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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