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New court bid over Malayan killings

Published 22/04/2015

Surviving relatives of the victims of the killing of unarmed Malaysian rubber plantation workers in Batang Kali in 1948
Surviving relatives of the victims of the killing of unarmed Malaysian rubber plantation workers in Batang Kali in 1948
Madam Lim Ah Yin is a survivor of the shootings at Batang Kali, Malaya, in December 1948

Relatives of Malaysian rubber plantation workers killed by British troops more than 60 years ago have taken their long-running quest for an official investigation to the UK's highest court.

They want a independent inquiry into the shootings at Batang Kali, Malaya, in December 1948.

Supreme Court justices in London were told by their QC that the "failure and refusal" of the Foreign and Defence Secretaries to "take action to inquire further into the Batang Kali massacre are unlawful".

Michael Fordham told the panel of five of judges, headed by the court's president Lord Neuberger: "The Batang Kali massacre was and remains the responsibility of the United Kingdom."

Lawyers say the case also has "huge ramifications" for Northern Ireland.

The latest proceedings follow a ruling by the Court of Appeal last year dismissing a challenge by the families.

They originally suffered a defeat at the High Court in September 2012, when they unsuccessfully tried to overturn the Government decision not to hold an inquiry - two judges concluded then that decisions not to set up an inquiry were "not unreasonable".

British troops were conducting operations against communist insurgents during the Malayan Emergency when the 24 plantation workers were killed.

The appellants in the case, Chong Nyok Keyu, Loh Ah Choi, Lim Kok and Wooi Kum Thai - two of whom were at Batang Kali as children - are supported by the action group Condemning The Batang Kali Massacre, a campaign in Malaysia that encompasses 568 civil society organisations.

Among those attending the Supreme Court proceedings is 78-year-old Madam Lim Ah Yin, who was aged 11 at the time of the killings.

She said: "I have travelled here to stand before the most senior judges in the UK. I want to let them know the struggle and hardship that my beloved mother suffered after the death of my dad during the massacre."

The families' solicitor John Halford, of law firm Bindmans, said: "Plainly the bullets that killed half the inhabitants of Batang Kali can never be returned to their barrels and the time has long since passed when any soldier who fired them might be prosecuted.

"But when six of them have confessed to murder, eyewitness remain alive and forensic tests can confirm the killings were close-range executions, the law should demand answers from the state.

"After all, those killed were British subjects living in a British Protected State. They and their families have a right to meaningful British justice."

Relatives say that Article 2 - the right to life - of the European Convention on Human Rights imposes a duty on the UK to commission an independent inquiry despite the killings occurring before the convention was drafted and signed.

The importance of the action to Northern Ireland is marked by the fact that Attorney General John Larkin has submitted written argument to the court on the issue, in an attempt to clarity the extent of the state's human rights obligations.

The judges will also consider submissions from the Pat Finucane Centre (PFC) and Rights Watch UK (RWUK), which represent and advise numerous victims of the Troubles.

The Supreme Court justices heard that the appeal concerned decisions in 2010 and 2011 to refuse a public inquiry or another form of independent inquiry into the shootings of unarmed civilians by a Scots Guards patrol.

Mr Fordham told the court: "Public law, and human rights law, can achieve some remarkable things.

"In the present case, the appellants say they can achieve the basis for this court insisting that an independent investigation, review and appraisal be taken up and completed to pursue truth - and reconciliation - in relation to the December 1948 massacre by British soldiers of rubber plantation workers in a Malayan village.

"A handful of the soldiers who were present on that day are still alive, as are a handful of the surviving villagers who were present."

Appellants and other surviving family members could give their accounts, he said, "as could the surviving soldiers and others with expert knowledge of the events surrounding the killings".

Relatives wished to "vindicate the legitimate interests of the deceased, in order to achieve justice, before they die themselves".

In written submissions to the justices, the QC said: "The question in this case is whether the law will now deliver that justice in their lifetimes."

The account of the British authorities at the time was that the deceased were justifiably shot while they were attempting to escape from the patrol. An official explanation is contained in a written Parliamentary answer in Hansard, published on January 26.

Jonathan Crow QC, opposing the challenge, said the appellants sought to make "the positive case that 24 people were executed and that thereafter there has been a cover-up or reluctance to enable that truth to be revealed".

The position of the secretaries of state was "very different".

In written submissions he says they have "declined to accept or reject either what has been described as the 'official' version or the appellants, or other, alternative accounts of what occurred".

He added: "They have not relied on or propounded any particular version of the facts. Indeed, they are in the same position as the court - they do not themselves know what occurred."

Mr Crow argued that the Human Rights Act "does not have retrospective effect and does not impose an obligation to hold an inquiry into deaths occurring several decades before it came into force".

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