Supreme Court prepares to hear 1948 massacre survivors’ plea for British justice

From Bindmans

Date: 21 April 2015

Tomorrow (22 April 2015) Britain’s highest court will hear an extraordinary test case in which survivors of a 1948 massacre by British troops in colonial Malaya argue for a public inquiry into what happened and its six-decade long cover-up. The case has huge ramifications in Malaysia, where a campaign supported by 500 organisations has been pressing for justice for the survivors and their families, and in Northern Ireland, prompting an intervention in the litigation by its Attorney General and a response by the Pat Finnucane Centre and Rights Watch UK on behalf of families seeking accountability for British troops’ actions during the Troubles.

Amongst those who have travelled to attend the Supreme Court hearing is 78-year old Madam Lim Ah Yin. Her journey to the Supreme Court began in December 1948, when she was 11 years old, living on a British-owned rubber plantation in Selangor, Malaya. British troops surrounded and took control of her village, Batang Kali, separated the women and men, and began a series of interrogations to establish whether the villagers were supporting Communist insurgents. They included mock executions. The following morning she, her pregnant mother, one man and other women and children were put on a truck. The troops then took her father and 22 other unarmed men out from the longhut where they had been held overnight and shot every one of them. This incident is known as the Batang Kali Massacre (or ‘the British My Lai’). No-one has ever been prosecuted for it. The British government has never apologised. Indeed, in Court it will argue that the massacre is not legally its responsibility, despite Malaya then being a British Protected State, its nationals being British subjects, the troops involved being British, deployed on the instructions of the British Cabinet to protect British interests in the rubber trade.

The killings were portrayed as a military victory at the time, but in 1970 a number of the soldiers involved presented themselves, first to the press and then to the Metropolitan Police, to confess that they had murdered the villagers. The resulting police investigation was terminated prematurely by the government against the wishes of the officers involved. In 1993, a Malaysian police investigation began, but was also blocked by the British government.

Then, in 2008, a campaign began in Malaysia to press for a public inquiry into what had happened and its cover-up. The inquiry was refused by the government in 2010, but challenged in the legal case that reaches the Supreme Court tomorrow. No compensation is claimed; the remedy the families of those killed seek from the Court is an inquiry to secure truth, acceptance of responsibility by Britain and accountability.

Madam Lim Ah Yin said today:

“I have travelled here to stand before the most senior judges in the UK. I want to let them know the struggle and hardship that my beloved Mother suffered after the death of my Dad during the massacre. My Mother told me that she won’t be able to see the justice be done in her lifetime, and she passed away about a decade ago. I am 78 years old and I am determined to see the long overdue justice be done for my beloved father.”

John Halford of Bindmans LLP, the families’ solicitor, said today:

“Plainly, the bullets that killed half the inhabitants of Batang Kali can never return to their barrels and the time has long since passed when any soldier who fired them might be prosecuted. But when six of them have confessed to murder, eyewitnesses remain alive and forensic tests can confirm the killings were close-range executions, the law should demand answers from the state. After all, those killed were British subjects living in a British Protected State. They, and their families, have a right to meaningful British justice.”

Notes for editors:-

1. Madam Lim, her granddaughter and others from Malaysia will be outside the Supreme Court tomorrow morning at 9.30 AM for photographs and to answer brief questions from the press.

2. The appeal will be heard from 10.30 AM onwards by five judges in the UK Supreme Court, led by the President of the Supreme Court, Lord Neuberger. The other four panel judges are Lady Hale – the Deputy President of the Supreme Court, Lord Mance, Lord Kerr and former prosecutor, Lord Hughes.

3. The families argue that Article 2 of the European Convention on Human Rights imposes a duty on the UK to commission an independent inquiry, despite the killings having occurred before the Convention was drafted and signed. They came close to victory in March 2014 when the Court of Appeal led by its second most senior judge, Lord Justice Maurice Kay, handed down a judgment stating that they would be likely to win in the European Court of Human Rights, but could succeed not at Court of Appeal level in the UK legal system. Very unusually, the Court of Appeal granted permission to appeal against its own ruling. Noting that the important principles on which their case was based had never before been tested in a UK court (judgment, para 71), the Court of Appeal held it was “probable” their case would succeed in the European Court of Human Rights in Strasbourg (para 83), adding “the appellants have forged the first link in the chain” (para 85) to establish an inquiry duty.

4. The original investigation into the killings in 1948-49 was subjected to withering criticism. The Court of Appeal commented “[w]e cannot escape the conclusion that the investigation at that time was woefully inadequate” (para 75). Later investigations, by the Metropolitan Police in 1970 and the Royal Malaysian Police in the 1990s, though incomplete, had unearthed evidence which “cast doubt on the original account” of a mass escape attempt being thwarted (para 82). This evidence included six of the soldiers involved confessing the killings were “murder” committed “in cold blood” (paras 37 and 43). The Court observed:

“The confessions which arose in 1969-1970 were of potential significance and remain so, not least because the investigation within which they emerged was brought to an abrupt halt. They have never been tested or discredited. The sum of knowledge has been significantly increased by the work of the Royal Malaysian Police twenty years ago but they were unable to secure meaningful co-operation from the United Kingdom authorities” (para 82).

5. All this meant there was a connection between the killings, the original inadequate investigation, the UK’s signature and ratification of the European Convention on Human Rights and the subsequent failure to undertake an inquiry when the new evidence came to light:

“The ‘genuine connection’ test focuses not only on what took place, pursuant to the article 2 procedural obligation, after the critical date but also on what ‘ought to have taken place’. In view of the limited nature of the investigation which took place before the critical date and the potential significance of the new material which has emerged since the critical date but which has never been subjected to the full rigour of independent evaluation, it is our view that, whilst we cannot predict with certainty what the ECtHR might decide, it is probable that it would find the ‘genuine connection’ test to be satisfied in this case” (para 82).

6. But the Court went on to hold that the Human Rights Act could not be used to enforce the family members’ Convention rights because the Supreme Court had not given clear guidance on the extent to which it applied to past events, noting that a “move in that direction would now be a matter for the Supreme Court, rather than for us” (para 100) and “it is for the Supreme Court in an appropriate case, to decide whether to change its jurisprudence so as to bring it into line” with current European Court of Human Rights case law, in particular the Janowiec v Russia decision which also concerned a historical massacre (para 86).

7. The families are represented by Michael Fordham QC, Danny Friedman QC, Zac Douglas QC and John Halford of Bindmans LLP.

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