Legal comments on Batang Kali

By Marcus Tan Kian Han

Background Story

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.”

The families took up the matter to UK Court of Appeal and it was heard by three presiding judges, the Vice President of the Court of Appeal, Maurice Kay LJ, Rimer LJ and Fulford LJ on 26 to 28 November 2013. Lim Kok, being the 3rd claimant and also the representative of the families attended the hearing in Royal Courts of Justice, London accompanied by voluntary lawyers from the Action Committee Condemning the Batang Kali Massacre, Quek Ngee Meng and Datuk Firoz Hussein. The claimants/appellants were represented by Michael Fordham QC, Danny Friedman QC, Professor Zac Douglas, Stephen Grosz and John Halford of Bindmans LLP.
The three Lord Justices led by Maurice Kay LJ delivered a landmark decision on 20 March 2014. In the judgment, the Court accepted that in light of the recent European Court of Human Rights Grand Chamber decision in Janowiec (2013), the families 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.

It is nevertheless a positive indication from the Court of Appeal, despite the judges have dismissed the families’ appeal due to a legal blockade.

The Court of Appeal endorsed the finding of the Divisional Court in ruling the Scots Guards involved in the unlawful killing 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”. Therefore, the UK Government’s cross appeal in alleging the Malaysia Government or Sultan of Selangor were somehow responsible for the killings were therefore roundly rejected.
Further, the Court put forward the underlying rationale in coming to such conclusion, which the Honourable Court found out that the deployment of Scots Guards to Selangor was by the Crown in right of the British Government but not laid with the High Commissioner or Adviser in Selangor. The British Ministers’ attempts in contending the rights, liabilities and obligations within the Malay States have been transferred to the Federation of Malaya under Article 167(1) of Malayan Constitution upon independence in 1957 were fatal and not accepted by the Court.

On such basis, it was held that the British Government should always remain responsible towards the unlawful killing in Batang Kali but not the Sultan of Selangor.
Be that as it may, the Court of Appeal dismissed both parties’ appeal and cross appeal. The Court is legally bound by an outdated Supreme Court precedent of Re McCaughey (2012) which predated recent European Court of Human Rights law. Under the doctrine of binding precedent, the Court of Appeal being an inferior court to the Supreme Court would have to adhere to the superior precedent unless otherwise suggests.

Therefore, the presiding judges’ hands are tied and could not rule in favour of the families. As such, it is an appropriate decision for the families to continue their effort in seeking redress and justice for their beloved ones to the Supreme Court and if needful, the European Court of Human Right.
The journey shouldn’t be intercepted or constrained by a mere legal blockade, ie the binding precedent made by the Supreme Court. Apparently, the families have indeed removed a number of those unprecedented blockades, right from petitioning the Queen of UK until to airing their grievances before the court of law. In fact, the truth have been revealed and accepted by the judicial authority. The families are in no position to halt the journey.

In view of the circumstances, the Supreme Court will be urged by the families to assist the present UK human rights law to reach to the same breath with the European standard. Otherwise, the families would have to inevitably seek satisfaction from the European Court of Human Right.

No matter how tough the journey is, it has not come to an end. The destination is not too far either.

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