LONDON, MAY 10 — The UK government has suggested that the Sultan of Selangor was responsible for the actions of British soldiers in what is now known as the Batang Kali “massacre” of 24 civilian rubber plantation workers during the Malayan Emergency in 1948.
On December 11-12, 14 Scots Guards surrounded and captured the Sungai Remok rubber estate. The women and children were separated from the men, who were shot and killed in a burst of violence. Bodies were mutilated, one beheaded. The village was torched to the ground.
The official line was that the men were communists or sympathisers who were trying to escape, but other accounts have since surfaced depicting a cold-blooded mass killing without cause. Many have called it “Britain’s My Lai”, an allusion to the annihilation of the Vietnamese hamlet by US troops during the Vietnam War.
In the High Court here yesterday during the judicial review of the UK government’s continued refusal to investigate the killings, counsel for the defendants, UK Secretaries of State for Defence and Foreign & Commonwealth Affairs, declared that any claim relating to the incident at Batang Kali should have been litigated in the courts of Selangor under its laws.
“Had proceedings been brought in England against the [Sultan] of Selangor, a plea of sovereign immunity would have succeeded.”
He went further to tell the court that even if the British government had been responsible for the actions of its Scots Guards in Malaya at the time, all rights, liabilities and obligations passed to the Federation of Malaya when it became independent in 1957.
The defendants maintain that during the Emergency, Selangor was a “protected state” of the British government and therefore a “separate legal entity.” As such, the British government’s jurisdiction was limited to Selangor’s external affairs and its defence from external attack; the government had “no direct policy over its internal affairs.”
The claimants and defendants both agree that British troops were deployed to Malaya during the Emergency in aid of the civil power, not in an act of war. Deputised as police officers, these British soldiers were there to keep public order, so their powers were essentially the same as the Malayan police. What they disagree on is the capacity in which these troops were carrying out orders at the Sungai Remok estate.
Mr Justice Treacy put this question to the defendants’ counsel: “British troops in Malaya also had to defend external threats. How do you distinguish when they are operating internally and when they are operating externally?”
The defendants take the position that the Scots Guards at Batang Kali were operating internally and formed part of a local police patrol under the authority of the Sultan of Selangor; they were acting as “agents” of the Sultan. However, their counsel was unable to produce evidence to that effect.
The president of the Queen’s Bench Division, Sir John Thomas, said: “You can’t run an empire without knowing who controls the troops. There must be an answer to this.”
He added: “We are not satisfied that what you are telling us is right. I am not criticising you. I am criticising those in the Ministry of Defence and Foreign Office who must know what the answer is.”
The judicial review proceedings concluded yesterday, but further answers on this point will be dealt with in written submissions on May 19. Judgment was reserved and no date has yet been provided.
The defendants’ counsel also said that the Ministry of Defence and the Foreign Office do not defend the facts of what happened in 1948 but maintain that they were entitled to refuse to hold a public inquiry “notwithstanding the seriousness of what then occurred.”
They maintain that they have exercised their discretion lawfully, taking into reasons such as the costs of conducting an inquiry, the two competing sets of facts, and the difficulty of finding out the truth due to the fact that many witnesses are now deceased and those who are still alive would be unreliable considering that more than six decades have passed.
The defendants pointed out that they have not so much been affirming the official account, as the claimants alleged, as accepting that they cannot be certain about the accuracy of other accounts.
As such, they defend their decisions not to hold a public investigation as “rational” because if they were to simply accept the claimants’ account, they would in effect be “condemning all of the soldiers as murderers without a hearing and publicly expressing the view — contrary to international comity — that acts of murder had been committed on behalf of the Ruler of Selangor and/or that the Malaysian government was now liable for acts which amounted to murder.”
Three out of four of the remaining claimants — Loh Ah Choi, 71, Lim Ah Yin, 76, and Chong Koon Ying, 74 — have travelled a long way from Malaysia to London for the judicial review. They sat in the front row before the two judges and were in attendance for the full duration of the legal proceedings despite being unable to understand English, and despite having been awake since 4am because of jet lag. They were accompanied by Quek Ngee Meng and Firoz Hussein, two Malaysia-based lawyers and co-ordinators of the Action Committee Condemning the Batang Kali Massacre.
Summing up on behalf of the claimants, Michael Fordham QC told the court: “The story simply doesn’t add up. Why was it necessary to shoot to kill, until all 24 men were dead? Why was it subsequently called a ‘mistake’?”
“Inertia,” he said, has characterised the Batang Kali case over the decades, “because there may be an inconvenient truth.”
He also suggested that if a public investigation were to be called, former Communist Party of Malaya secretary-general Chin Peng could be a potential witness to offer an insight into the nature of the “banditry” at the time.
Amidst all this, one wonders where the Malaysian government stands.
Ian Ward, a Southeast Asia war correspondent from 1962 to 1987, and Norma Miraflor point out in their book “Slaughter and Deception at Batang Kali” that the situation in Malaysia mirrors that in the UK. The political will to carry out a full investigation into the incident has been absent.
Investigations, such as the 1970 one in Britain and the 1993 one in Malaysia, were fuelled by the police — and in Malaysia’s case, the Malaysian Chinese Association. Both investigations were eventually closed by the countries’ authorities, purportedly because of insufficient evidence.
The defendants’ counsel told the court that a public inquiry would not achieve very much because it would not serve up useful lessons to avoid the repetition of such events since the Batang Kali massacre happened in a very different time and place, with a different legal and military culture.
Fordham disagreed. “How about a lesson that the truth will out? That even with the lapse of time, something this significant won’t just go away? How about a lesson like that for everyone?”
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