Batang Kali massacre: UK appeal court dismisses application for public inquiry

Batang Kali massacre: UK appeal court dismisses application for public inquiry.

Survivors and descendants of 24 tappers killed by the British Army in Batang Kali in 1948 are urging the British government for a speedy resolution to the massacre issue.

KUALA LUMPUR, March 20 — A British Court of Appeal dismissed an application by family members for a public inquiry on the killings of 24 unarmed civilians by British troops in Batang Kali, Selangor, in 1948.

A three-man bench headed by Lord Justice Maurice Kay also disagreed with counsels acting for the British government that the Malaysian government and the Sultan of Selangor were accountable for the deployment of the troops to Selangor.

“We are not persuaded with the respondents’ argument that the decision to deploy the troops in Malaya was mediated through the High Commissioner.

“The deployment was a deployment of troops of Crown in right of the government of United Kingdom, with the consequence that the Crown become accountable for the actions of the troops,” as stated in the findings of the court which was made available to the press here today.

Quek Ngee Meng, the co-ordinator of the Action Committee Condemning the Massacre, told a media conference on the decision by the British Court of Appeal, that the Appeal Court, in its ruling yesterday, also stated that the court was bound by precedence of earlier court cases which forced them to dismiss the application.

However, he said the judges had reinforced the finding of facts by the lower court where those killed were civilians, unarmed and posed no threat to the soldiers.

They (panel) also stated that all the victims were killed within minutes after they were released before their village was burnt down, he added.

Ngee also pointed out that the panel shared the view that the past investigations on the massacre was ” woefully inadequate”, “one-sided” and ”unfinished”.

Ngee, also a lawyer by profession, said new evidence and confessions made by several British soldiers revealed that the civilians never posed a threat and this cast real doubt over the official account of the incident which said the victims were killed while they attempted to escape.

In 1948, the Second Battalion of the Scot Guards shot and killed 24 civilians in the Sungei Remok Rubber Estate in Batang Kali.

Meanwhile, Datuk Ahmad Firoz Hussein Ahmad Jamaluddin, who is the legal adviser to the action committee, said they had received instruction from family members to appeal to the Supreme Court.



UK Court of Appeal: Massacre Families Would Have Won in European Court of Human Right



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。


三位上诉庭法官也支持高庭两位法官所裁决的实情。这些实情包括那些被射杀的罹难者都是平民、没拥有武器、未对士兵构成任何威胁、被模拟处决恐吓、被扣留通宵、所有男村民在被解锁后一瞬间枪毙,以及住所被烧毁。上诉庭法官们对英政府曾在此案所作的调查报告以“严重不足” 、“存有偏见”及“未完成”的词句提出严厉的批判。