Summary of Claimants’ Application for Permission to Appeal
- The lawyer for victims families’ namely Chong Nyok Keyu, Loh Ah Choi, Lim Kok and Wooi Kum Thai (“the Claimant”) have filed an application for permission to appeal so that the UK appellate court may decide on:
- Duty: whether there is a duty for the British Government to hold an inquiry on the killings in Batang Kali in December 1948; and
- Discretion: whether the refusal by the British Government to exercise the discretion to hold an inquiry was justified in law.
- At the High Court level, the Claimants succeeded in establishing the factual basis and the British Government had legal responsibility for the acts of the Scots Guards who killed the innocent civilians at Batang Kali, subject to any cross-appeal by the British Government.
- Given conflicts between European Convention of Human Rights (“ECHR”) and UK Human Right Act, the High Court regarded itself as bound by domestic authority. It is only by being able to appeal that appellate Courts can re-evaluate whether previous, binding decisions should be maintained in the light of subsequent European Court of Human Right’s case law, namely Janowiec (201).
- This case involves issue of “the most fundamental right – the right to life” and serious mass human rights violations, albeit from decades earlier.
- This is a case is of sufficient public importance to warrant further consideration of human rights and customary international law arguments.
- Turning to the substantive reasons for this Court’s analysis upholding the British Government’s exercise of discretion, the Claimants ask the High Court to accept that they can properly invite the Court of Appeal to take a different view. Moreover, the issues are important and it is in the public interest that the case proceeds.
- There are many questions left unanswered. These include:-
i. There is powerful evidence regarding deliberate execution of the innocent civilians;
ii. There is the reference to the then Attorney General Sir Stafford Foster-Sutton having uncovered a “bona fide mistake”;
iii. There is the inexplicable release onto the verandah of a group supposedly “to be taken back to base for interrogation”, but while the only vehicle was full of women and children to go back to the village and the soldiers had no other vehicle.
iv. Not even the most basic of steps – examination of the human remains to see what the pattern of gunshot wounds is, where and from what range – has been undertaken.
v. The High Court recognised that proportionality was a relevant and applicable legal standard at the relevant time. But “no consideration” had been given to its violation “in circumstances where every single person was killed rather than some being wounded”.
vi. Nothing has been identified which could support the thesis that it was necessary and proportionate to shoot at this group of villagers – many of them elderly (a“range of ages” up to 70) – until each and every one of them was dead.
vii. The soldiers had no way of getting villagers, still less injured ones, back to base. They were about to burn the village to the ground. On no basis is proportionality an impossible conclusion for any independent appraiser of the evidence seeking to draw conclusions and contribute to the public interest in truth and reconciliation.
viii. The correct position is that the functions of an inquiry are not contingent upon embarking with a satisfaction that “definitive” determinations on questions of fact can be made. There are degrees of clarity and confidence and it would be for the inquiry to state the degree to which it was able to make its findings and conclusions.
ix. There are broader public interest considerations which relate to an independent body undertaking the task. These public interest imperatives are not satisfied by gently allowing the matter to drop.
- The Claimants state that to undertake and follow through an investigation is to identify a process which serves to provide reassurance and rebuilds public confidence.
- There are 568 organisations in Malaysia who support the investigation that is sought. Their quest raises very strong public interest considerations, which can be seen to demand that the matter not be allowed to rest, especially after so many wholly unsatisfactory previous curtailments.
Application for Permission to Appeal filed on 2 October 2012.
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Radio Australia Judges blame Britain over Malaya massacre (6 September 2012, 0:28 AEST)
Britain found responsible for 1948 massacre in Malaya (6 September 2012, 17:17 AEST)
Malaysian lose fight for 1948 ‘massacre’ inquiry (BBC, 6 Sep 2012)
Batang Kali massacre: Kin to appeal for inquiry (The Sun, 5 Sep 2012)
Batang Kali massacre a regrettable incident (News Strait Time, 5 Sep 2012)
Court confirms Malayan massacre, but rules against full inquiry (The Australia, 5 Sep 2012)
Britain held responsible for mass killing in Malaya: court (Vancouver Sun, 5 Sep 2012)
Campaigners lose court fight for inquiry into 1948 Malaysia ‘massacre’ (The Guardian, 4 September 2012)
High Court rejects probe into Malayan Emergency ‘massacre’ (The Telegraph, 4 September 2012)
High Court once again rejects investigation into Batang Kali ‘massacre’ during Malayan Emergency (The Independent, 4 September 2012)
Malaysia ‘massacre’ relatives lose legal bid for inquiry (Metro, 4 September 2012)
Britain held responsible for Batang Kali massacre (Free Malaysia Today, 4 September 2012)
Britain found responsible for 1948 massacre in Malaya (Radio Australia, 6 September 2012)
Judges block inquiry into Malaya ‘massacre’ by Scots Guards (Scotsman, 7 September 2012)
4 September 2012 from Bindsman LLP
To read the Judgment click here
The quotes below are taken direct from the Court’s detailed judgement:
Responsibility for the troops, their orders and the killings
• “On 11 and 12 December 1948 a patrol of the Second Battalion of the Scots Guards… shot and killed 24 civilians at Batang Kali” (officials had maintained at the time that those killed were “bandits” or “terrorists”) – para 1 of the judgment;
• The Scots Guards were deployed to Malaya directly from the UK following an exchange of “secret” memos which warned “unless the enemy is rapidly defeated, there will be a loss of prestige and prosperity from the first of which the British may never recover in South East Asia and from the second of which the county would take a very long time to recover” – para 22;
• Defending his position in the case, “the Foreign Secretary contended that as they were sent to assist with internal security and as the insurgency was not an external attack, the legal responsibility for the actions of the Scots Guards was that of the Federation of Malaya alone or jointly with the Ruler of Selangor” – para 26
• Despite there being “no legal duty to establish an inquiry” in the view of the Court because European Court of Human Rights case law conflicted with what they considered to be binding decisions of the House of Lords, it was still “necessary to consider the further argument of the Secretaries of State that… the British Government had no legal responsibility for the actions of the Scots Guards at Batang Kali” – para 106;
• “It is clear, in our view, that the British Government had command and control over the Scots Guards. First, the Scots Guards were part of the British Army in contradistinction to the Malay Regiment and other local forces. Second, it is evident from the minute of the British Cabinet set out at paragraph 22… that the reason for the decision to send the Brigade of the British Army was to defend British interests against the advance of communism on what was in reality territory the British government controlled, to prevent the deaths of British citizens and to protect its economic interests. Third, control over the deployment of the army in Malaya was vested in British Defence Co-ordination Committee Far East… Fourth, the Scots Guards were paid for by the British Government, not by the Federation or the Ruler of Selangor. Fifth, it is clear from the role played by Major General Sir Charles Boucher in relation to the investigation in 1948 that his command was in charge of the Scots Guards” – para 112;
• “[G]iven that what is in issue is the actions of the Scots Guards in shooting civilians, on ordinary principles those responsible for the command of the troops who did the shooting, ultimately the Army Council, have the responsibility for their actions. The Guards were trained by the British Army and under its direct command” – para 115 – “we cannot accept the [Secretaries of State’s] submission that the ultimate source of the authority and legal powers was either the Ruler of Selangor or the High Commissioner acting on behalf of the Federation of Malaya” – para 119;
• Of the troops deployed “[m]ost were national servicemen and they had had only limited training for this kind of operation” – para 24;
• The patrol deployed to Batang Kali was led by a 22 year old, Lance Sergeant Charles Douglas, as “there was no officer available to lead it” – para 28;
What happened at Batang Kali
• “There is no evidence, 63 years later, on which any of the 10 key facts relating to what happened at Batang Kali can seriously be disputed” – para 29 (yet the Secretaries of State had maintained in their decisions on whether to undertake a public inquiry and at the hearing it was impossible to reach any meaningful conclusions about what had happened at Batang Kali);
• The 10 key facts included that “Batang Kali was a village on a rubber plantation, inhabited by families. They did not wear uniforms, had no weapons and were a range of ages” – para 29 i) (the Court also noted that “[o]n 22 December 1948, the Owner of the Estate which included Batang Kali, Mr Menzies, made a public statement that those killed had been loyal employees with a record of good conduct” – para 33);
• “On the way to the village the patrol pursued two uniformed armed insurgents, but lost them”- para 29 ii);
• “A young man was shot dead by the patrol in the village on the evening of 11 December 1948; he was said to be Loh Kit Lin” – para 29 iv) (Mr Loh was an unarmed student, shot in the stomach then executed from close range as he writhed on the ground);
• “The inhabitants were separated by the patrol as between (1) men and (2) women and children. They were detained in custody in the village” – para 29 iv);
• “Interrogation of the inhabitants took place. There were simulated executions to frighten them, causing trauma” – para 29 v);
• “The police officers secured information from one of the males, Cheung Hung, about armed insurgents who occasionally visited the village to obtain food supplies. This information was passed to the patrol” – para 29 vi);
• “A lorry arrived in the morning. It was searched. The kepala (headman) was detained. Rice was found” – para 29 vii);
• “The women and children and one traumatised man were loaded onto the lorry. It was driven a little way. They were guarded by members of the patrol before being driven back to their village” – para 29 viii);
• “The hut with 23 men was unlocked. Within minutes all of the 23 men were dead as a result of being shot by the patrol” – para 29 ix);
• “The inhabitants’ huts were then burned down and the patrol returned to its base” – para 29 x);
Why it happened
• As to why this happened the “official explanation given in 1948-9 is that the person (Loh Kit Lin) was shot on the night of 11 December when trying to escape. On 12 December the other 23 men were taken out of a hut to be taken back to base for interrogation. One shouted, they split into three groups and there was an escape attempt. Warnings were shouted at them. When the men did not stop they were shot dead” – para 30 – but “[ i ]t can no longer be permissible to conclude, in our view, on the evidence available at the present time which was before the court, that the 24 men were shot when trying to escape” – para 142;
• In 1970 Metropolitan Police investigation was initiated by DCS Frank Williams. He interviewed a number of the Scotts Guards who could be traced, the majority of whom (Mr Cootes, Mr Alan Tuppen, Mr Robert Brownrigg, Mr George Kydd and D K Wood) admitted that the killings were murders – para 57;
• Their statements are amongst the “evidence that supports a deliberate execution of the 24 civilians at Batang Kali” – paragraph 138 – though there is also some “evidence that supports the account that the 24 men were shot whilst trying to escape” – para 139 – “in approaching the evidence as to whether there was a deliberate execution of the men or the men were shot when trying to escape from lawful custody, there is a conflict of evidence. It can no longer be permissible to conclude, in our view, on the evidence available at the present time which was before the court, that the 24 men were shot when trying to escape. Nor can the conclusion now be reached that that the 24 men were deliberately executed. There is evidence that supports both accounts” – para 142;
Failed past investigations
• “Although there are no papers extant in relation to the inquiry by Sir Stafford Foster-Sutton in 1948-9 [on which the official account was based], apart from the statements of the two police officers and Cheung Hung to which we have referred at paragraph 36.i) above, it is clear that the inquiry had very serious weaknesses. There do not appear to have been any post mortems or other examination of the bodies; no evidence was taken from the Estate Owner. The attitude taken by Sir Stafford to the inhabitants of the village, as set out in paragraph35.i) above cannot be justified. That attitude and the failure to take evidence from inhabitants significantly undermines the objectivity of the inquiry. As we have set out at paragraph 143 the inquiry also has the substantial weakness that it does not appear to have considered whether the killing of each of the men was a proportionate and reasonable use of force in the circumstances, even though as we have set out at paragraphs 33 and 40 the issue was raised at the time” – para 147;
• “The possibility of a conclusion by an inquiry that there was a cover-up by the British officials of the Government of the Federation of Malaya in 1948 cannot be dismissed” – para 152;
• “The allegation of cover-up in relation to the 1948/9 inquiry relates much more significantly to the position of the British Army and Scots Guards in particular. That is the essence of the allegations made in 1970 by the Guardsmen who say there was a deliberate execution of the men and it was “covered up” by the Scots Guards and British Army. This is a very serious allegation though one which can properly be made on the evidence” – para 153;
• “On 30 July 1970, a detailed report was submitted by Detective Chief Superintendent Williams to the Commissioner of Police for the Metropolis. In it he expressed the view: ‘At the outset this matter was politically flavoured and it is patently clear that the decision to terminate enquiries in the middle of the investigation was due to a political change in view when the new Conservative Government came into office after the General Election on 18 June 1970’” – para 67;
• “As is evident from what Detective Chief Superintendent Williams had achieved, at that stage it would have been possible to carry out a detailed factual inquiry, as, even though much of the 1948-9 work had been destroyed, most of those who could give evidence were still alive” – para 150 – but this did not occur, a decision which was “much more difficult to justify” than that to abandon the police investigation – para 155;
• In 1993 a Royal Malaysian Police investigation began and sought the assistance of the UK government, but “[ i ]t is clear from internal British Government memoranda that there was seen to be no reason to provide rapid assistance to the Royal Malaysian Police inquiry. Sometime during 1994 the Royal Malaysian Police made a request for help, but it is evident that it was considered not to be in the interests of the British Government to progress that request with any speed” – para 77 – “the Royal Malaysian Police obtained virtually no assistance from the United Kingdom authorities” – para 79.
To read the Judgment click here
Batang Kali massacre: no public inquiry ordered, but instead a judgment exposing the slaughter of innocents and decades of Government-sanctioned deceit
4 September 2012 from Bindmans LLP
Sir John Thomas, President of the Queens Bench Division, and Mr Justice Treacy today gave judgment on a judicial review of the Government’s position on the killing of 24 civilians by British troops in 1948. The Court ruled that, given conflicts between European Human Rights Convention and UK law, there is no legal obligation to hold the public inquiry into the killings that the family members of those killed have campaigned for. But the Court’s 176-paragraph judgment examines the current documentary evidence in forensic detail, concluding it “can no longer be permissible” for the “official account” of events given to Parliament to be maintained. Ministers’ attempts to evade legal responsibility for the killings by arguing a Malayan Sultan commanded the troops involved are also firmly rejected:
“given that what is in issue is the actions of the Scots Guards in shooting civilians, on ordinary principles those responsible for the command of the troops who did the shooting, ultimately the Army Council, have the responsibility for their actions.”
On what those actions involved, the judgement continues:
“[t]here is no evidence, 63 years later, on which any of the 10 key facts relating to what happened at Batang Kali can seriously be disputed.”
These “key facts” include the inhabitants of Batang Kali (not “bandits”, but “families” of “civilians” who “had no weapons”) being subjected to “simulated executions to frighten them.” The next day women and children were taken away in the only available vehicle, the village hut where the male villagers were held “was unlocked” and:
“[w]ithin minutes, all of the 23 men were dead as a result of being shot by the patrol.”
The Court also reviewed evidence of the men having been walked from the hut to their deaths by patrol members, five of whom confessed in 1970 to murder, corroborating other eyewitness accounts. It commented “[t]here is evidence that supports a deliberate execution of the 24 civilians at Batang Kali.” The decision to hold no public inquiry after the termination of the 1970 police investigation of this evidence was, in the view of the Court, “difficult to justify.” Then, when a further investigation was launched in 1993:
“a decision was made by the relevant Departments of the British Government to progress any inquires with as much delay as possible and to take an uncooperative attitude towards the… Royal Malaysian Police.”
Family members of those killed are now pressing Ministers to accept the facts found by the Court, take full responsibility for the massacre and the scuppered past investigations, acknowledge Parliament was misled, and apologise.
“63 years ago the surviving villagers of Batang Kali began petitioning the British authorities to explain these killings and accept they were wrong. No direct answer was ever forthcoming, but Parliament was told they were a necessary step to thwart an escape attempt by suspects – Communist ‘bandits’ or at least their supporters. This official account was legitimised by its repetition decade after decade coupled with the obstruction and premature termination of two police investigations. But as this judgement shows, ministerial filing cabinets cannot hold stubborn truths indefinitely. Many of the shameful events at Batang Kali have now been firmly established, as has the UK’s ongoing legal responsibility for them. What is also now clear is the scale of the ongoing injustice experienced by the families of Batang Kali. If Ministers can find the moral courage within themselves to address it, they can do so immediately. If they fail to act decisively the survivors and families of the Batang Kali massacre will continue to pursue legal action and complete the work this Court has begun.”
Speaking for the Action Committee Condemning the Batang Kali Massacre, which are supported by 568 Malaysian organisations ranging from schools, temples to professional and other associations, Malaysian lawyer Quek Ngee Meng said today:
“As the Court decisively found that the British Government is responsible for the death, the Action Committee calls for the British Government to acknowledge and accept the legal responsibility of the unlawful killing, and offer an apology to the families of those killed. This will be the only graceful and honourable response to the judgment from the Cameron Coalition Government. Any response falls short than that will certainly and continuously haunt the good relationship between the UK and Malaysia.”
The third of the four family members who brought the claim is Lim Kok. The body of his father, Lim Tian Shui, was found beheaded. Mr Lim expressed relief today at the Court’s decision that the UK was responsible for his father’s death, adding
“Though the Court also found the Government did not need to hold an inquiry on technical grounds, the fact is that the Scott Guards shot innocent civilians, my father included. That truth demands that there be a meaningful apology to me and all those who lost their fathers and breadwinners. This Government offered such an apology to the families of the Bloody Sunday massacre and the Dutch Government did the same for the families of the 1947 Indonesia Rawagede massacre. What is holding Ministers back from doing the right thing?”
Chong Koon Yin, whose father Chong Voon was also killed during the massacre, said today that:
“The judgement has filled me with a mixture of relief and disappointment. Relief because the stigma attached to my father has been lifted to some extent by the Court’s findings and its rejection of the official account. But I am disappointed with the finding that no inquiry required into the death of my father. There remain many unanswered questions. The truth has not been fully revealed. Without an inquiry or a proper acceptance of fault, the Government held legally responsible for the killing remains unaccountable. That is not fair or right.”
They however expressed anger after the High Court judges on Tuesday upheld a government decision not to hold a public inquiry into the shootings.
Quek Ngee Meng, lawyer for the campaigners who have been battling the Batang Kali case since 1993, said they would appeal against the latest court decision.
Although the ruling appeared to give the families a strong case to sue for damages, Quek said compensation was not the point but a full acknowledgement of the fact.
5 Sep 2012, 08:34pm from Ntv7
英国高庭王座法院主席（Queens Bench Division）约翰。汤姆斯爵士（Sir John Thomas）与特里西高庭法官（Mr Justice Treacy）今天对于1948年英军屠杀24名手无寸铁的峇冬加里村民所提出的司法审核一案进行判决。高庭裁决：纵然欧洲人权法院与英国法律互相存有矛 盾之处，但英国政府并没有法定义务为死者家属进行听证会。
该判词也相 继 地指出当时所涉及的射杀行动，“虽然过了63年，但是并没有证据可以驳斥峇冬加里所发生的10项主要案情。”这些案情包括了手无寸铁的峇冬加里男村民被英 军以模拟处决恐吓；妇孺与小孩被仅有的罗里载走后，困锁男村民的村屋被解锁后，“所有23名男村民在瞬间被英军枪毙。”
除 此之外，高庭也重新审阅紧随男村民走出村屋直到被枪杀的英军队员的证据，其中5未英军承认屠杀，证佐了其他目击证人的供词。判词也指出：“确实有证据显示 24名峇冬加里平民是被处决”。高庭对于1970年英警方停止调查后，而英政府又决定不进行任何听证会的证据，表示“难以自圆其说”。
《追 讨英军屠杀罪行工委会》义务律师郭义民表示：“既然高庭已清楚的表示英政府必须为屠杀案负责，工委会要求英政府承认无辜射杀村民以及负上法律责任，向那些 被杀害的死者家属作出道歉。也惟有如此，才能显示出卡梅伦联合政府以荣誉的方式尊重法官的判词。倘若英政府选择冷漠的处理死者家属的诉求，两国的良好关系 肯定会受到影响。”
死者家属的英国代表律师约翰。哈尔佛（John Halford ）指出：“仍生还的峇冬加里村民在63年前已开始要求英国政府当局解释屠杀的来龙去脉以及承认他们的错误。虽然没有任何的正面回应，但英国国会却被告知他 们只是采取适当的步骤阻止嫌犯（共产党份子 / 强盗 / 共产党支持者）逃跑。这项说法在半世纪后遭受到重重的阻碍及干扰，加上两个被提前终止的调查行动而被合理化。但是依据这判词显示，部长们并不能隐瞒事实的 真相。随着高庭的裁决，许多可怕的真相已被揭露，也正因如此英政府必须为它们负上法律责任。如果部长们拥有道德良知，他们理应立即作出道歉和解释；反之， 如果部长们欠缺了这份良知，死者家属们将通过上诉庭寻求听证会的设立，以完成高庭已开始的工作”。
此案起诉者之一的林国 表 示，他父亲林天水乃被英军成员斩首，他指出随着高庭的裁决，英国政府必须为他父亲的屠杀负责：“虽然高庭以技术性理由判决英政府不需进行任何听证会，但事 实上苏格兰卫队确实射杀了那些无辜的村民，包括我父亲在内。事实的真相正逼使英政府对失去父亲的我们作出一个诚意的道歉。既然英政府已对“血腥星期日”屠 杀事件以及荷兰政府也对1947年印尼拉瓦葛地（Rawagede）屠杀案负责和道歉，为何这次英部长们却不能？”
张 观英 的父亲，张文也是在这起屠杀案中无辜被射杀，她指出：“法庭的判决令我感到喜忧参半。令我感到较为安慰的是长年以来，诬陷我父亲为共产党份子的说法，在某 种程度上已被法庭否定。但是，令我感到失望的是法庭未能 如我所愿的指示英政府展开听证会。这起屠杀案还存有许多疑惑的事项，尤其是英政府须对屠杀负责，却没有像我们道歉和赔偿。这是不对与不公平的。”