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.”
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