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Decision due over Malaysian battle


Loh Ah Choi gives his recollections of a massacre in the village of Batang Kali, Malaya, in 1948, during a press conference

Loh Ah Choi gives his recollections of a massacre in the village of Batang Kali, Malaya, in 1948, during a press conference

Loh Ah Choi gives his recollections of a massacre in the village of Batang Kali, Malaya, in 1948, during a press conference

Relatives of Malaysian rubber plantation workers killed by British troops more than 60 years ago will find out the result of the latest round of their legal battle for an official investigation.

Court of Appeal judges in London are to announce their decision in a case which has been described by lawyers representing relatives of victims of the December 1948 "massacre" as a "hugely significant and unresolved instance of human rights abuse".

Today's appeal ruling follows a defeat at the High Court in September 2012 for campaigners challenging a Government decision not to hold an inquiry into the shootings at Batang Kali, Malaya.

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

At a hearing in November last year, Michael Fordham QC, representing four appellants - two of whom were at Batang Kali as children - said that despite the passage of time it was still important and worthwhile for the "truth" of "historic wrongs" to be investigated.

He told the judges: "It is now well-recognised that the public interest considerations which inform the operation of the rule of law do protect against inadequately investigated incidents being 'quietly forgotten'."

Duties of investigation can be "free-standing and continuing", he added.

Mr Fordham said that at least three of the soldiers who were on patrol and at least five villagers who were at Batang Kali were still alive. Oral evidence from living witnesses, including soldiers and the appellants, would be available to an inquiry.

With the assistance of the Malaysian authorities, "the bodies of the victims could be disinterred and the distance and direction of the gunshot wounds analysed".

Foreign Secretary William Hague and Defence Secretary Philip Hammond opposed the relatives' application at the High Court, arguing that the decision not to hold any inquiry was reached lawfully.

The two judges who heard the case in 2012 concluded that decisions not to set up an inquiry were "not unreasonable".

Sir John Thomas, who is now Lord Thomas, the Lord Chief Justice, who sat with Mr Justice Treacy, announced at the time: "In our judgment, the decisions of the secretaries of state were ones that took into account the relevant considerations and were not unreasonable."

The court said allegations against members of the Scots Guards were "as serious as it is possible to make".

The cost of an inquiry would be "materially greater" than £1 million, and the judges said: "It would appear to be very difficult at this point in time to establish definitively whether the men were shot trying to escape or whether these were deliberate executions."

They said: "Nor, in our view, would it be any easier to determine whether the use of force was reasonable or proportionate."

Mr Fordham told the court that the appellants, Chong Nyok Keyu, Loh Ah Choi, Lim Kok and Wooi Kum Thai, are supported by the action group Condemning the Batang Kali Massacre, a campaign in Malaysia that encompasses 568 civil society organisations.

"As that support indicates, the events of 1948 stand as a hugely significant and unresolved instance of human rights abuse in Malaysia," he said.

He told Lord Justice Maurice Kay, Lord Justice Rimer and Lord Justice Fulford that there had been "confessions from six of the soldiers involved that the killings were murder".

Mr Fordham argued that the High Court erred when it held that the ministers were not under a duty to hold an inquiry or investigate further.

Counsel representing the secretaries of state submitted the appeal should be dismissed, arguing that the appellants have no right to an inquiry under the Human Rights Act or common law.