Wednesday, 8 July 2015

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.

Sunday, 19 April 2015

Link to Supreme Court Summary

Batang Kali Supreme Court hearing soon!

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

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.


Saturday, 14 March 2015

More on the Supreme Court

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

News about Batang Kali case

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:-