In a landmark decision delivered on Wednesday, the UK Court of Appeal accepted that in light of the recent European Court of Human Rights Grand Chamber decision in Janowiec (2013), the families of those killed in Batang Kali 1948 would be “likely” to win if they took their case to that Court with the families showing the most important human right of all – to life – has been breached.
The families’ appeal was heard last November 26 to 28. They argue that the UK has a legal duty to properly investigate the Batang Kali massacre, given the 2012 Divisional Court ruling that the Scots Guards involved were acting within the normal British Army command structure and so the UK’s legal responsibility. This element of the Divisional Court judgment was upheld by the Appeal Court which could “see no basis upon that it can be said any such accountability, or liability, passed from the Crown upon the establishment of the independent Federation of Malaya in 1957”. UK government arguments that the Malaysia Government or the Selangor Sultan were somehow responsible for the killings were therefore roundly rejected.
Delivering the appeal judgment three Lord Justices lead by Maurice Kay LJ, Vice President of the Court of Appeal, found that although the killings had happened before the European Human Right Convention even existed, there was a “genuine connection” between the deaths, the “woefully inadequate” failure to investigate them properly at the time, and the new evidence coming to light, particularly in the 1970s and 1990s, which casts real doubt over the official account that the victims were killed when attempting to escape. That new evidence included confessions by several of the British soldiers to murder.
The Court of Appeal however ruled that it was bound by a Supreme Court precedent which predated recent European Court of Human Rights law, and hence, dismiss the appeal made by the families. This means that only the UK Supreme Court itself can bring UK law in line with what the European Court has decided and order an inquiry.
The three appellate judges reinforce the finding of facts made by the two judges below. These include those killed were civilians, unarmed, posed no threat to the soldiers, frighten with simulated execution, detained overnight, all were killed within minutes after released, and their village was burn down. The judges criticized heavily the past investigations as “woefully inadequate”, “one-sided” and “unfinished”.
The families are represented by Michael Fordham QC, Danny Friedman QC, Zac Douglas, Stephen Grosz and John Halford of Bindmans LLP. John Halford said today:
“Some might think it remarkable that present-day human rights standards could create a duty to investigate wrongdoing by British troops in a colonial village six decades ago and its cover up in the years that followed. But those standards are rooted in far older British principles, specifically the right to life and to its protection by laws to be enforced on an equal basis. The Batang Kali massacre occurred because, in Britain’s Empire, its principles were sometimes abandoned. The question the Court of Appeal has had to grapple with is whether they could be abandoned with impunity. It clearly thought not, but felt constrained by precedent to withhold a remedy. The victims’ families will now follow the straightforward directions it has given them to seek a final, just outcome. They will ask the Supreme Court to call the state to account for the killings.”
Quek Ngee Meng, the coordinator of the campaign group, Action Committee Condemning the Batang Kali Massacre, said, “Despite the dismissal of the families’ appeal, our journey to seek redress and justice has not come to an end. The destination is not too far off either. Either UK human rights law needs to catch up with Europe with the help of the UK Supreme Court, or the families will need to go to Europe for satisfaction.”
Quek added, the families have given instruction to their London lawyers to appeal against Court of Appeal decision.
Families of 24 people killed by British troops in the British colony of Malaya in 1948 brought the case to the UK Divisional Court in May 2012. On 4 September 2012, the Court upheld a government decision not to hold a public hearing into the killing and also ruled that British Governmnt was responsible for the killing in Batang Kali. In its written judgement, it said, “There is evidence that supports a deliberate execution of the 24 civilians at Batang Kali.”
以上诉庭副主席莫里斯。凯（Maurice Kay LJ）为首的三司上诉庭法官，在宣读判词时表示，他们发现，虽然欧洲人权公约在该屠杀案发生尚未存在，但这起屠杀案事件和较后“严重不足”、具缺陷的调查报告，以及在1970年和1990年代提出的新证据之间，具有“真实的连接性”，以致对罹难者是因尝试逃跑而被射杀的官方说辞产生疑惑。这些新证据也包括数位涉案英军曾经为射杀行动而招供的供词。
Victims’ families of the Batang Kali Massacre are outraged that the British Minister of Foreign Affairs and Defence declined their request for an out of court discussion with a sensible view to settle the 6-decades historical wrong once and for all before the appeal hearing scheduled on 25 November 2013.
The families have since 12 December 2012, on the 64th anniversary of the massacre, instructed their London solicitors, Bindmans, to write to the British Minister’s solicitors making proposal for talks to seek a viable settlement of this dispute, which terms of settlement would include acceptance of the London Divisional Court’s findings; withdrawal of the official account; an apology; the funding of a memorial garden at Batang Kali for the victims; and reasonable and modest financial compensation for the families.
The request by the families has been endorsed by 10,000 individual who had signed postcards, British and Malaysian MPs, International NGOs such as Amnesty, Reprieve and Minority Rights Group and Malaysian NGOs, all demanding that responsibility be taken and redress be offered.
Despite numerous reminders and the UK Court of Appeal granting an interim stay to enable the proposed talks to take place, there has been no substantive response until 10 months later. On last Thursday, 24 October, British Ministers through their solicitors told the families that they decline to talk for any possible settlement and the Ministers are remain fully committed to pursue their cross-appeal that Sultan Selangor or Federation of Malaya, instead of British Government, should be the one who was responsible for the killing during the material time.
The families are outraged by the British Ministers slamming door on their face. Such attitude blatantly displayed by the British Ministers is contradicting to the shared values between the British and Malaysian where access to justice and the rule of law are available to everyone.
“We appeal direct to the consciences of those at very highest levels of government in the UK and Malaysia, because British Ministers have shown themselves to be unwilling to talk, or listen”, said Lim Kok, one of the victims’ family whose father was beheaded during the massacre.
Families’ lawyer, John Halford is appalled with the British Ministers’ unreasonable approach in slamming the door for discussion. “When visiting Malaysia last year, the UK Prime Minister David Cameron spoke of the ‘shared values’ of the UK and Malaysia – values that included ‘citizenship that means access to justice and the rule of law is available to everyone’. Yet his very own ministers are denying that justice to the dead of Batang Kali and their surviving families”, said John Halford.
Notwithstanding the hiccup, the families and the Committee are not going to give up, and will continue the journey to justice, which was started by the families’ first generation one week after the massacre in 1948. While the lawyers are preparing relentlessly for the appeal hearing, the Committee is launching a social media campaign today, in connection with the Committee’s proposal to establish a Batang Kali Massacre Memorial Garden which is to be erected beside the Ulu Yam Bahru Kwang Dong Cemetery, Batang Kali, the place where the massacre’s victims were buried.
This social media campaign uses the platform of Facebook, Twitter, Blog, Google+ and etc to create public awareness of this cold blood massacre. The use of these media also aims at drawing the attention of the Prime Minister as well as Members of Parliament of both Malaysia and UK.
“We hope that there will be more righteousness politicians, civic society activists and the public come forward and send representation to the very highest levels of government in both UK and Malaysia for a just resolution to be reached for this outright historical wrong” say the Campaign Coordinator, Quek Ngee Meng
The Facebook page of this campaign has an extensive contents including a series of posting with regards to the chronology and progress development of the case of the Batang Kali Massacre. The links of the social media are as follow:-
UNITED KINGDOM MALAYSIA
BINDMANS LLP, HALIM HONG & QUEK (Adv & Sol)
275 Gray’s Inn Road, Suite 9-8, Lobby B, Wisma UOA II
London WC1X 8QB 21 Jln Pinang KL 50450
TEL: 44 (0)20 7833 4433 Tel: 60 3 2710 3818
JOHN HALFORD QUEK NGEE MENG
1. Settlement along similar lines have been reached between the Dutch Government and the survivors of the Indonesia Rawagede massacre that took place in Indonesia on 9 December 1947 and between the British Government and those who survived torture in internment camps in Kenya during the Mau Mau rebellion of 1952 to 1960. There are many other precedents, including the 15 June 2010 apology for Bloody Sunday which was followed earlier this year with compensation offered to the affected families
2. UK Prime Minister David Cameron’s speech can be found via https://www.gov.uk/government/speeches/david-cameron-with-the-prime-minister-of-malaysia
Time: 2 pm
Venue:Level 1, Kuala Lumpur and Selangor Chinese Assembly Hall, No. 1, Jalan Maharajalela, 50150 Kuala Lumpur
Tel: 03-27103818 ext. 142 (Mr Chin), Fax: 03-27103820
日期 : 2013年10月29日（星期二）
时间 : 下午2时正
地点 : 吉隆坡暨雪兰莪中华大会堂
1st Floor, The Federation of Chinese Associations Malaysia
No 1, Jalan Maharajalela, 50150 Kuala Lumpur.
KUALA LUMPUR: A total of 10,000 postcards signed by Malaysians wanting the British Government to make an official apology on the unlawful killing of 24 villagers in Batang Kali in 1948 by British soldiers, were handed over to the British High Commission here today.
Britain’s High Commissioner to Malaysia Simon Featherstone received the postcards from Gabungan Bertindak Malaysia (GBM) chairman Tan Yew Sing and Action Committee Condemning Batang Kali Massacre coordinator Quek Ngee Meng.
The postcard project is a joint effort between the two non-governmental organisations which kicked of last December and is aimed at raising awareness among Malaysians on the British Government’s position on this issue, and had invited Malaysians to express their concern through the signature campaign.
The Batang Kali massacre took place on Dec 12, 1948 during British military operations against communist terrorists after the end of World War II, and it was alleged that the 7th Platoon of G Company, 2nd Scots Guards, had surrounded a rubber estate at Sungai Rimoh and shot dead 24 villagers before setting fire to the village.
In January 2009, the British Foreign Office rejected a call for an inquiry but three months later, it was reported that the government was re-considering the decision.
In September 2012, the London High Court upheld the British government’s decision not to hold a public inquiry into the killing of the 24 Batang Kali civilians more than 60 years ago.
Speaking to reporters later, Tan said Featherstone had expressed his sympathy over the Batang Kali massacre, and promised to convey Malaysians’ concern to his government.
“We (committee members) were impressed by his (Featherstone) effort and we are serious and very persistent on this issue because justice needs to be upheld for the future and good relationship of the two countries to move forward.
“We hope the British Government will close this chapter by giving an official apology, and compensation to the families, and they must be prepared to discuss and settled the matter out of court,” he said.
Meanwhile, one of the victims’ family member, Lim Kok, said the apology would at least help to ease the misery that he felt until now when his father, Lim Tian Swee was slaughtered in the incident.
“I really hope the British Goverment will give us a sincere apology on this matter and some compensation for all the suffering that we have gone through,” he said.
Press Coverage 更多报道:
Relatives want Batang Kali memorial (The Star Online )
10,000 postcards demanding apology(Free Malaysia Today)
峇冬加里惨案 万张明信片交专员署 促英政府道歉（NTV 7）
大马行动方略联盟主席陈友信：“我们总的认为大使的态度是友善的，是带着同情 来看待这个问题的。我们告诉他这件事情，它不只是华人的课题，它是马来西亚人的课题，包含了我们的马来同胞、印度同胞，而且我们是非常严重看待这个问题。 我们觉得假如不能将以前不正义的事纠正过来，那么怎么能确保未来会有正义呢？他说他会把我们的看法，转达给他的上司，会让英国政府知道。”
峇冬加里惨案罹难者家属张观英：“峇冬加里那边很好很平安的。我爸爸在那边割 树胶，割树胶给钱出粮后买米。做么一下子打死24人？我的爸爸被打死，那个地方被烧掉，我们什么都没有了，没有家什么都没有，几乎去乞讨，每天乞一些，1 天2天没有的吃，我的妈妈怎么好，一个一个孩子都送人，我的家散了。”
最新备忘录中，家属提出，英国政府本月初 既然愿意为殖民时期镇压和虐待肯尼亚 茅茅族人民认错和赔偿2千万英镑损失，就应该同等对待峇冬加里惨案死者家属。