BRINGING THE PAST, BRINGING RIGHTS BACK HOME – UK SUPREME COURT TODAY
Today, the UK Supreme Court delivered its judgment in a case examining the massacre by the British army of 24 civilians at the Batang Kali rubber plantation on 12th December 1948 in Malaya during what the British government called the Malayan Emergency.
KRW LAW LLP was instructed to intervene in this case earlier this year following permission being granted by the court for the Attorney General of Northern Ireland to make submissions on the points of law raised: the Attorney General was in part responding to the repeated requests made to him to order new inquests into many Conflict related deaths and his view of inquests as a mechanism for victims to obtain truth, justice and accountability.
We were instructed by Derry based NGO the Pat Finucane Centre, Relatives for Justice and the London based NGO Rights Watch (UK), who recognised the potential significance of the arguments to be made regarding the application of the European Convention on Human Rights (ECHR) as incorporated into UK law by Human Rights Act 1998 to human rights violations occurring before 2000 and the duties placed upon the British government to investigate such violations including the Batang Kali massacre and by extension to many Conflict related human rights violations, the Legacy of which are now being contested by the British government in its failure to establish a human rights compliant mechanism of investigation and the stance of senior law officers including the Attorney General.
The judgment of the UK Supreme Court unanimously held that the issues were within the jurisdiction of the UK courts which means that the UK was responsible for the Batang Kali massacre and that there was a responsibility on the British government to conduct an investigation if the ECHR could be engaged. This reasoning is welcomed in relation to the Legacy of the Conflict in Northern Ireland. However, the grounds of appeal offered by the Applicants were rejected by a majority of the judges but this rejection needs to be isolated to particular facts of this case.
On these facts Article 2 of the ECHR (the right to life) was not engaged and therefore there was no duty on the British government to investigate because 1948 was too long ago. There would have been a duty if the 1948 was within the period of being a critical date and there was a connection between that date and the deaths. 1948 was too long before the critical date of 1966 was the date the UK recognised a right of an individual to take a case to the European Court of Human Rights and therefore no genuine connection could be established and therefore Article 2 was not engaged and there was no duty to investigate any further beyond the investigations already undertaken.
Therefore, the Appellants request for an investigation into the Batang Kali massacre 1948 under the Inquiries Act 2005 failed. In addition the arguments that the decision to refuse the request for a statutory inquiry were upheld as reasonable and proportionate in this case. Lady Hale did however dissent on the basis that the decision not to hold an inquiry was one which no reasonable authority could reach.
Darragh Mackin, Solicitor said:
“Whilst not being a satisfactory result for the relatives of victims of the Batang Kali massacre, the judgment does have an important impact for dealing with historic related murders in this jurisdiction. The Court has held that the obligation on the British State to investigate suspicious deaths arises from the date the state granted the right of individual petition, namely 1966.
This therefore gives rise to an obligation on the British government to undertake human rights compliant investigations into Conflict related incidents, where necessary in order to discharge its duties.”