London – The 24 victims’ families of the Batang Kali massacre continued their battle against Britain’s foreign and defence ministries at the British’s highest court here and the two-day hearing finally concluded on 23.04.2015. A decision is now reserved to a date to be fixed.
The appeal was presided by five Supreme Court judges, Lady Hale, Lord Mance, Lord Kerr, Lord Hughes together with their President, Lord Neuberger.
Madam Lim Ah Yin aged 78, is the elder daughter to Lim Sang, one of the workers being killed on 12.12.1948, attended the hearing in the Supreme Court accompanied by her granddaughter, Ms Wong Lee Ling, voluntary lawyers from the Action Committee condemning the Batang Kali massacre, Quek Ngee Meng and Datuk Firoz Hussein. The families are represented by Michael Fordham QC, Danny Friedman QC, Zachary Douglas QC and John Halford of Bindmans LLP.
The families have fought for years for a public inquiry but have been denied by British courts. Despite the Court of Appeal did not order an inquiry to be held last year, the court said it was “probable” the families’ case would succeed before the European Court of Human Right as the families have satisfied the court that the British Government were in breached of the fundamental human right – the right to life.
The families’ counsel Mr Fordham QC told the UK Supreme Court that failure and refusal of the British Government to take action to inquire further into the Batang Kali massacre are unlawful. He also pressed for the families that Britain must account for the killings under the European Convention on Human Rights even though the convention was ratified about 4 years later.
Michael Fordham QC, said: “at least three of the soldiers who were on patrol and at least four villagers who were at Batang Kali were still alive and their oral evidence would be available to an inquiry as well as the man who led the 1993-1997 Malaysian police investigation has indicated his readiness to assist an investigation.”
“Professor Sue Black, one of the UK’s leading archaeologists from Centre of Anatomy and Human Identification at the University of Dundee who explained that significant conclusion could be drawn from the examination of gunshot wounds from large groups of people, and that the task would not be onerous were the bodies exhumed.”
“The site of the graves is known, the families have confirmed their agreement to exhumation and the Malaysian Government has offered to facilitate it. Therefore, Professor Black’s contemplation is practical.”
The lawyer for the families submitted that Britain’s refusal to investigate cannot be justified to the proportionality standard of review. He stressed that some of the evidence presented before this highest court showed that the soldiers released the unarmed villagers onto the veranda was to wipe the villagers out, just as they were wiping out the village.
Another conclusion could be easily reached is to shoot and keep shooting until all men, with half of them over 50 in age, were lying dead on the ground was unnecessary and disproportionate use of force to effect the arrest. The “escape” hypothesis argued by the British Government just couldn’t meet the proportionate test. With this applicable standard of judicial review, only then the public interest considerations can be ventilated in the proper, independent forum: the supervising court.
British Government’s arguments
Now it is a story of denying legal responsibility for the acts of the British soldiers. The lawyers for the Ministry Foreign Affairs and Defence argued that the families’ position must fail as a matter of constitutional principle. Their counsel, Jonathan Crow QC, tried goad to convince the Judges that Sultan of Selangor or the Malaysian High Commission remain responsible for the unlawful killings upon independence of Malaya in 1957.
The counsel argued that both 6 months rule under the ECHR and one year rule under the UK Human Rights Act have set in where the time limit for human rights relief available to the families had expired several decades ago.
Crow QC also argued that there is a territorial limit for British Government to conduct an inquiry because some investigations will have to be conducted in Malaysia and there is not power of compulsions in this sovereignty state.
Human Rights groups in Northern Ireland
The importance of the action to Northern Ireland is marked by the fact that its Attorney General John Larkin QC has attempted to limit the state’s human rights obligations. He argues that “As for the recovery of historical truth – a matter of great importance – this may be a matter better addressed through the library and the archive rather than the courtroom.” The Judges also heard submissions from Ben Emmerson QC for the Northern Irish human rights group, which represent victims of the Northern Ireland Conflict during the hearing, that even historical cases deserve justice.
Victim’s family Lim Ah Yin’s heartbreaking journey to the UK’s highest court began more than 60 years ago. She was 11 year old at the time of killings and it was her birthday. Lim said: My beloved mother was depressed over these years before she died in 2006. I want to let the Judges know the struggle and hardship that she had been through after the death of my dad during the massacre.