Human Rights Duty
Wednesday, 8 July 2015
Sunday, 19 April 2015
Lawyer John Halford writes:
I write to give you a heads-up on what’s happening in the Supreme Court this week.
You’ll recall the Batang Kali case well. Tomorrow one of the oldest survivors who was there as a child - is Madam Lim Ah Yin, 78 - will be arriving in the UK for the Supreme Court hearing of the appeal which takes place this Wednesday and Thursday.
Her remarkable journey to the Britain’s highest began in December 1948, when Madam Lim was 11 years old and living on a rubber plantation in colonial Malaya. You’ll recall that British troops surrounded and took control of her village, separated the women and men, and began a series of interrogations about whether the villagers were supporting Communist insurgents. They included mock executions. The following morning she, her 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 hut where they had been held overnight and shot every one of them. No-one has ever been prosecuted for it, despite six of the soldiers confessing to murder in 1970. The British government has never apologised for it. Indeed it still argues that the massacre is not even its responsibility legally, 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.
Besides the human and colonial dimensions, the outcome of the case will be very significant legally, especially in Northern Ireland. This has prompted a personal intervention by the Northern Irish Attorney General (who will be in Court to argue against there being a historical investigation duty) and a counter intervention by Rights Watch UK and the Pat Finnucane Centre.
Tuesday, 14 April 2015
By Marcus Tan Kian Han
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.
Saturday, 14 March 2015
According to John Halford on the Bindmans' web site:
On 19 March the Court of Appeal led by its second most senior judge, Lord Justice Maurice Kay, handed down an extraordinary judgment on the Batang Kali massacre case, Chong Keyu and others. Two weeks later, it took the rare step of granting permission to appeal against its own final Order, giving a green light to a Supreme Court appeal likely to take place later this year. These developments represent a turning point in a sixty five year campaign for justice by survivors, family members and thousands of supporters in Malaysia. Here the families’ solicitor, John Halford, explains why.
At their appeal hearing last November, four family members of the 24 unarmed civilians shot dead by British soldiers at Batang Kali village argued that Article 2 of the European Convention on Human Rights imposed a duty on the UK to commission an independent inquiry or investigation into what had happened. The investigatory duty was said to apply despite the killings having occurred before the Convention was drafted and signed.
This was a novel argument, never considered before by a UK court, but strongly founded on developments in Strasbourg (especially the Katdyn massacre case, Janowiec v Russia) and the Inter American Court of Human Rights (Moiwana Village v Suriname). These cases concern a duty to investigate serious wrong doing in the past, which arises from investigations being unfinished when human rights commitments are made by the states involved, or when new evidence comes to light. Deaths that pre-date those commitments may still need to be investigated properly.
From a common sense perspective, this is not surprising: the original investigation into the Batang Kali killings, undertaken by the colonial Attorney General in 1948-49, was subjected to withering criticism in 11 paragraphs of the judgment ending pithily with “[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).
So despite the passage of time, there is clear a connection between the killings, the original inadequate investigation, the UK’s signature and ratification of the European Convention on Human Rights, including the Article 2 duty to safeguard life, and the subsequent failure to undertake an inquiry when the new evidence came to light.
The Court of Appeal agreed, holding it was “probable” the families’ 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 enforceable here:
“The ‘genuine connection’ test [from the Janowiec case] 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).
But the Court of Appeal 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.
The Court concluded by rejecting arguments that the refusal to hold an inquiry was irrational under the common law and dismissing the Secretaries of States’ defence that the Malayan High Commissioner or Sultan of Selangor had been legally responsible for the troops actions:
“The deployment was a deployment of troops by the Crown in right of the Government of the United Kingdom, with the consequence that the Crown became accountable for the actions of the troops” (para 138).
In short then, the UK was responsible for the killings in 1948 when they occurred and, when it signed up to human rights duties under the European Convention a few years later, the failed investigation became unfinished legal business. The UK’s obligations grew more onerous when, in the 1970s and 1990s, evidence emerged that the killings were a massacre. But there was no adequate response, despite the obvious seriousness of the incident.
The Batang Kali massacre occurred because, in Britain’s Empire, its principles were sometimes abandoned. The question the Court of Appeal had to grapple with was whether they could be abandoned with impunity. It clearly thought not, but felt constrained by precedent to withhold a remedy. That uncomfortable result explains the unusual grant of permission to appeal to the Supreme Court to enable that Court to bring UK law in line with developments in Strasbourg.
For the victims’ families, justice so long delayed and denied, is now finally in sight.
Sunday, 25 January 2015
I received the following email from John Halford who represents the families of victims of the Batang Kali killings...
I write with some news on progress.
The Supreme Court has listed the families' appeal for a two-day hearing on 22nd and 23rd April. It will probably be heard by a 5 or 7 judge Court. The judgement is likely to be forthcoming 2-4 months after the hearing.
Maddeningly, the government is reviving their bankrupt arguments about the Sultan of Selangor or the High Commissioner of Malaya being responsible in law. They also have an ally on the main arguments in the form of the Attorney General for Northern Ireland, who is intervening to argue against there being a duty to investigate pre-Human Rights Act deaths (because of the implications this would have in Ireland).
Here are some details of the Court, which is in Parliament Square:-