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Tuesday, 4 September 2012

Batang Kali - the judgement

This has just appeared on the Bindmans web site:


Sir John Thomas, President of the Queens Bench Division, and Mr Justice Treacy today gave judgment on a judicial review of the Government’s position on the killing of 24 civilians by British troops in 1948. The Court ruled that, given conflicts between European Human Rights Convention and UK law, there is no legal obligation to hold the public inquiry into the killings that the family members of those killed have campaigned for. 
But the Court’s 176-paragraph judgement examines the current documentary evidence in forensic detail, concluding it “can no longer be permissible” for the “official account” of events given to Parliament to be maintained. 
Ministers’ attempts to evade legal responsibility for the killings by arguing a Malayan Sultan commanded the troops involved are also firmly rejected:
“given that what is in issue is the actions of the Scots Guards in shooting civilians, on ordinary principles those responsible for the command of the troops who did the shooting, ultimately the Army Council, have the responsibility for their actions.”
On what those actions involved, the judgement continues: 
“[t]here is no evidence, 63 years later, on which any of the 10 key facts relating to what happened at Batang Kali can seriously be disputed.”
These “key facts” include the inhabitants of Batang Kali (not “bandits”, but “families” of “civilians” who “had no weapons”) being subjected to “simulated executions to frighten them.” The next day women and children were taken away in the only available vehicle, the village hut where the male villagers were held “was unlocked” and:
“[w]ithin minutes, all of the 23 men were dead as a result of being shot by the patrol.”
The Court also reviewed evidence of the men having been walked from the hut to their deaths by patrol members, five of whom confessed in 1970 to murder, corroborating other eyewitness accounts. It commented “[t]here is evidence that supports a deliberate execution of the 24 civilians at Batang Kali.” The decision to hold no public inquiry after the termination of the 1970 police investigation of this evidence was, in the view of the Court, “difficult to justify.” Then, when a further investigation was launched in 1993:
“a decision was made by the relevant Departments of the British Government to progress any inquires with as much delay as possible and to take an uncooperative attitude towards the… Royal Malaysian Police.”
Family members of those killed are now pressing Ministers to accept the facts found by the Court, take full responsibility for the massacre and the scuppered past investigations, acknowledge Parliament was misled, and apologise.
The families’ UK solicitors are John Halford and Stephen Grosz of Bindmans LLP. Mr Halford said today:
“63 years ago the surviving villagers of Batang Kali began petitioning the British authorities to explain these killings and accept they were wrong. No direct answer was ever forthcoming, but Parliament was told they were a necessary step to thwart an escape attempt by suspects – Communist ‘bandits’ or at least their supporters. This official account was legitimised by its repetition decade after decade coupled with the obstruction and premature termination of two police investigations. But as this judgement shows, ministerial filing cabinets cannot hold stubborn truths indefinitely. Many of the shameful events at Batang Kali have now been firmly established, as has the UK’s ongoing legal responsibility for them. What is also now clear is the scale of the ongoing injustice experienced by the families of Batang Kali. If Ministers can find the moral courage within themselves to address it, they can do so immediately. If they fail to act decisively to end the ongoing injustices at the heart of this case, the survivors and families of the Batang Kali massacre will continue to pursue legal action and complete the work this Court has begun.”
   
Speaking for the Action Committee Condemning the Batang Kali Massacre, which are supported by 568 Malaysian organisations ranging from schools, temples to professional and other associations, Malaysian lawyer Quek Ngee Meng said today:
“As the Court decisively found that the British Government is responsible for the death, the Action Committee calls for the British Government to acknowledge and accept the legal responsibility of the unlawful killing, and offer an apology to the families of those killed. This will be the only graceful and honourable response to the judgment from the Cameron Coalition Government. Any response falls short than that will certainly and continuously haunt the good relationship between the UK and Malaysia.”
The third of the four family members who brought the claim is Lim Kok. The body of his father, Lim Tian Shui, was found beheaded. Mr Lim expressed relief today at the Court’s decision that the UK was responsible for his father’s death, adding
“Though the Court also found the Government did not need to hold an inquiry on technical grounds, the fact is that the Scott Guards shot innocent civilians, my father included. That truth demands that there be a meaningful apology to me and all those who lost their fathers and breadwinners. This Government offered such an apology to the families of the Bloody Sunday massacre and the Dutch Government did the same for the families of the 1947 Indonesia Rawagede massacre. What is holding Ministers back from doing the right thing?”
Chong Koon Yin, whose father Chong Voon was also killed during the massacre, said today that:

“The judgement has filled me with a mixture of relief and disappointment. Relief because the stigma attached to my father has been lifted to some extent by the Court’s findings and its rejection of the official account. But I am disappointed with the finding that no inquiry required into the death of my father. There remain many unanswered questions. The truth has not been fully revealed.  Without an inquiry or a proper acceptance of fault, the Government held legally responsible for the killing remains unaccountable. That is not fair or right.”