Introduction

Mohamed v. Breish & Ors is a significant judgment delivered by the England and Wales Court of Appeal (Civil Division) on May 15, 2020. The case revolves around the application and boundaries of the "one voice" principle, a constitutional doctrine that mandates English courts to adhere to Her Majesty's Government's (HMG) recognition of foreign states and their governments. This principle ensures that recognized governments are treated as sovereign entities in legal disputes within English courts.

The backdrop of the case is the tumultuous political landscape of Libya following the 2011 overthrow of Muammar al-Qadhafi. The ensuing power vacuum led to the emergence of multiple governing bodies, including the National Transitional Council (NTC), General National Congress (GNC), House of Representatives (HoR), and eventually, the Government of National Accord (GNA). The dispute centered on the Libyan Investment Authority (LIA), Libya's sovereign wealth fund, and its governance, leading to competing claims over its chairmanship.

Summary of the Judgment

The Court of Appeal dismissed the appeals brought by Mr. Breish and Dr. Hussein, affirming the lower court's decision which upheld Dr. Mahmoud as the validly appointed Chairman of the LIA. The core of the judgment reaffirmed the "one voice" principle, emphasizing that English courts must accept HMG's recognition of foreign governments without delving into their internal constitutional legitimacy.

The court meticulously analyzed the validity of the resolutions appointing Dr. Mahmoud, Mr. Breish, and Dr. Hussein, ultimately determining that HMG's unequivocal recognition of the GNA as Libya's executive authority bound the court to treat actions taken by the GNA as those of a sovereign government.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that have shaped the understanding and application of the "one voice" principle:

• Luther v Sagor [1921] 3 KB 532: Established that acts of a recognized foreign government are to be treated with the same respect as those of a duly recognized sovereign state.
• Banco de Bilbao v Sancha [1938] 2 KB 176: Highlighted that recognized de facto governments' acts are conclusive and cannot be contested in English courts.
• The Arantzazu Mendi [1967] 1 AC 853: Clarified that the recognition applies equally to de facto and de jure governments.
• Bank of Ethiopia v National Bank of Egypt [1937] 1 Ch 513: Reinforced that recognized foreign governments have sovereign immunity and their acts are beyond judicial questioning.
• Gur Corporation v Trust Bank of Africa Ltd [1987] 1 QB 599: Illustrated the 1980 change in HMG's policy towards non-recognition of governments, yet maintained that in specific cases, recognition can be explicitly conveyed.

Legal Reasoning

The Court delved into the constitutional underpinnings of the "one voice" principle, rooted in the separation of powers between the executive and the judiciary. It emphasized that the executive branch, represented by HMG, holds the prerogative to recognize foreign governments. This recognition binds the judiciary to treat the recognized government as sovereign, barring any internal constitutional challenges to its legitimacy.

In this case, the court examined the FCO letters which unequivocally stated HMG's recognition of the GNA as Libya's legitimate executive authority. Drawing from the precedents, the court concluded that any challenges to the GNA's authority based on Libyan internal law were incompatible with the "one voice" principle. Such challenges would effectively constitute the judiciary speaking with a "second voice," undermining the unity of the state's foreign policy.

Impact

This judgment solidifies the "one voice" principle, reinforcing the judiciary's obligation to adhere strictly to the executive's stance on foreign government recognition. It underscores the limitations of English courts in adjudicating disputes that question the sovereignty or legitimacy of recognized foreign governments based on their internal constitutional frameworks.

Future litigations involving foreign government actions will be influenced by this precedent, ensuring that English courts maintain coherence with HMG's foreign policy decisions. It also delineates the boundaries within which challenges to recognized governments can be entertained, focusing on actions not directly questioning their recognized sovereignty.

Complex Concepts Simplified

One Voice Principle

The "one voice" principle mandates that English courts must align with the recognitions established by HMG regarding foreign states and their governments. This means that once a foreign government is recognized by HMG, English courts are bound to treat that government as sovereign without entertaining challenges to its authority based on internal disputes or constitutional questions of the foreign state.

De Facto vs. De Jure Recognition

De Facto Recognition refers to the acknowledgment of a government that is currently in control, regardless of its legal or constitutional legitimacy. De Jure Recognition, on the other hand, is the formal and legal acknowledgment of a government's legitimacy based on constitutional or legal criteria.

In this case, the GNA was recognized de facto by HMG, meaning its actions were treated as those of a legitimate government in the eyes of English law, irrespective of internal Libyan disputes.

Sovereign Immunity

Sovereign immunity is a legal doctrine that protects states and their representatives from being sued without their consent. In the context of this case, it means that actions taken by the recognized government (GNA) are immune from legal challenges in English courts based on internal legitimacy issues.

Act of State Doctrine

The Act of State Doctrine prevents English courts from examining the validity of public acts committed by a recognized foreign sovereign within its territory. This means that once a government is recognized, its public acts cannot be questioned in English courts, preserving international comity and the executive's role in foreign relations.

Conclusion

The Mohamed v. Breish & Ors judgment serves as a definitive affirmation of the "one voice" principle within English constitutional law. By upholding HMG's recognition of the GNA as Libya's legitimate executive authority, the court reinforced the essential unity between the executive's foreign policy decisions and the judiciary's application of the law.

This case underscores the judiciary's limited role in foreign affairs, emphasizing respect for the executive's domain in recognizing and interacting with foreign governments. The ruling ensures that English courts remain consistent and cohesive in their treatment of foreign sovereign acts, thereby maintaining international legal harmony and adhering to the constitutional separation of powers.

In the broader legal context, this judgment delineates clear boundaries for future cases involving foreign government recognition, ensuring that internal disputes within recognized states do not compromise the coherence of English legal proceedings in matters of international relations.