Latest from the Malaysian legal team on Supreme Court

By The 24 victims’ families of the Batang Kali massacre are hopeful and somehow optimistic that the UK Supreme Court would rule in their favour and that British Government be ordered to open inquiries into contentious killings by British soldiers in Batang Kali, Selangor, on 11 and 12 December 1948.  The families’ application for judicial review after the UK Government’s refusal to hold the inquiry was dismissed by the Divisional Court in 2012 and also lost their appeal to the UK Court of Appeal in 2014 but was invited to appeal to the Supreme Court.
Human Rights Duty
It was argued by the families that both Article 2 of the European Convention on Human Rights (ECHR) and Section 6 of the Human Rights Act 1998 (HRA) imposes a duty on the UK to commission an independent inquiry despite the killings occurring before the ECHR was drafted and signed and by virtue of Janowiec, such investigative duty arose because there was a connection between the killings, the original inadequate investigation, the UK’s signature and ratification of the ECHR and the subsequent failure to undertake an inquiry when the new evidence came to light, particularly in the 1970s and 1990s, which casts real doubt over the official account that the victims were killed when attempting to escape:
“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”
That new evidence included confessions by several of the British soldiers to murder.
In the Court of Appeal’s landmark decision on 19 March 2014, three Lord Justices led by Maurice Kay LJ, Vice President of the Court of Appeal actually observed the families’ above arguments and handed down a judgment stating that they would be “likely” to win if they took their case to that Court with the families showing the most important human rights of all – to life – as provided in Article 2 of the ECHR, has been breached.
The Court of Appeal however ruled that HRA 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 and furthermore it is bound by a Supreme Court precedent which predated recent European Court of Human Rights law, Re McKerr [2004] 1 WLR 807.  Hence the families’ appeal was dismissed.
The families’ solicitors, John Halford once said after the Court of Appeal’s landmark decision:
“Some might think it remarkable that present-day human rights standards could create a duty to investigate wrongdoing by British troops in a colonial village six decades ago and its cover up in the years that followed.  But those standards are rooted in far older British principles, specifically the right to life and to its protection by laws to be enforced on an equal basis.  The Batang Kali massacre occurred because, it Britain’s Empire, its principles were sometimes abandoned.  The question the Court of Appeal has had to grapple with is whether they could be abandoned with impunity.  It clearly thought not, but felt constrained by precedent to withhold a remedy.  The victims’ families will now follow the straightforward directions it has given them to seek a final, just outcome.  They will ask the Supreme Court to call the state to account for the killings.”
John also said:
“The unarmed Chinese labourers slaughtered were British subjects living in what was then a British Protected State.  Their killers were British soldiers, deployed by the British Cabinet to protect British interests.  Despite all of this, the Government will argue the law demands no accountability whatsoever because the killings are somehow not Britain’s accountability and happened a long time ago.  We trust the Supreme Court to see through this sophistry … [and] not permit an atrocity committed by our troops to be condoned and covered up in our name.”
This 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 ECHR applies retrospectively and the British Government would likely have to open inquiries into contentious killings by British soldiers in Northern Ireland (known as “the Troubles”).  This has therefore prompted the Attorney General of Northern Ireland, John Larkin QC to intervene in the case.  The 5 Senior Judges also heard submissions from Ben Emmerson QC for the Northern Irish human rights group, which representing the victims of the Northern Ireland Conflict during the hearing.
In an interview with the Guardian, Yasmine Ahmed, director of Rights Watch UK was quoted saying:
“The outcome of this case will have considerable implications in Northern Ireland, where many of the deaths that occurred during the Troubles happened before the enactment of the Human Rights Act in 1998.”
It is interesting to note that lawyers for the British Government used to argue aggressively that the soldiers were under local Selangor command, and not UK command and also contended that 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. However, both Divisional Court and Court of Appeal 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 of Selangor.  Such argument was fatal and rejected by the Court and it was held that the British Government should always remain responsible towards the unlawful killing in Batang Kali but not the Sultan of Selangor.
On a side note, UK was one of the first members of the Council of Europe to ratify the Convention when it passed through Parliament in 1951.
It is now obvious that only the UK Supreme Court itself can decide whether to change its jurisprudence so as to bring UK Law in line with the current ECtHR case law, in particular Janowiec and order an inquiry.
Let us look forward to a decision of the Supreme Court that serves the long overdue justice sought by the 24 victims’ families during their lifetime soon!
Halim Hong & Quek has been actively involved in seeking justice for 24 victims’ families of the Batang Kali massacre as our Managing Partner, Mr. Quek Ngee Meng is the Coordinator for the Action Committee Condemning the Batang Kali Massacre.  Of course, many righteousness journalists, social workers and lawyers, have also come to the families’ aid due to just and right cause.  I am grateful to be part of this team and given an opportunity to attend the hearing of the families’ appeal to the UK Supreme Court held on 22 and 23 April 2015.  The families are represented by Michael Fordham QC, Danny Friedman QC, Zac Douglas QC and John Halford of Bindmans LLP.

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