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.