R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay |
| Judgment Date | 19 March 2014 |
| Neutral Citation | [2014] EWCA Civ 312 |
| Docket Number | Case No: C1/2012/3390 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2014 |
[2014] EWCA Civ 312
Lord Justice Maurice Kay, VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
Lord Justice Rimer
and
Lord Justice Fulford
Case No: C1/2012/3390
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM [2012] EWHC 2445 (the Administrative Court)
President of the Queen's Bench Division and Mr Justice Treacy
CO/1827/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Fordham QC, Danny FriedmanQC andZachary Douglas (instructed by Bindmans Solicitors) for the Appellants
Jonathan Crow QC and Jason Coppel QC (instructed by The Treasury Solicitor) for the Respondents
Hearing dates : 26–28 November 2013
This is the judgment of the court to which all three members have made substantial contributions.
Introduction
This appeal is principally concerned with the appellants' contention that there should be a public inquiry or similar investigation into events that occurred on 11/12 December 1948 when a patrol of the Second Battalion of the Scots Guards shot and killed 24 civilians at the Batang Kali rubber plantation on the Sungei Remok Estate, in the State of Selangor, which was a British Protected State within the former Federation of Malaya. The context of the incident was the fighting and unrest that accompanied the communist threat that then existed within the Federation, known as the "Malayan Emergency". It is alleged that the 24 civilians were executed without any justification, and that the authorities thereafter have either covered up what occurred or have been reluctant to take the necessary steps to enable the truth — whatever it may be — to be revealed. This has never been accepted by the British authorities, who have maintained that the deceased were shot while they were attempting to escape.
The appellants were either in Batang Kali at the time of the deaths or they are closely related to those who were killed. Before the Divisional Court they challenged the decision of the Secretaries of State ("the respondents") in letters dated 29 November 2010 and 4 November 2011 to exercise their discretion under the Inquiries Act 2005 not to establish a public inquiry (or any other form of inquiry) into the deaths. In essence it was the case for the appellants before the Divisional Court – as repeated on this appeal – that the respondents have a duty to set up an appropriate inquiry or, alternatively, they erred in the exercise of their discretion in this regard. The Secretaries of State argue that they are not under a legal duty to establish an inquiry and, moreover, they contend that they properly exercised their discretion in deciding not to take this step.
The Divisional Court (Sir John Thomas, President of the Queen's Bench Division, as he then was, and Treacy J, as he then was) on 4 September 2012 decided that there were no sustainable reasons for overturning the decisions of the respondents: [2012] EWHC 2445 (Admin).
The background
The ultimate source of authority in the State of Selangor in the context of the actions of the Second Battalion of the Scots Guards is a relevant issue in this case, and – put generally – control over the state was the subject of significant change during the later years of the British Empire.
In 1874 or 1875 an arrangement was reached by way of an exchange of letters between the ruler of Selangor (Sultan Abdul Samad) and the British Government whereby the Sultan agreed that a British Resident was to aid and advise him in governing his state. In the result, although the Sultan remained the sovereign, he usually acted only on the advice of the Resident who in turn took his instructions from the British Government.
During the Second World War Selangor was occupied by the Japanese. British military administration was established by September 1945, and on 24 October 1945 the state became a Protectorate as a result of a treaty between the British Government (acting on behalf of King George VI) and the Sultan (the Treaty of McMichael).
In 1946 Selangor joined the Malayan Union.
On 21 January 1948, shortly before the Federation of Malaya was created, Sir Richard Gent, on behalf of King George VI, concluded the Selangor Treaty with the Sultan which delineated authority within the state. By clause 3, the British Crown was to exercise "complete control of the defence and all other external affairs" of Selangor, and the King was responsible for protecting the state "from external hostile attacks". In order to discharge this and other obligations, the King's forces were allowed unrestricted access to the state and were entitled to employ all necessary means of opposing attacks of this kind. The Sultan agreed to accept the advice of the British Adviser on all matters relating to the government of Selangor, save for matters concerning the Muslim religion and the Customs of the Malays.
The Federation of Malaya Agreement came into force on 1 February 1948; Sir Richard Gent had negotiated the Agreement on behalf of the King with the various rulers of the Malay States, and as a result Selangor became one of the states within the Federation.
The arrangements as to authority over defence and external affairs were governed by clause 4 of the Agreement, which reflected clause 3 of the Selangor Treaty. Clause 4 provided:
"His Majesty shall have complete control of the defence and of all the external affairs of the Federation, and undertakes to protect the Malay States from external hostile attack and for this and other similar purposes, His Majesty's Forces and all persons authorised by or on behalf of His Majesty's Government shall at all times be allowed free access to the Malay States and to employ all means of opposing such attacks."
A High Commissioner exercised the Crown's and other executive power for the states (including Selangor), and the rulers were bound to accept his advice in all matters connected to the Federation (Part II of the Agreement). Executive authority for the Federation was vested in the High Commissioner, who was advised by a Federal Executive Council which he appointed (Part III of the Agreement).
The High Commissioner was given particular responsibilities for "the safeguarding of any grave menace to the peace or tranquillity of the Federation or any Malay State or Settlement …" by clause 19(b) of the Agreement.
The High Commissioner and the rulers of the states were empowered to make laws ("Ordinances"), with the advice and consent of the Federal Executive Council, and the latter had the power to make laws in relation to certain specified matters which included defence and emergency powers (Part V of the Agreement).
As a result of these arrangements and particularly given the continued sovereignty of the Sultan, Selangor came within the definition of a Protected State for the purposes of the British Protectorates, Protected States and Protected Persons Order 1949.
During the late 1940s there was a significant communist insurgency within the Federation, and this intensified during 1948. Several British planters and businessmen were killed and there were violent incidents within Selangor. It was believed that there were approximately 600 saboteurs and 4000 armed guerrillas operating in units of 10 – 50 members. Following a meeting on 24 June 1948 between Sir Malcolm McDonald (the British Commissioner General for South East Asia), the Defence Co-ordination Committee for the Far East, the Governor of Singapore and the High Commissioner of the Federation, the Colonial Secretary approved the use of emergency powers in the context of a planned operation that had two anticipated phases. The objective of the first phase of the operation was to "apprehend or liquidate the enemy forces and so far as this does not succeed completely to drive them into the jungle". The installations that were deemed essential to the Malayan economy were to be protected, and the police force was to be strengthened and assisted by the Malay Regiment and other local troops. The second phase was described as comprising "the operation necessary to liquidate guerrilla bands in the jungle involving also destruction of camps, cutting off food supplies and uncovering dumps of arms etc. […] These operations will be primarily of a military nature in which the police will participate […]". It was acknowledged that reinforcements might become necessary.
The Acting High Commissioner (Sir Alec Newboult) and the rulers of the states (with the advice and consent of the Federal Legislative Council) issued Emergency Regulations Ordinance number 10 of 1948 on 7 July 1948. In essence, this enabled the High Commissioner to proclaim a state of emergency, and thereafter to make regulations of wide scope, which included such features as the use of the death penalty.
The High Commissioner declared a state of emergency on 12 July 1948 for the entire Federation, and on 15 July 1948 he issued the Emergency Regulations 1948 under the Emergency Regulations Ordinance. These regulations provided the police with significant additional powers; they permitted in camera trials; and, by regulation 36, coroners and magistrates were entitled to dispense with inquiries or inquests following the death of any individual as a result of the operations by the police or the military in suppressing disturbances.
The role of the military at this stage was set out by the Commissioner General for South East Asia in a memorandum to the Colonial Secretary on 12 July 1948 as...
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