From : Free Malaysia Today
[Supreme Court may revisit law in the light of European court ruling in Polish case.]
LONDON: Unlikely as it may first appear, a small town in Hulu Selangor will become the focal point of what may turn out to be a landmark human rights court case in the United Kingdom later this week when the UK Supreme Court revisits the circumstances surrounding the Batang Kali massacre in 1948, reports The Independent.
A quick dive into the annals of history will show that after World War II ended, the British returned to recover control of Malaya from Japanese forces only to find that guerrillas whom they had supported in the fight against the Japanese had turned to communism in a bid to oust the British themselves.
British-owned rubber plantations and tin mines were targeted, leading the authorities to declare a state of Emergency in June 1948 to curb the escalating violence.
In December 1948, a 14-member Scots Guards patrol entered a rubber plantation and rounded up all civilians. The men were separated from the women and children for interrogation about communist guerrilla activities operating locally.
The next morning, after the women and children had been driven away, 24 men were executed and the village was burnt down.
British authorities have previously accepted the army’s explanation that the men were insurgents who were attempting to escape detention.
Relatives, however, claim that they were civilians massacred in cold blood.
In 1970, an on-going investigation was suddenly halted when a new Conservative government took office.
Even an investigation into the incident by the Malaysian Police in 1993 had to be closed after the police received “virtually no assistance from the UK authorities.”
Families of the victims were reported to have petitioned the Queen twice prior to commencing the present legal action. On both occasions, no response was received.
In 2012, the families then took the challenge to the High Court but the case was dismissed. The Court of Appeal did likewise on March 19, 2014.
Despite this, relatives have some cause for optimism that the Supreme Court will decide differently.
According to The Guardian, this is due to a decision of the European Court of Human Rights in a case called Janowiec, which involved a massacre by the Russian army of Polish prisoners.
In that case, the court decided that Russia was under no obligation to investigate a massacre which took place some 58 years before Russia ratified the human rights convention.
The court, however, suggested that ratifying states may be required to investigate breaches of human rights which occurred a “reasonably short” time – not more than 10 years – before ratification.
The UK ratified the human rights convention less than five years after the killings at the Batang Kali massacre occurred.
In dismissing the appeal, the UK court of appeal held that it was bound by earlier decisions of the Supreme Court which held that UK’s Human Rights Act 1998 does not operate retrospectively.
The families were, however, invited to appeal to the Supreme Court to allow that Court to test its previous rulings in light of the Janowiec case.
The Court of Appeal even went as far as acknowledging that the Batang Kali case would probably succeed if it was taken up in Strasbourg, the seat of the European Court for Human Rights.
Lawyers for the British Government argue that the legal action has no merit because the incident occurred prior to ratification by the British Government of the Human Rights Convention. They also argue that the troops were under local Selangor command, and not UK command.
The case also has wide significance within the United Kingdom. If the Supreme Court rules in favour of the families, it would also mean that the British Government would likely have to open inquiries into contentious killings by British soldiers in Northern Ireland.