therefore 1, the Governor of St. Helena, do hereby respect- fully submit to Her Majesty this my humble Address praying that sanction be given by Order of Her'. Majesty in Council that the desired arrangements may be entered into. . .

So we now have, four days before any court existed for the trial of the prisoners, an appeal from the Ruler of Bahrain to Her Majesty de- scribing them as convicted men and asking for them to be taken to St. Helena, and a submission on the same day by the Governor of St. Helena which entered fully into the spirit of the pro- ceedings in its assumption that men who had not yet been tried would be convicted, and went further in its statement that 'it is proposed to make provision for the extension of the Colonial Prisoners Removal Act, 1869, to Bahrain'; no such proposal having been made at that time by anybody.

Worse, however, was to follow. The Ruler of Bahrain is Obviously not concerned with justice, and the Governor of St. Helena is a long way away. But Her Majesty, or at any rate her Colonial Secretary, ought to know better. And on December 19, still three days before the court Was set up in Bahrain, and four before the trial, two Orders in Council were made. The first said that the Colonial Prisoners Removal Act was extended to Bahrain, The second declared that The sanction of Her Majesty is hereby given in order that the Ruler of Bahrain and the Governor of St. Helena may . . enter into an agreement for the removal of prisoners . . . from Bahrain to the Colony of St. Helena. . .

And this Order in Council was published in the Extraordinary Issue of the St. Helena Govern- ment Gazette which appended to it the announce- ment quoted in the first paragraph of this article. But it was not published in Bahrain until-Decem- ber 28 (when it was posted on the official notice- board at the British Political Agency). Therefore the Colonial Prisoners Removal Act did not come into force in Bahrain until that date, for the re- levant section of that Act says that it shall be in force 'as soon as such Order in Council has been published in the colony to which it relates.'

On December 26, three days after the 'trial, but two days before the Colonial Prisoners Re- moval Act came into force in Bahrain (with pub- lication there of the Order in Council), Sir Charles Belgrave handed to the Political Resident a warrant for the removal to St. Helena of the three prisoners sentenced to fourteen years im- prisonment, and on December 28, under this clearly ineffective warrant, the three men were taken on board HMS Loch Insh and given into the custody of her captain. And off they sailed to St. Helena. (Normally such prisoners are sent to the Seychelles, but—by a fine irony—they were at the time full of Archbishop Makarios and his colleagues.) When they arrived, they were handed over to the Governor, and by him to the Super- intendent of Prisons, who is also the Chief of Police, and several other things as well. They were imprisoned, as the notorious announcement, made five days before they were tried, had said they would be, at Munden's. This is a small col- lection of Nissen huts high up on a cliff, sur- rounded by barbed wire.

The conditions under which they are im- prisoned are curiously unrigorous for despera- does of the kind they would be if the charges against them had been true. Those who have seen them there compare their conditions to those of an officer prisoner-of-war under parole, and the situation lends support to the belief that nobody in this case, from beginning to end, really thinks that they were guilty. They spend much of their time gardening (they have made a fine flower- garden), praying and reading the Koran. For a time, they were allowed out for drives round the island, in a jeep provided by the Ruler of Bahrain to enable the St. Helena Superintendent of Prisons to visit their somewhat inaccessible quarters. But a dispute presently arose as to whether they or their captors should choose the day's route, and the upshot is that they have re- fused to go at all.

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 re- ceived 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; (..ar 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 them- selves 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 them- selves, 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 re- spondents 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 appli- cation might be heard by post; that the argu- ments 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 Counsel, 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 Mun- den'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 astonish- ing 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—i.e., roughly speaking, British and Bahraini citizens respectively), but also, from December 19, 1956, over other sub- jects 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 dis- graceful 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 repe- titious, 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 any 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 imprison- ment ranging from ten to fourteen 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 he 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.