As I walked into the magnificent Gothic entrance to the Royal Courts of Justice in London, it was difficult not to think of Dickens 'Bleak House' and the infamous 'Court of Chancery'. To be sure, the Royal Courts of Justice was built more than twenty years after Dickens published his excoriating account of the foggy world of English law in practice in 1852/3. The splendid building was designed by solicitor turned architect George Edmund Street in the Gothic style no doubt to evoke the historical depth of English justice. In fact Dickens' attack on the murky and fustian world of English 'justice' was judged out of date when he published 'Bleak House' - but the link between the case that underpins his story of 'Jarndyce and Jarndyce' and the struggle to persuade the British government to agree to an enquiry into the Batang Kali massacre is worth pondering. As Ian Ward and Norma Mirafor write in their book' Deception and Slaughter at Batang Kali', this is a 'very British cover up. In the case of Dickens' 'Court of Chancery', it is said: "Suffer any wrong that can be done you rather than come here!" His main satirical complaint is the inordinate length of the proceedings:
'The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless...'
The Batang Kali case has now 'dragged on' for over six decades. Many of its victims, the women and children left destitute after the massacre in 1948, have died. This week's trial revealed a great deal more about how and why successive British governments have covered up, misrepresented and obfuscated the events that took place on 11/12 December 1948.
The Malaysian government - which stopped a Malaysian police enquiry in the 1990s - is almost equally to blame. In a National Archives file, I discovered copies of telegrams sent by Tunku Abdul Rahman insisting that raking up memories of Batang Kali could serve no useful purpose. This was a war opined The Tunku - bad things happen. As the lawyers for the complaints repeatedly insisted in court this week, the survivors of and witnesses to the massacre have been constantly stigmatised: in one telling document, we find a comment that the witnesses 'were never given an official opportunity to tell their side of the story due to fear of what they would say'. Quite.
It would be problematic I suspect to comment on the case for the defendants, namely the Foreign and Commonwealth Office. But it was remarkable to hear their lawyers argue that responsibility lay with the Sultan of Selengor, a British protected Malayan state in 1948, not a colony. As their 'skeleton argument' puts it:
"It is also common ground that the Scots Guards were only present in Selangor in
support of the Ruler of Selangor. As the Claimant accept in their Amended Grounds
[1/A/77, §6], they were deployed “to assist the civilian authorities in maintaining public
order”, and were regarded as part of the local police force and under their control
[2/R/84]. That is, the Scots Guards were not deployed in pursuance of Her Majesty’s
jurisdiction over the external affairs and defence of Selangor, but were deployed by the
local authorities pursuant to their own jurisdiction over internal public order. As the
Claimants themselves point out, it would appear that on the day in question, the
troops formed part of a local police patrol (Skeleton Argument, §2.23): “The patrol
operated in conjunction with the local police. It was guided by a Malay Special Constable, Jaffar bin Taib. It was accompanied by a Detective Sergeant, CP Gopal (Call Sign No. 51) and another Chinese Detective, Chia Kam Who (Call Sign No 182).”
This led to a sharp exchange with one of the judges - the president of the Queen's Bench Division Sir John Thomas. The government barrister appeared confused when pressed on the matter of who was in control of the Scots Guards operation. Was he really suggesting this lay in the hands of the Sultan? Reconstructed from my notes: “We are not satisfied that what you are telling us is right. I am not criticising you: I am criticising those in the Ministry of Defence and Foreign Office who must know what the answer is...' He went on: 'You can’t run an empire without knowing who controls the troops. There must be an answer to this!' The defendants' lawyers repeatedly stressed that any enquiry could serve no useful purpose - since the events took place so long ago, no lesson could possibly learnt.
At the end of the second day, the lawyer representing the complainants made this telling argument:
“How about a lesson that the truth will out? That even with the lapse of time, something this significant won’t just go away? How about a lesson like that for everyone?”
Let us hope in the interest of both human rights and historical truth telling that the judges recommend a public enquiry. After all, even Jarndyce and Jarndyce was - eventually - concluded:
We asked a gentleman by us if he knew what cause was on. He told us Jarndyce and Jarndyce. We asked him if he knew what was doing in it. He said really, no he did not, nobody ever did, but as well as he could make out, it was over. Over for the day? we asked him. No, he said, over for good. Over for good! When we heard this unaccountable answer, we looked at one another quite lost in amazement.