‘Ayo Gurkhali’: Winning in the British Courts

A Nepali lawyer recalls how he coordinated the legal movement against the mighty British government to ensure
justice for the Gurkha veterans

By Gopal Siwakoti 'Chintan'

Not too long ago, no one in Nepal or internationally could believe that the citizens of Nepal serving in the British Army, representing largely the mountain ethnic and indigenous populations, could even think of fighting for their equal rights and winning court battles in the UK. From Kathmandu to London, it was believed that the 1947 Tripartite Agreement on the Recruitment of the Gurkhas (TPA) into the British and Indian army was a bible that no one could touch upon. From 1992, many lawyers from Nepal and the UK were paid huge sums by the Gurkha Army Ex-Servicemen's Organisation (GAESO) to get justice from the British Ministry of Defense (MOD) and its Headquarters Brigade of Gurkhas (HQBG), but they had failed to produce a single piece of paper for any legal strategy and action in British courts.

It was only in 2000 that GAESO asked me to become its new legal advisor and I agreed. GAESO at that time wanted no more than a petition to be prepared and filed in a British court so that they could claim to be fighting for justice. Their problem was that they had already raised huge sums of money from the Gurkhas and spent it in travelling from Geneva to Brussels and The Hague looking for justice from international courts. It was, however, futile since the battle had to be waged in British courts first.

The first thing I did was to prepare various categories of individual Gurkha profiles of pensioners, redundants, prisoners of war and widows. We then called an international conference in Kathmandu in 2001 where I, with Mary des Chene, a PhD holder on Gurkha matters, prepared an international human rights and legal strategy paper for campaigns as well as possible legal actions in regular British as well as the European Court of Human Rights in Strasbourg, France, in addition to complaints at the various human rights labour rights bodies of the United Nations system. It was my view throughout that the Gurkhas could possibly never win anything unless we challenged the TPA as being against fundamental international, European and British human rights laws. We proceeded on this assumption and have now prevailed. Previous GAESO lawyers and London solicitors/barristers never attempted this approach.

I met a British public interest lawyer, Phil Shiner, at an international conference in Tokyo in August 2001 and he offered his support to find the best lawyers in the UK. We then met in London early 2002 to prepare a legal strategy. He visited Nepal and we prepared hundreds of witness statements from all the above categories of Gurkhas. We filed the first case against discrimination in pension and other benefits at the London High Court on 8 May 2002. We immediately filed another case for ex gratia compensation for Gurkha prisoners of war (POW) held by Japan in World War II. This was done on the basis of our own research. We won the first legal battle for the Gurkahs on 27 November 2002 from which over 4,000 Gurkha POWs are estimated to have benefited £10,000 each-- that is 40 million pounds in the aggregate.

Our next victory came through the pension case from the same Court on 21 February 2003 in which we lost the pension part on various mysterious and unfair grounds but won on many other fronts, thus opening the floodgates for all kinds of law suits in the future as announced by our Barrister, Cherrie Booth QC, after the judgement was delivered. These victories include: (a) declaration of the TPA as a transitional arrangement and not a valid treaty to justify discrimination against British and European human rights laws, and, (b) compelling the UK government to review existing immigration policy to accommodate married accompanied service for the Gurkhas -- for the first time in history.

On the pension part, there are various interpretations, some of it motivated by vested interests to save their face. Some say even today that Justice Sullivan urged the MOD and GAESO to resolve the differences through negotiation which we lawyers failed to do! This is not a tenable argument, since this was not the Court's judicial finding but only a wishful thinking. Interestingly, the same High Court Justice Nicolas Blake QC who gave the third victory for the Gurkhas on the right to settlement case on 30 September 2008 is the one who pleaded for GAESO in the Court of Appeal. That time, he never said that we should or could negotiate with the MOD as a 'right' rather than appeal. We appealed but lost. Some GAESO immigration lawyers still tend to believe that the lost pension case should have been taken to the House of Lords. But the same Justice Blake, the then GAESO Barrister, advised us against taking this case to the Lords, and start a fresh applications on the basis of new evidence gathered during the proceedings but not accepted by the Court of Appeal on technical/procedural grounds.

Subsequently, in 2004, we filed a new pension case but the MOD replied by declaring a complete review of Gurkhas terms and conditions of service on 11 January 2005. The result was the announcement of the Gurkha Offer to Transfer (GOTT) on 7 March 2007 for Gurkhas who retired after 1 July 1997, as well as those in service now. However, the GOTT was also discriminatory as it did not include those who retired prior to that date and was baseless and unlawful. Unfortunately, neither GAESO nor any other Gurkha organsiations challenged the GOTT within the timeframe of three months from the date of announcement. Since then, I have had massive differences with GAESO and its immigration lawyers, who were unwilling to challenge the GOTT. Some individual Gurkhas tried but failed as their lawyers had virtually lost sight of all the main clues in the discrimination challenge, including the issue of the illegality of the 1 July 1997 cut off date.

The Gurkhas now have their third victory from 30 September 2008, from Justice Blake, the former GAESO Barrister twice, both in the pension and POW cases. This judgement has declared the 1997 cut off date as illegal and unfair. Now the Home Office has to come up with a new Gurkha immigration policy by the end of December this year. They may still try to exclude some Gurkhas from this new policy, e.g. redundant and British National Overseas (BNOs) -- the stateless sons and daughters of Gurkhas born in Hong Kong prior to 1997. It may be relevant to mention here that the right to settlement for serving and post-1997 Gurkhas, including many hundreds of pre-1997 as well, had already been won before GAESO recruited a new immigration legal team so this victory is only partial as the main foundation had already been led by the previous legal team. This leaves us the challenge of either exploring the possibilities for a new pension case on human rights grounds or launch a street protest with public campaigns till the end.

Today the laws are there, the lawyers are there and the British public are behind us. I am hopeful that the Gurkhas will win sooner rather than later on all fronts, including pension. The only loss for some of us is personal and emotional.

As a lawyer, I came alone to fight for GAESO in the UK but soon I will be going back alone after bringing all of them in Britain which was never the end goal. The goal was the equal pension right back in Nepal which is still on! This is the most painful and harsh reality of it. The government of Nepal kept quiet throughout the struggle and we lost the goodwill of the Gurkhas in Nepal by not taking diplomatic action for their pension rights. It is now up to the new Nepali government to win back their hearts and minds so that they come back to Nepal to help their motherland prosper and move towards a better future.

(A London-based legal advisor and campaigner for GAESO, Chintan can be reached at pairavi@btinternet.com)