Batang Kali – the Appeal

24 unarmed villagers shot dead, six confessions by the British soldiers responsible and two aborted police investigations. Will the UK’s Court of Appeal end the 64 years of injustice that surround the Batang Kali massacre?

John Halford, a solicitor acting for the families of the Batang Kali massacre victims sets the scene for next week’s Court of Appeal hearing.
On 11 December 1948 a platoon of Scots Guards surrounded and entered the Malayan village of Batang Kali.  They directed its inhabitants, unarmed workers on the local rubber tapping estate, into their ‘Kongsi’ longhuts, separating the men from the women and children. The following morning when the Guards left, the huts were in flames and the bodies of 24 of the men, aged 17 to 70, lay in groups nearby, riddled with bullets.  One had been beheaded. To this day, this atrocity has been the subject of no Government apology and no acknowledgment of wrongdoing. Nothing whatsoever has been done for the families of those killed. And by 1970 UK civil servants were circulating a memo predicting that the massacre would be quietly forgotten about. They were very wrong. Next week the UK’s Court of Appeal will hear an appeal by family members of those who were killed in which they argue for an independent inquiry to determine the truth of what happened and why it was suppressed. The hearing begins on Tuesday, 26 November 2013.
The families of Batang Kali have now been seeking justice for 64 years. As long ago as January 1949 they pooled their resources and sent a small group of representatives by taxi to Kuala Lumpur to petition the British Authorities to seek an explanation for the killings and some form of justice.  The authorities refused to meet with them. But in this way a journey began which, in April 2012, took four of them to the steps of the Royal Courts of Justice in London for a Divisional Court hearing of their Judicial Review claim seeking a public inquiry or some other meaningful investigation.
The outcome of that hearing was a mixed one from the point of view of the families.  On the one hand, a number of critical findings were made in the Court’s judgment for the very first time in relation to the actions of the troops on 11 and 12 December 1948.  The Court said that certain facts were indisputable, despite the passage of time and the evidence available to them being in written form.  Most significantly:
·      Those “shot and killed” at Batang Kali were “24 civilians” who “did not wear uniforms, had no weapons, and were a range of ages”;
·      On the first night “a young man was shot dead by the patrol” and left to lie on the ground in front of the huts;
·      “Interrogation of the inhabitants took place” during which time “there were simulated executions to frighten, causing trauma”;
·      In the morning, the women and children and one traumatized man were loaded onto a lorry that arrived from the village then “[t]he hut with 23 men was unlocked.  Within minutes all of the 23 men were dead as a result of being shot by the patrol.”
and as for the so-called 1948 ‘on the spot inquiry’ into the killings:
·      “No consideration was given… as to whether the actions of the soldiers in shooting the inhabitants of the village was necessary and proportionate in circumstances where every single person was killed rather than some being wounded”;
·       “The attitude taken… to the inhabitants of the village, as set out in paragraph 35.i) [that they would be unlikely to tell the truth and were therefore not worth interviewing] …cannot be justified. That attitude and the failure to take evidence from inhabitants significantly undermines the objectivity of the inquiry”; and
·       The allegation that the Scots Guards had themselves covered up the killings was a serious one, but could “properly be made on the evidence”.
Two further attempts to investigate the massacre were made by the police. First, in 1970 several of the soldiers involved came forward and confessed to murder. But bizarrely the investigation was aborted before their commanding officers and any Malaysian witnesses were interviewed. The Scotland Yard detective leading the investigation made his views about why clear in an internal report: there had been political interference at the highest level.
Then, in the 1990s, the Malaysian police began investigating. But they too were stopped in their tracks before the soldiers were interviewed. On this the Divisional Court found it “difficult to escape the conclusion that a decision was made by the relevant Departments of the British Government to progress any inquiries with as much delay as possible and to take an uncooperative attitude towards the inquiry by the Royal Malaysia Police…” so they “obtained virtually no assistance from the United Kingdom authorities”.
The Divisional Court’s most important finding of all was that the “official account” given by the British authorities, repeated in Parliament in 1949 and maintained ever since was now unsustainable.  That demonstrably false account had been that the killings were an appropriate, justified response to an escape attempt by suspected communist insurgents.
So much for the facts.  In legal terms, the Divisional Court began by making another positive finding in its judgment, holding that despite technical and evasive arguments by the Government, it was absolutely clear that the responsibility for the actions of the British troops at Batang Kali lay firmly with the UK and still did (this point is being appealed by the Government: it claims Britain was not responsible for the actions of its own army).
But despite the UK bearing that responsibility, the Divisional Court went onto say that it did not lead to a duty to complete a proper investigation or hold the public inquiry which the families are pressing for.  This was because the Court considered there was a conflict between existing House of Lords case law on the effects of the Human Rights Act on the one hand and recent European Court of Human Rights case law on the other.  This conflict, they indicated, could only be resolved by a higher court.  They went on to examine the reasons given by the Secretaries of State for not holding a further investigation or inquiry on the premise that there was no duty to do so but instead a mere discretion.  On this, the Court asked itself what standard of proof an inquiry would adopt and decided it would need to reach “definitive conclusions” to be useful.  The challenged decision not to investigate further, or hold an inquiry, was therefore found lawful.
What now?  First, the Government’s response to the Divisional Court judgment has been a resounding silence.  There has been no reconsideration, less still an apology for what the Court found indisputably to have occurred.  The duty to correct false statements made to Parliament, set out in clear terms in the Ministerial Code, remains undischarged.  Unsurprisingly, the families of Batang Kali and their supporters are not satisfied with this state of affairs. In Malaysia 10,000 individual citizens have added their voices to the 500 plus organisations that support the Campaign for justice. And well respected international human rights organisations – Amnesty International, Minority Rights Group and Reprieve – have made representations to government ministers pressing them to engage in talks to bring about an honourable, if belated, settlement. All have been rebuffed and the Government has unequivocally refused settlement talks.
This has prompted the families to press on to the Court of Appeal next week: whilst they believe Divisional Court judgment was an important milestone, they do not accept it is an appropriate or just end point for the journey begun by taxi to Kuala Lumpur 64 years ago.
First, that is because the position taken by the European Court of Human Rights on the importance of investigation into serious human rights abuses is clear and principled: there are some acts committed in the name of the state of such seriousness that investigations, once begun, must reach a conclusion so that the concerns of survivors and family members, and the public at large, can be put to rest.  If the massacre at Batang Kali is not such an act, what is?  This clearly is something that needs to be grappled with by the UK’s higher courts.
Secondly, the approach that the Divisional Court took to the role of public inquiries was not based on any previous case or legal principle.  In fact, public inquiries from Saville to Shipman to Baha Mousa have consistently approached their fact-finding and conclusion-reaching role in a way that is sensitive to the different sorts of evidence available to them and have not been shackled by standards of proof used in civil and criminal proceedings.  No public inquiry in the UK has ever been asked to or actually reached conclusions to a standard of ‘definitiveness’.  Further, inquiries have benefits that are not directly concerned with their abilities to reach conclusions, such as the facility for those affected and their family members to have a proper voice and to hear the evidence that is available.
Last, but most importantly, the Batang Kali massacre was, and remains, an affront to the Rule of Law, something that is the cornerstone of any properly functioning democracy.  This demands proper and meaningful accountability for state wrongdoing.  If those acting on its behalf can take life with impunity, or fail in their duties to prevent its loss, then face no real investigation and have no independent, robust conclusion reached on their actions, that principle becomes hollow – something for citizenship classes and textbooks perhaps, but not a source of rights for individuals.
Ironically, the present Government has shown itself willing to accept responsibility and fault, and to say sorry: the Prime Minister’s responses to the Bloody Sunday and Hillsborough stadium reports and, even more pertinently, the settlement of the Mau Mau torture cases all demonstrated that.  The silence on Batang Kali is therefore all the more surprising. It is shameful that villagers in their seventies must now look to the Court of Appeal to end it.
The Batang Kali families are represented by John Halford and Stephen Grosz (Bindmans LLP),  Michael Fordham QC (Blackstone Chambers) and Danny Friedman QC and Professor Zac Douglas (Matrix Chambers).

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