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The families of victims of the Batang Kali Massacre are set to pursue their grievances at the highest level of the UK legal system - the Supreme Court - on April 22 and 23, 2015 in London.

A representative delegation from Malaysia will attend court, headed by 78-year-old Madam Lim Ah Yin. As an 11-year-old at Batang Kali, she witnessed her mother being subject to a mock execution during interrogation and was driven away from the village as her father was executed and her childhood home burnt to the ground.

On March 20, 2014, the UK Court of Appeal ruled that the British government was and remained legally responsible for the December 1948 killings at Batang Kali, Selangor.

However, the Court of Appeal was unable to satisfy the victims’ families by compelling the British government to investigate or inquire into the massacre as the families wished because they were bound by the Supreme Court’s previous decisions on the application of human rights standards to past atrocities. The Appeal Court granted the families permission to take their case further, however, and the Supreme Court will hear the case itself next week.

The UK Supreme Court is expected to answer three complex legal questions:

Firstly, who is legally responsible for the massacre? The victims’ families submit that it is, and always has been, the UK government. The UK government will renew arguments that failed in the Courts below to the effect that legal responsibility for the British Army’s actions in Malaya fell to the Sultan of Selangor and shifted to Malaysia on independence.

This transparent attempt to evade responsibility for colonial misconduct should be rejected, as it has already been by five senior judges in the UK lower courts.

Secondly, the victims’ families submit that the British government is under a human rights duty to inquire into suspicious deaths in circumstances where new, compelling evidence of wrongdoing has come to light many years later - a duty arising under both Article 2 of the European Convention of Human Rights (ECHR) and customary international law.

In the Batang Kali case, the special circumstances are clear - there was a woefully inadequate investigation in 1948-49, several of the soldiers involved confessed to murder in the 1970s but there was no accountability  because the investigation was abandoned against the wishes of the police officers involved.

Further witnesses came forward in the 1990s as part of a prematurely-terminated Malaysian police investigation. Yet more evidence  has come to light through the process of the families preparing their case.

The UK Supreme Court is therefore expected to decide whether it should depart from its precedents that have been superceded by European Court of Human Rights decisions, allow the victims’ families’ long plea for a public inquiry to reveal the truth about what happened at Batang Kali.

Unsurprisingly, leading Northern Irish human rights organisations have intervened in the UK Supreme Court in support of the Batang Kali families’ arguments because this case could have real impact on the ongoing process of accountability for state actions during the Northern Ireland conflict. Disappointingly, the attorney-general of Northern Ireland is to argue that there is no duty.

Thirdly, the UK Supreme Court is also urged to look into the level of scrutiny the courts should give a decision refusing to further investigate a massacre of this kind if there is no investigatory duty.

The families argue that, from the 1600s onwards, the common law has always recognised the importance of proper investigation of suspicious deaths in custody and that the justification for refusing to investigate a massacre has to be compelling and proportionate. The courts below in UK held that the right standard justification was ‘reasonableness’ - as long as a reasonable government could refuse an inquiry, the law would not demand one.

‘No longer the right legal test’

The families say this is no longer the right legal test. This issue may serve as a new approach for judicial review in fundamental rights cases such as the right to life.

This appeal will be heard by five judges in the UK Supreme Court, led by President of the Supreme Court, Lord Neuberger. The other four panel judges are Lady Hale - Deputy President of the Supreme Court, Lord Mance, Lord Kerr and Lord Hughes.

The representative of the victims’ families, Madam Lim Ah Yin said, “I will travel and stand before the most senior judges in UK. I want to let them know the struggle and hardship that my beloved mother had suffered after the death of my dad during the massacre.

“My mother told me that she won’t be able to see the justice be done in her lifetime, and she passed away about a decade ago. I am 78 years old and I am determined to see the long overdue justice be done for my beloved father.”

John Halford, the families’ UK-based solicitor said: “The Malay states were British Protectorates. Every one of the 24 men  killed during the massacre was a British subject, under the protection of the King.  They were killed by British troops,  deployed  on the instructions of the British cabinet.

“It is, therefore, only fitting that Britain’s highest court  should hear why  there has been no accountability whatsoever for the killings and why the survivors’ demand for the truth about them to be revealed  is one which sounds in law,  as well as in morality. We look forward to British justice  finally reaching the clearing in Batang Kali where half the villages’ inhabitants were slaughted 67 years ago.”

Families of 24 people killed by British troops in the British colony of Malaya in 1948 brought the case to the UK Divisional Court in May 2012. On 4 September 2012, the court upheld the British government’s decision not to hold a public hearing into the killing but ruled that the British government should always remain responsible towards the unlawful killings in Batang Kali.

In its written judgment, the UK Divisional Court also said, “There is evidence that supports a deliberate execution of the 24 civilians at Batang Kali” and that the allegation of an army cover-up was one that could “properly be made”.

The UK Court of Appeal had subsequently endorsed that there is no proper basis for disputing the accuracy of the 10 key facts that had been put forward by the families in the Divisional Court - including that those killed were unarmed labourers.

Tireless efforts had been made by the victims’ immediate family members to redress their grievances, around Dec 19, 1948 - one week after the massacre took place, by taking taxies to travel from Batang Kali to Kuala Lumpur to petition against such injustice until this pursuit to the UK apex court is now taken over by their children. It is a long but remarkable journey.    

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