On 27 November the High Court of Justice in London delivered a landmark judgement in favour of British Gurkha prisoners of war that had important implications for further Gurkha pay and pension cases pending in the British courts as well as for the judicial history of England and Wales.
The judgement awarded equal compensation of ?10,000 to all British Gurkha prisoners of war (POWs) held by the Japanese during the Second World War. In November 2000, the British government had decided to award such compensation to all members of the British Army and colonial forces, including widows. But the Gurkhas who fought for the British Empire for about 200 years were excluded from this scheme. There were over 3,000 Gurkhas (3 battalions) captured out of which nearly half died in prisons in Singapore, according to Pahalman Gurung, one of the claimants. There are an estimated 1,000 survivors and widows in Nepal, India and Burma. The compensation scheme does not extend to their children.
In 2000, the official reason for depriving the Gurkha survivors of compensation was that prior to the 1947 Tri-Partite Agreement signed between the UK, Nepal and India after Indian independence there were no Gurkha battalions. In August, when the Gurkha Army Ex-Servicemen's Organisation (GAESO) brought a case of racial discrimination against the British Ministry of Defence (MOD), the ministry pleaded that the Gurkhas were part of the colonial Indian Army and the British Army had no responsibility of any kind towards them. The MOD further claimed that Indian Gurkhas, although they were recruited from an independent country, Nepal, were trained, disciplined and discharged as per the Indian Army Act as equal to the native Indian Army.
For European white officers or non-Asians serving in the British-Indian Army, the British applied a separate UK Army Act. The MOD had discriminated against the Gurkhas on the same grounds in awarding compensation in 1955 upon the conclusion of a peace treaty with Japan in 1951.
This time, history took a different turn. The London High Court of Justice gave priority to the case of the POWs and held an urgent hearing on 31 October and 1 November. Honourable Justice McCombe, after hearing from Nocholas Blake QC and Aileen McColgan of Matrix Chambers (where British Prime Minister's wife Cherie Booth QC is also a senior law partner, and as instructed by Phil Shiner of Public Interest Lawyers in Birmingham) for the claimants concluded that the there was racism in the way the Gurkha compensation issue had been handled.
Justice McCombe observed that law and the government must accord every individual equal concern and respect for their welfare and dignity. Everyone is entitled to equal protection of the law, which must be applied without fear or favour except where compellingly justified. Distinctions must never be made on the grounds of race, colour, belief, gender or other irrational ground. Individuals are therefore comprehensively protected from discrimination by the principle of equality.
"The allocation to the Indian code of discipline was based upon race. No amount of semantic analysis of the ancient acts can hide that fact," the judge declared. "The Gurkhas were excluded on the basis of a constitutional distinction which was in fact founded upon race."
Effectively, this judgement has now abolished the status of the Nepali Gurkhas serving in the British Army as mercenaries, or their subordinates. Once the same criteria and the principle of equality are applied in all other pending cases of discrimination, then the Gurkhas are sure to win the remaining cases as well. The only serious difficulty in some cases is unreasonable delay in bringing these cases before the MOD and/or the courts as specified in the UK military law and the Queen's Regulations.
The British Gurkha Standing Instructions (BGSI), a separate racist regulation applied by the Brigade of Gurkhas in private, is not going to stand before the court of law. The 1947 Tri-Partite Agreement also had nothing to do in these cases since the court has established that "discrimination is a discrimination" no matter when, where or on whatever grounds. These other cases pay and pensions affecting over 50,000 Gurkhas and their families will be heard in London 18-21 February. The Gurkhas will be represented by Cherie Booth QC and her team of barristers and solicitors.
If these cases are won, the soldiers and their families will finally be able to end a chapter in the history of Gurkha recruitment from Nepal and finish their battle for equal treatment. The injustice inherent in this colonial legacy will then be finally rectified.
(Gopal Siwakoti Chintan is GAESO's lawyer, and part of the legal team in UK.)