Withdrawal from Empire: the Malayan, Cyprus and Kenyan Emergencies

Chapter 5
Withdrawal from Empire: the Malayan, Cyprus and Kenyan Emergencies

Introduction: Executive Measures and the Rise and Fall of Empire

In 1905, the British Empire covered in terms of population and geographical area a quarter of the globe. It also dominated almost all the world’s oceans.1 The United Kingdom had Dominions and colonies in North America, the Caribbean, the Far East (Malaya, Singapore and parts of Borneo, Hong Kong), East, West and southern Africa, and the Antipodes, with Gibraltar and Cyprus at either end of the Mediterranean and effective domination of Egypt and the Suez Canal. The jewel in the Imperial Crown was India (the Indian subcontinent as a whole, what is now Pakistan, India and Bangladesh). Its ultimate victory in the recent Boer War had seen more of what is now South Africa added and it had pushed northwards into Rhodesia (now Zimbabwe). Its economic power had given it a further ‘informal empire’, with dominance in Latin America and the Middle East.2 More possessions and entities subject to control were to be added after victory in the First World War: former German colonies in East Africa and League of Nations mandates in Iraq, Jordan and Palestine. In the 1930s it was the largest empire in world history.3 Part of England’s first colony, Ireland, gained effective independence in 1922. That expansion had often been achieved by military force and was maintained in part by the deployment against disturbances and insurgencies of the types of executive measures examined in this book. Thus, martial law was used frequently in the colonies throughout the nineteenth century.4 For example, it was deployed along with statutory regimes in 1857 brutally to suppress the Indian Mutiny.5 It was invoked in 1848–51 by Governor Byng against the Kandyan insurgency in Ceylon6 and by Governor Eyre in 1865 to suppress a rebellion in Jamaica.7 During the Boer War, Sir Henry Campbell-Bannerman, the leader of the Liberal Opposition, complained of Government use of ‘methods of barbarism’ in respect of interning under martial law women and children behind barbed wire in what contemporaries called ‘concentration camps’.8 Then, as now, there was an anti-war movement, even if the dominant mood was one of jingoism.9 Some 22,000 women and children died of malnutrition and disease, not as a ‘deliberate and settled policy’ of ‘extermination’, as Lloyd George charged,10 but rather as a result of well-documented incompetence and neglect.11 The executive measures used in Ireland have been examined in chapter 3. In the 1930s and 1940s, Indian nationalists, including Gandhi and India’s post-independence leaders, were detained without trial.12 Iraqi tribesmen were bombed from the air in the 1920s. And a prime weapon in the colonial armoury against ‘troublemakers’ was to exile them to another part of the Empire, as happened to an Egyptian nationalist ruler in the nineteenth century,13 and, in the twentieth, to some Indian nationalists (exiled to what is now Burma),14 to the Kabaka of Buganda in 1953 and to two Cypriot Greek Orthodox bishops (and eight others) in 1931.15

The period 1947 to 1997, ending with the return of Hong Kong to China saw this Empire dismantled quite rapidly in response to nationalism and in part to anticolonial armed struggle in the changed world after the Allied victory in the Second World War. Japanese victories had shattered the myth of the invincibility of the ‘white’ powers. The Japanese devolution of governmental tasks to local administrations had given the lie to European arguments that Asian peoples were incapable of governing themselves.16 Soldiers from different parts of the Empire had fought together and become aware of longer-standing Indian nationalism.17 The Atlantic Charter (the statement of the Allied war aims in 1941) and the UN Charter put the self-determination of peoples firmly on the international agenda.18 Soldiers returning after the War to countries that were colonies considered that they had fought fascism for the independence of nations and saw as hypocritical the maintenance of colonial power.19 The War had given Asian nationalisms a youthful militaristic face.20

Some colonies achieved independence in the forties (India and Pakistan, Burma, Ceylon (now Sri Lanka)), a few more in the fifties (for example, Malaya, Ghana (formerly the Gold Coast)) but many more in the sixties (for example, Cyprus, Nigeria, Kenya, Jamaica). Not all came to independence as a result of insurrection.21 But the political, physical and economic cost of maintaining a colonial empire in the face of concurrent and geographically widespread armed insurgencies brought about a marked change in colonial policy by the end of the 1950s. In the early 1950s colonial empire was seen as valuable in both strategic and economic terms and as aiding Britain’s position as a major world power.22 Investing the material and personnel resources of a declining and overstretched economy in maintenance of it was seen as very much worthwhile. The governing policy was at best for moves over quite a long period towards internal self-government (with Britain retaining at the very least responsibility for defence and external relations) rather than independence. By 1957, after the Suez debacle of 1956, a review in part to examine the costs and benefits of empire showed that ‘territorial empire was no longer seen as a sustainer of British great-powerdom’.23 It was not a matter of wholesale retreat but more a question of how best to manage the process of colonial independence rather than mere internal self–government, with differing views taken about different areas.

White-settlerdom was one of the key factors in Whitehall’s dealings with its variable-geometry, multi-speed territorial empire in Africa. In West Africa, where it was minimal, the initial strides down the road to eventual independence could be – and were – longer. … But in the long white-settler finger thrust northwards from South Africa, through the Rhodesias and into Kenya, entirely different political and economic calculations were in play.24

It was not, however, envisaged in 1957 as a mad rush for ‘exit’ from colonial empire. The decision to scramble out of Africa came only after the Macmillan Conservative Government’s General Election victory in 1959 and the appointment of Ian MacLeod as Secretary of State for the Colonies. This presaged a ‘deliberate speeding up of the move to independence’ in Africa as the only way to avoid ‘terrible bloodshed’.25

The immediate causes of the end of the British Empire are to be found not only in the nationalist movements in Empire itself but also in lessons learned from the Algerian revolution and in the danger of Soviet intervention in the Congo. It seemed altogether more prudent to settle with African liberation movements in eastern and central Africa before war broke out between blacks and whites or before the Africans turned to the Russians for sponsorship.26

Most of the former colonies, dependencies and protectorates are now part of the Commonwealth, the extent of which mirrors the former extent of empire.27

This chapter examines the use of executive measures to deal with insurgencies in the withdrawal from Empire in three of the colonial emergencies: Malaya, Cyprus and Kenya. All three are examined because they occurred in whole or in part in the new human rights era ushered in with the ratification by the United Kingdom of the European Convention on Human Rights (ECHR). They thus form a sharp contrast to earlier eras with much more limited international accountability. But, because ECHR norms were not part of national law either in the United Kingdom or the colonies, they also form a significant contrast to the HRA era in terms of the practical applicability of judicial oversight of the application of such norms. Malaya is examined because it saw what is generally accepted as a ‘model’ victory against a Communist insurgency by means of the application of lethal force in the low-intensity operations of a guerrilla war and the deployment of security measures of the type examined in this book, on the one hand, and policies (including an accelerated move towards independence) designed to win the ‘hearts and minds’ of the bulk of the population of Malaya, on the other. The ‘benevolent’ picture painted by public records and earlier accounts has, however, been somewhat tarnished by a ‘darker’ side presented in a recent study.28 Cyprus is examined as an emergency in an anomalous European colony, thought vital to the United Kingdom’s strategic interests, in relation to which the direct interest of another State party to the ECHR, Greece, gave real force to ECHR norms in the first inter-State case brought before the European Commission of Human Rights. Kenya is examined because to many contemporaries it represented a conflict between civilization and barbarism, part of the United Kingdom’s ‘civilizing’ mission, while to others it showed the racist face of Empire as the United Kingdom suppressed the Mau Mau revolt with use of executive measures on a massive scale (mass detentions and internal exile or banishment in ‘Britain’s gulag’)29 and large-scale use of the death penalty in what two recent histories characterize as a ‘dirty war’.30

The Malayan Emergency

The emergency in British Malaya lasted from mid–June 1948 until Malayan Independence at the end of August 1957. It continued until 1960 for the newly independent State within the (then British) Commonwealth, with its government aided in combating an ongoing but diminished Communist insurgency by British expertise and loans. It was the longest emergency in British colonial history,31 the most protracted twentieth-century conflict, outside Northern Ireland, faced by Britain.32 During it, 10,710 people were killed: 1,851 members of the security forces, 2,461 civilians, and 6,398 communist ‘terrorists’. Just over 2,500 members of the security forces and 1,383 civilians were wounded. A further 807 civilians were listed as missing. The population of Malaya was only about a tenth of that of the United Kingdom in that period. It is right to recall that

The violence of the conflict was to be found not only in the casualty lists from the ‘shooting war’, but in the growing trauma of arrests and detentions, the removals and deportations which tore apart the lives of individuals, families, and whole communities. … hundreds of thousands of people would be ensnared by this crisis. … a forgotten story of a forgotten war.33

The Emergency cost some £700 million pounds sterling, £520 million spent by the British taxpayer. Even discounting £100 million for military and defence costs which would arguably have arisen anyway, the net total of some £600 million is quite staggering.34

The Federation of Malaya – a governmentally unwieldy combination of two British colonies or settlements,35 and nine Malay States36 each nominally ruled by a Sultan but under British protection (‘a tactful euphemism for governing authority’)37 – came into being on 1 February 1948, after a failed attempt to provide a more centralized governmental system.38 The governing instrument was the Federation of Malaya Agreement, embodied in United Kingdom Law as part of a prerogative Order in Council.39 Its essence was that each of the States and settlements ‘should retain their individuality under a strong central government’.40 Singapore formed a separate British colony at the tip of the Malay Peninsula (what is now West Malaysia).

The population of the Federation was some 5.7 million and ethnically diverse with 2.8 million Malays forming just over 48 per cent of the population, 2.1 million Chinese (some 38 per cent), 660,000 Indians/Pakistanis (some 12 per cent), less than 100,000 British and other ‘Europeans’ (including Americans), and small numbers of aboriginal peoples (orang asli).41 Most of the population lived in rural rather than urban areas. Topographically, Malaya was bisected by central mountain ranges running north to south and, apart from the coast, composed mainly of dense jungle. The economy was dominated by rubber (supplying half the world’s needs) and tin. Malaya was the sterling area’s largest dollar earner. This made protection from attack of plantations and mines, and their managers and workers, an essential part of the counter-insurgency strategy. Malaya was economically and strategically important to the Empire and the United Kingdom’s domestic recovery after the War42 – virtually its lifeline.43

British influence in the peninsula and islands began with the establishment of trading settlements by the East India Company in the late eighteenth and early nineteenth centuries, with the Straits Settlements becoming a Crown colony under the Colonial Office in 1867. It took over the role from the India Office with the waning of the power of the Company after the Indian Mutiny.44 The inter-war years (1920–40) were the pinnacle of Empire in Malaya. The Sultans were never mere puppets. Stability was maintained by mutual respect between these rulers and the British and further aided by bringing non-Europeans into government and opening the Civil Service to educated Malays. There were few indications of insurgent nationalism. Malay and Indian nationalism were not thought threatening. In contrast the British took seriously the threat from the Malayan Communist Party (MCP), dealing with it in 1931–32 by imprisonment and deportation.45 World War Two, with its revelation of the weakness of British power, and the Allies’ promise of ‘self-determination’ made in the Atlantic Charter late in 1941, enhanced nationalism in Malaya, as elsewhere in colonial empires.46

The British had been ejected from both Malaya and Singapore by the Japanese in 1942. After the defeat of Japan at the end of the Second World War, the British returned in 1945. There had, however, been a ‘power vacuum’. There were very few British forces in the country and both they and the Malaya Peoples Anti-Japanese Army (MPAJA), primarily Chinese guerrillas, were outnumbered by the Japanese. The MPAJA began to take over in a number of areas and there was a danger of intercommunal strife, even anarchy, as revenge was taken on perceived collaborators.47 Enough of a peace was maintained by the small force of British irregulars who had fought alongside the MPAJA, and eventually a British Military Administration ran Malaya until 1 April 1946. It was then intended that the nine Malay States and the two British settlements would merge into a unitary state, the Malayan Union. The plan ‘alienated the Sultans and galvanized the Malay people in an unprecedented way’, with leading Malays forming the United Malay National Organization (UNMO). The resulting process of consultation and compromise produced the Federation of Malaya Agreement on which the government of Malaya rested during the emergency.48

The Nature and Scope of the Emergency

The MCP also grew in strength as a result of the Japanese invasion, and was seriously underestimated by the British authorities in Malaya. Many of its members had fought in the MPAJA, alongside the British, against the Japanese. It had tried but failed, through labour disruption and subversion of young Chinese through Chinese schools, to subvert the government service and bring Malaya to its knees.49 The decision of the MCP to launch an all-out insurgency to establish a Communist Republic in Malaya was taken late in May 1948 at a conference in a sophisticated camp in the jungle. Its undisputed leader, Chin Peng, a Malaya Chinese had visited China in 1945 and 1946 and had learned guerrilla warfare from the British when with the MPAJA. He was a disciple of Mao, but probably not his puppet.50 The 1957 review of the emergency by the British Director of Operations saw the MCP campaign as ‘part of a wider Soviet-inspired drive to obtain control of what is strategically and economically one of the most important areas in SouthEast Asia’.51 The campaign of murder, sabotage and terrorism, which began on 16 June 1948 and was designed to paralyse the Government and develop into armed revolution, was in response to instructions issued at two Cominform conferences in India earlier in the year.52 There was, however, no evidence of any appreciable financial backing from sources outside Malaya, with the MCP and its armed ‘wing’ relying for the most part on ‘subscriptions’ from willing sympathizers or extorted from others, often in the form of supplies in kind (for example, food).53 Its weaponry came from a mixture of material hidden in dumps by the MPAJA during the Japanese occupation, or captured from the security forces or leaked or lost by them, or from Ordnance stores or arms dealers, from smuggling or from confiscation and robbery from the public.54 The ‘armed wing’ in the jungle – later called the Malayan Races Liberation Army (MRLA) – was matched by a civilian wing (Min Yuen) in towns and on the jungle fringes of villages, among the Chinese ‘squatters’, from which the MRLA derived material support, some coerced, some willingly given especially when the MRLA rather than government forces appeared to be in the ascendancy.

A state of emergency was declared on 17 June in response to a number of murderous attacks attributed to Communist ‘bandits’, initially in parts of the two States concerned, Perak and Johore, and nationwide the next day. The legal base was the British Military Administration (Essential Regulations) Ordinance. The base became the Emergency Regulations Ordinance 1948 from 7 July. This enabled a proclamation of emergency whenever it appeared to the High Commissioner in Council that an occasion of emergency or public danger had arisen. The issuing of such a proclamation brought into play his power to make any regulations whatsoever which he considered desirable in the public interest and to prescribe penalties, including the death penalty, which may be imposed for any offence against any such regulations and to provide for the trial, by such Courts as might be specified in such regulations, of persons guilty of such offences.55 The regulations could not authorize punishment by death, fine or imprisonment without trial, but, without prejudice to the generality of this wide rule-making power, could deal amongst other specifics with arrest, detention, exclusion and deportation, with restriction of movement, and with control of aliens. A new code of regulations was issued under the Ordinance on 15 July.56 Amended continually throughout the emergency, this legal code provided the basis for most of the Government’s actions to deal with the emergency. But the powers supplemented rather than replaced those under other ordinances, such as the Banishment enactment or the Immigration Ordinance 1952.

The conflict was primarily rural and jungle-based rather than urban. Those in larger cities were largely unaware of the scale of the conflict.57 The MRLA sought to attain its aims over the period through a variety of means and shifts in strategy. Between 1948 and 1950, it undertook a campaign of murder, sabotage and terrorism, hoping by it to paralyse the Government and develop the campaign into an armed revolution. From 1950–52, it shifted into guerrilla war designed to wear down Government will; to dominate targeted small towns and villages; and thereby to liberate areas in which they would establish their own civil administration and develop a regular army. From 1952–55, to avoid antagonizing the masses, it operated only against military targets in the countryside. As regards centres of urban population its tactics were ones of infiltration and subversion in all walks of life. From 1955 onwards, reliance on subversive methods became dominant and the jungle ‘war’ petered out.58 Throughout, Government policy deployed the military in aid of the civil power rather than martial law sought by many European planters. The matter was more one of perception, of maintaining the appearance essential to maintaining governmental legitimacy of order being maintained by regular law being made by civil authorities, since the Emergency Regulations Ordinance gave virtually unlimited rule-making power, and the reality was more akin to a legal regime of a type associated with martial law than the regular legal system.59 The conflict ebbed and flow, but four distinct phases have been identified. From the declaration of a State of Emergency in June 1948 until October 1949, the ‘Communist attempt to seize power by violence and revolution was held and the [communist terrorists] withdrew into the jungle to reorganise for a prolonged war’. The period from then until August 1951 saw violence reach its peak. The MRLA was encouraged by Communist successes elsewhere in Asia. There were serious weaknesses in civil and military measures. Sir Harold Briggs was appointed as Director of Operations, the better to coordinate these. His plan was a combination of security measures and ones of regulation and control of the population and resettlement of the Chinese squatters (what his successor labelled as ‘winning hearts and minds’). It built on work done by his murdered High Commissioner, Sir Henry Gurney, and was one of the keys to final success.60 The Security Forces also began to achieve greater success in eliminating members of the MRLA in jungle encounters. The next three-year phase saw ‘the back of the revolt … broken’. The dispersed Chinese squatter population was brought under control as the Briggs plan matured. The MRLA suffered increased eliminations, losing half its strength, and consequently became less aggressive. Casualties among civilians and the Security Forces were now only one seventh of their 1951 peak. A key feature in this period was the combination of the roles of High Commissioner and Director of Operations in Briggs’s successor, General Templer, who had ‘full power over all civil and military resources’. The final phase of direct British involvement was July 1954 to August 1957. The crisis had passed. The posts of High Commissioner and Director of Operations were accordingly once more separated and held by different individuals. Crucially, to prepare for independence, governmental powers were gradually handed over to Malayan political leaders in a conservative coalition combining Malays, Chinese and Indians. Indeed in December 1955, the Chief Minister held peace talks with and at the request of the leaders of the MCP. They were willing to abandon the conflict and come out of the jungle, but only if the MCP was recognized as a legitimate political party. The new Government held firm and refused this, fearing a return to subversion followed by further armed conflict.61 In 1956 a date for independence was agreed and key governmental, military and security posts were subject to ‘Malayanization’. The MRLA continued to decline in strength. So did encounters with the Security Forces, casualties and incidents.

The Communist insurgency was defeated by a combination of tough security measures/policies, enabling extensive intelligence-gathering, coupled with measures to win the hearts and minds of the vast bulk of the population. Particularly important here was the clear and stated policy of moving steadily towards self-government and eventual independence, something Churchill saw as vital in keeping a strategically important Malaya within the British sphere of influence in a South-East Asia threatened by communism.62 The effective deployment of propaganda by the Government was also important in maintaining the confidence of the civilian population and weakening that of the MRLA and MCP. The strategy was to deal first with the MRLA and MCP in areas where they were weakest and, when those were cleared (declared ‘White’), to lift there as many of the stringent emergency restrictions as possible, and then move on to tackle their areas of greater strength, thus spreading ever wider the number of ‘White’, largely ‘emergency-free’ areas. In ‘selected’ areas, a more limited range of regulatory restrictions was removed. The aim of the Briggs plan was to break the link between the MCP/MRLA and the main source of their support, the Chinese squatters. A key element in this was to give the Chinese section of Malaya’s diverse population a real stake in a new Malaya.63 This was achieved in part through new citizenship laws64 and in part by providing Chinese representation on key bodies in the decision-making process (War Executive Councils at Federal, State or District level, detention advisory committees). It was achieved crucially through a policy of resettling the squatters (and some Chinese who were legitimate land-holders) with proper land tenure in fortified ‘New Villages’, protected by the police and members of the Home Guard so as to free up the military for direct operations against the communist guerrillas in the jungle.65 These villages were condemned in MCP propaganda as ‘concentration camps’, surrounded as they were by barbed wire fences and floodlit security zones (‘killing grounds’).66 The fences were later changed to chain-link. In a context of national registration (explored further below) enabling prompt identification of an individual, they could through these physical measures be protected from MCP infiltration and MRLA attack by Security forces including not only soldiers and Malay police, but a Chinese element in a ‘Home Guard’. The villages were gradually improved in terms of physical structure, utilities and amenities, schools and medical facilities, with the assistance of qualified teams under resettlement officers. A new social insurance system was introduced throughout Malaya. While initially there was a degree of voluntarism in the resettlement process, compulsion and coercion (the threat of repatriation to China) were also deployed,67 the legal base being an unclear mix of the amended Restricted Residence Enactment and the Emergency Regulations.68 In two areas where terrorist pressure was such that the usual procedures for resettlement would have produced undue risk and delay, resettlement was effected under Emergency Regulation 17D by arresting and detaining under a collective order everyone in the area concerned and then releasing and resettling all those in respect of whom there were no grounds for making individual detention orders.69 In all, some half a million people were settled or resettled (some 9 per cent of the Malayan population), mainly Chinese and as short a distance as possible from their former homes, at a cost of some 41 million Straits dollars.70 A similar number were regrouped in towns and on rubber estates.71 It was ‘the largest planned population relocation in recorded history’.72

Material support in terms of food, money and weapons was denied the MCP/MRLA in general by restrictions on the sale and distribution of food73 and specifically by random stop and search of vehicles and persons and by routine searches of individuals (often strip-searches) when entering and leaving the New Villages to go to their places of work (‘Operation Starvation’). The latter at times came close to harassment with racial overtones.74 Mines and rubber plantations, so vital to the economy, were protected by armed police and by a regulatory system of regrouping of the larger labour forces into defended residential areas with the cost of some being borne by the mining companies and plantation owners.75 Other important factors in defeating the insurgency were the lack of significant support for the MRLA/MCP among the Malay and Indian population and the fact that the Chinese Government and its military forces were occupied fighting against UN Forces in the Korean War.

In terms of security measures, the gathering of vital intelligence was aided by the expansion and reform of the Police Special Branch and the deployment of Chinese officers trained in undercover techniques to enable infiltration of suspect groups. A vital policy was one of National Registration which, with the requirement to carry one’s identification documents embodying photograph and fingerprint, made it easier to monitor the population and identify suspects through lack of any or proper documentation.76 A variety of ways were used to increase the flow of information to the police and Security forces: (a) the use of infiltration agents; (b) the ‘turning’ of former terrorists through money and amnesty; (c) having suitable ‘converted terrorists’ serve in a Special Operations Volunteer Force to help in hunting down their former comrades;77 (d) a greater flow of information from a village either willingly because ‘hearts and minds’ had been won by the ‘carrot’ or because of the application of curfews and other restrictions, the ‘stick’ of ‘collective punishment’ of a ‘disloyal village’ to ‘encourage’ recalcitrant villagers to co-operate; (e) the use of arrest and detention without trial of suspects, something which had a preventive element and one of removing communist cells from the community where, because of witness intimidation or sympathy with the cause, conviction in the criminal courts was not possible.78 Reconnaissance by aircraft and by ground patrols, aided by Iban native jungle trackers from Borneo, enabled the identification of camps, arms dumps and trucks. The use of such trackers proved controversial alongside payment of bounty for each ‘kill’ and a stop was put on the practice of producing the head for proof of the kill.79 The ‘food denial’ policy forced the MRLA/MCP to cultivate food in a jungle inhospitable in food terms. This, however, made them more vulnerable to identification by aerial reconnaissance, enabling both the destruction of the crops by chemical spraying from the air or their manual and chemical destruction by ground troops. It also increased the number of MRLA and Security forces contacts and confrontations, which the latter increasingly won. The end result of all this was better to enable the targeting of MRLA groups or MCP suspects. Sometimes this resulted in their physical elimination through lethal force in military clashes or ambushes. There is some indication of using agents to set up a suspect for physical elimination. This would now be called a ‘shoot to kill’ policy.80 There was also the Batang Kali incident in which 25 Chinese men were shot by a unit of the Scots Guards (Malaya’s My Lai), an incident said to be exceptional only in its scale.81 The legality of the use of lethal force in Malaya was, however, complicated by the creation of areas in which ‘shoot on sight’ was permissible. Its use also highlights graphically that this was a guerrilla war, whatever the official reasons for avoiding those terms. In the jungle conflict ‘shoot to kill’ was the order of the day, with arrest reserved for the wounded.82 There were, however, cases in which lethal force was wrongfully deployed against civilians or terrorists ‘shot while escaping’.83 But effective targeting also enabled capture and removal from circulation in the community of suspected terrorists through criminal prosecution and trial by judge alone or in capital cases judge plus lay assessors rather than by jury, whether for offences against the general law or ones under the Emergency Regulations, many of which carried the death penalty (for example, possession of firearms, extorting food or money for terrorists).84 For terrorist offences 226 were hanged, a relatively low number (given the scale of the conflict and experience in Kenya) attributable to the killing rate in jungle ambushes where few prisoners were taken.85 The rules on confessions in the Criminal Procedure Code were departed from to enable, as regards offences against the Emergency Regulations, the admissibility in court of confessions made to a police officer at any time during an investigation.86 In July 1950, the Secretary of State for the Colonies reported to the Cabinet’s Malaya Committee that the High Commissioner ‘stated categorically that the executive [had] never failed to prosecute under the emergency regulations when sufficient evidence [had] been available’.87 There had been 207 prosecutions for the (later capital) crime of carrying unauthorized arms contrary to Emergency Regulation 4. There had been 136 convictions, 12 of which were upset on appeal locally and one on appeal to the Judicial Committee of the Privy Council in London. Seventy eight had been hanged. Nine were given life imprisonment in the period before the offence became capital. In the remaining cases capital sentences were remitted. Offences under the other Emergency Regulations had seen 232 prosecutions resulting in 161 convictions. The statistics showed not leniency on the part of the courts but evidential difficulties in a due process system. Where prosecution was not possible because of witness reluctance, lack of other evidence or the need to take preventive measures against someone yet to commit an offence, the authorities had to resort to detention without trial, release subject to controls and restrictions, restricted residence orders, or to deportation or banishment. There were overlapping powers both in regular Ordinances of the Legislative Council and in the Emergency Regulations. The banishment powers included one to remove British subjects connected with another part of the Empire rather than Malaya either to that other part or in principle (but not in practice) to the United Kingdom.

Executive Measures: the Powers and their Use

Arrest and detention without trial Over the course of the Emergency, periodic amendment resulted in a set of overlapping regulations on detention without trial and release, subject to conditions, by suspending the detention order. The provisions are redolent of those deployed in the United Kingdom during the two World Wars. Regulation 17 itself (the initial and principal regulation) allowed the executive (the Chief Secretary) to order the detention of any person for up to one year (later increased to two years), subject to periodic review of the necessity for the detention. Such an order could at any time be cancelled by him or suspended subject to conditions. Many were: of the 29,828 orders made by the end of February 1953, 11,083 had been cancelled conditionally or unconditionally, although there is no indication of how many fell within each category.88 Regulation 24(1) enabled the police to arrest and detain for up to 28 days anyone against whom an executive detention order was pending. Later Regulation 17D enabled collective detention orders to be made against everyone in a particular village or area which was thought to have been aiding and abetting the terrorists or suppressing or failing to provide information to the responsible authorities of the activities or presence in their areas of terrorists. Just over 10,000 were held on this basis in some 20 operations. Regulation 17D also enabled selective detention orders on this basis and the conditional release under bond or orders of restricted residence to bring the persons concerned into the resettlement programme considered earlier. Some detainees were held in prison but the numbers in detention became such that most were held in camps converted, for example, from former quarantine stations, or ones which were purpose-built. A specific set of regulations governed detention centres as regards treatment and rights of detainees, on visitation, the limited work that could be required of detainees and dealing with disciplinary matters.89 It is difficult to ascertain precise and accurate figures on the numbers of people detained. Barber suggests almost 30,000.90 One official report states that some 34,000 detention orders were issued during the Emergency.91 But another comparing the emergencies in Kenya and Malaya gives average figures per year (including dependants) totalling some 43,000 over the period to mid-1956.92 The disparity (dependants) may perhaps be explicable because where other arrangements could not be made for children, female detainees could have them with them in the camp.93 In addition those detained awaiting deportation consisted of the principal deportee whose conduct grounded deportation and his or her dependants. The available figures do not distinguish detainees by sex, but the bulk of detainees were said to be Chinese males.94 A prime aim of the system, however, was not indefinite detention, but the division of detainees into those who might successfully be rehabilitated and resettled in Malaya, and those who should be removed permanently from Malaya through banishment or deportation.95

Exclusion, banishment and deportation Under the Immigration Ordinance 1952, the executive had power to ban on public security grounds persons from entering Malaya. Any order could be quashed by the Legislative Council. There was no right of appeal.96 Removal from Malay by executive order could be effected in two ways: under the Banishment Enactment; or under Emergency Regulation 17C.

The Banishment Enactment, as amended in 1948, like many such in a variety of Colonies, ostensibly enabled the removal, after due enquiry, both of aliens and British subjects, whereas as regards the United Kingdom, while there were extensive powers with respect to aliens (see chapter 4) there then existed no power to deny entry to a British subject or to deport such a person. Hence, since 1934, Governors and High Commissioners had been exhorted not to remove to the United Kingdom British subjects unconnected with it.97 In practice, citizens of the Federation of Malaya were not removed. The Enactment (apparently following the lines of the United Kingdom’s Aliens Restrictions legislation after the First World War) enabled removal through a banishment or expulsion order in relation to criminal offences on recommendation of a convicting court. It also gave power to order banishment of any person where conducive to the good of the Federation. Alternatively the subject of an order could instead be required to enter into a bond with sureties for good behaviour, failure to provide which would result in removal. The person to be banished could also be detained pending giving effect to the removal order.98 Similar powers had reportedly been used to good effect earlier in the century to deal with Chinese secret societies, organized crime, banditry, and Communist subversives.99 For several years MCP operatives were still referred to as ‘bandits’.100 Use of the powers required a due quasi-judicial enquiry, without legal or other representation, publicity or appeal, by a Banishment Officer, although this later appears to have been restricted to British subjects rather than aliens. The Banishment Officer was to liaise closely with the Police where minded to recommend a course of action other than the banishment they sought.101 The Banishment Enactment was principally used in respect of British subjects since they could not be removed under Emergency Regulation 17C.

Regulation 17C enabled the removal from Malaya by executive order of anyone subject to a Regulation 17 detention order other than British subjects or citizens of Malaya. The order could not take effect until the person had been afforded the opportunity to put his or her case to a Committee of Review (see below).

The main brake on removals was, however, logistical, at least in the early years of the Communist Government in China. Nonetheless large numbers were removed from Malaya under these powers.102 Simpson suggests that between 14,000 and 26,000 Chinese squatters were removed.103 Forster gives repatriation figures of 31,249 during the years 1948–1955: 29,287 Chinese, 1,786 Indians, 12 Ceylonese and 164 Indonesians.104 The last Director of Operations (Malaya) records only 12,190 persons deported and some 2,717 repatriated at their own request. His figures probably only reflect Regulation 17C deportations.

Detention and rehabilitation The documents available in the National Archives paint a rather glowing picture of detention, stressing the vocational training and work available as a means to rehabilitate detainees pending their resettlement in one of the New Villages or return to their community.105 Unlike Cyprus and Kenya, however, where detention conditions were controversial and there were a number of ‘tip of the iceberg’ scandals (particularly in the case of Kenya), there is little contradicting the picture in those documents apart from what seems to be dismissed as Chinese Government propaganda. But in the early years at least conditions in the camps were very far from acceptable and there were riots in some camps as late as 1955 in suppressing which the camp authorities lost control and detainees were killed.106

The bulk of the detainee population was male Chinese, and it was on these that the rehabilitation programme focused. The small number of Indian detainees and their composition in terms of age and committed Communist affiliation rendered impractical for resource reasons a rehabilitation regime for them. It was, however, hoped that some of those involved because of intimidation might safely be resettled on rubber plantations in other parts of the country. Others excluded from the rehabilitation programme were those under 18 for whom other arrangements were made in Approved Schools; those over 40 lacking literacy skills (those intimidated into involvement were instead often resettled in New Villages); and diehard Communists, attempts to rehabilitate whom would be delayed until easier subjects had successfully been rehabilitated. ‘Students’ were carefully selected after a character assessment formed by a specialist officer in the light of the person’s case history, education, background and conduct whilst in detention.

Rehabilitation was thought particularly valuable for the generation that had grown up in the social and economic dislocation of the Japanese Occupation. The programme aimed to restore its ‘students’ ‘to freedom as loyal and law-abiding members of the population who are capable of earning an honest livelihood and are opposed to violence as a means to enforce political changes’. The programme was transparent and open to public scrutiny. It involved basic education provision, vocational training (teaching a variety of relevant trades), facilities for recreation, and generally unlimited visits and letter-writing facilities. The idea was to help develop respect and public spirit, to give a good example of communal living, to counter Communist propaganda, and to renew or strengthen family ties, to which end the programme attempted to rehabilitate family and relational groups at much the same time. No one was released into the community without suitable employment and community support, in the provision of which the Malayan Chinese Association played a key role. It was reported that of 1,280 ‘graduates’ as at 1 March 1953 at one rehabilitation centre only eight again became supporters of the Communist terrorists. Of 92 released from another centre, none were known to have relapsed. Not all who embarked on the programme completed it successfully; 103 were returned to ordinary camps as unresponsive to rehabilitation.

Administrative Challenge Machinery for Exclusion, Detention, Banishment and Deportation

Those excluded under the Immigration Ordinance had no right of appeal. Detainees and deportees under Regulation 17C had a right of recourse to administrative challenge machinery. British subjects dealt with under the Banishment Enactment were the subject of the quasi-judicial Banishment Enquiry noted earlier. Aliens appear not to have been, and neither they nor British subjects appear to have had any right of appeal.

Detainees had to be told of their right to make objections.107 Most exercised it. The initial mode of recourse was to one of a number of Advisory Committees modelled on the United Kingdom’s Regulation 18B procedures during the Second World War (see chapter 2), which were established in major centres in Malaya. An administrative instruction required them to inform the detainee of the grounds for his detention, insofar as consistent with the need to withhold information ‘which might endanger the life or safety of any person or reveal sources of information’. They had no power to compel the attendance of witnesses or to administer an oath or affirmation. The detainee, however, had the right to call witnesses in support of his objections and to be legally represented by an advocate. The committees had to keep a written record of proceedings. Their task was

To direct themselves to ascertaining the character and general bearing of the detained person, to consider the evidence against him, to hear the detained person’s defence and to form an opinion on the possible repercussions of the release of the detained person on the security of the country.108

Their recommendations in their written report to the High Commissioner were merely advisory, the decision on release remaining purely executive resting with the High Commissioner.

This system operated until March 1949. To avoid undue delay in deciding cases because of the volume of work for the Colonial Executive, a three-member Review Commission had been established to consider the Advisory Committees’ recommendations.109 From March 1949 the system was further decentralized. New Committees of Review replaced the Advisory Committees and could make binding executive decisions on detention or release. The Committees of Review were chaired by someone holding or who had held judicial office or office as a Government law officer. One member of what was usually a triumvirate had so far as possible to be of the same race as the detainee. The Committees of Review operated in much the same manner as the previous Committee, although in 1950 the administrative instruction about as full a disclosure as was consonant with security was made statutory. They could order continued detention or conditional or unconditional release. They could also recommend admission to the rehabilitation programme. In cases of doubt, they could refer a case for decision to the central Review Commission established under Emergency Regulation 17(4B). This, chaired as at 1 March 1953 by the acting Attorney General, had the same powers as other Committees of Review. By 1955, although detention could be for up to two years, the Committees were not usually willing, absent very strong evidence, to allow detention to continue beyond six months, something the military considered rather vitiated the value of the detention provisions.110 In addition, a detainee could request the Chief Secretary in the executive branch of government periodically to reconsider his case. He could confirm or cancel the existing order of detention or make another to take effect when the extant one expired. There appears to have been an automatic review after 18 months.

Clutterbuck considered that the committee’s proceedings were conducted as openly as security allowed.111 Recourse to the Committee and/or the Chief Secretary procured release in just over a third of cases in the period June 1948 to 1 March 1953. Others were released when orders lapsed after two years and were not renewed.112 There are, however, some disturbing statements which can be interpreted as casting some doubt on the independence of the Committee in a Memorandum from the Secretary of State for the Colonies to the Cabinet’s Malaya Committee.113 It deals with instructions to the Committees from the Malayan Executive. Those instructions stressed the need to give

… the fullest weight to the need for retaining in detention any persons who might, if released, afford assistance of any kind to the terrorists. They were also advised that if, after considering a case any reasonable doubt remained, they should resolve the case in favour of continued detention rather than release. Early in 1950 there were indications that some Committees of Review were taking too lenient a view and that some detainees were being released against the advice of the police. A further instruction was therefore addressed to Committees of Review on the 31st March 1950 drawing attention to the dangers of ordering release in any doubtful case.

A further instruction told Chairmen to refer upwards to the Review Commission all cases where the Committee was minded to release conditionally or unconditionally but the police had objections. The Secretary of State noted the composition of the Review Commission. The Chairman, a British official, was the Registrar of the Supreme Court. His ‘wingmen’ were another British official, the Secretary for Chinese Affairs, and a Malay, the Chief State Minister (Mentri Besar) of Selangor. The Secretary of State commented:

The composition of this body is such that there can be no danger that instructions issued to it by the Federation Government will not be fully implemented. The High Commissioner has in fact given me an assurance that there will be no danger henceforward of detainees being released where such releases would have untoward consequences.

There was thus no danger that the prospect of too easy release would deter the police from applying for detention orders.

From January 1953 an administrative scheme – operating in addition to the modes of challenge so far discussed – saw the need for detention periodically (about every nine months) reviewed within the executive, taking full account of the view of the relevant police and detention authorities, generally involving a further police interview of the detainee. These reviews were instituted because as the emergency went on and was successfully being combated, the changing security situation rendered it safer to release detainees.

The Role of the Courts

Recourse to the courts by excludees, detainees, deportees or those subjected to banishment finds no mention in the material surveyed in the National Archives. The Malayan Law Reports and the Malayan Law Journal for the period report two successful habeas corpus applications in respect of banishment. The first was by a natural-born British subject exempt from the process.114 The second found a punctuation error in the provision and read the phrase ‘if he deems it to be conducive to the public good’ as one qualifying the power to banish on conviction by a competent court rather than, as intended, a separate head of power to banish.115 This presumably was not thought problematic given powers under the ER and the banishment process becoming less important in the campaign against the MCP. No change was made until the Banishment Ordinance as a whole was replaced with another in 1959, after independence. Otherwise these reports are rather replete with cases from the criminal process connected with the ER. They deal with such matters as the meaning of ‘consorts’, the requisite of knowledge for possession of, or consorting with someone with, a firearm, the meaning of ‘within doors’ as regards branch of curfew rules, and a variety of matters evidential (admissibility of confessions, corroboration requirements). There were a number of appeals against sentence in death penalty cases, some going all the way to the Judicial Committee of the Privy Council, the final appeal court for the colonies, sitting in London.

The European Convention on Human Rights

The ECHR had been extended to Malaya as to other colonies despite the existence of the emergency and without any searching appraisal of which laws might not be compatible with it. The United Kingdom Government, however, entered a notice of derogation under the public emergency clause in Art. 15. The reasons given for derogation provided on 24 May 1954 in a notice of derogation covering five colonies in all were deliberately minimal: in respect of Malaya and Singapore it was ‘owing to a conspiracy to overthrow the lawfully constituted government of these territories by force’.116 No detail of the scale of the emergency or the text, nature and use of the emergency powers was provided. Nor was the Secretary-General of the Council of Europe kept informed of changes through further notices of derogation, even when the emergency in Singapore had ended.117 The impact of the ECHR was, however, emasculated by not recognizing the right of individual petition. Nor, unlike the position with Cyprus, did any other State Party to the Convention have any direct political axe to grind such as to motivate an inter-State application. None seems to have shown any interest in interfering with the exercise of colonial power so far from Europe.

The Cyprus Emergency

Introduction and Overview

Cyprus, an island in the eastern Mediterranean, lies at the junction of three continents (Europe, Asia and Africa) and has long formed a trading crossroads between Orient and Occident. Despite its small size (some 3,752 square miles, 141 miles long by a maximum of 59 miles wide), its location has made it of strategic importance for a variety of countries and groups over the ages: the Byzantines; the English/Norman Crusaders seeking to free the Holy Land from the Saracens; the Latin House of Lusignan; the Venetians; the Ottoman Turks; and the British Empire. In 1878 at the time of the Congress of Berlin, Turkey retained nominal sovereignty but ceded effective control to Britain to use as a military assembly point in the event of conflict with Russia. For some significant time, Turkey has seen Cyprus as important to its security. But the transfer also enabled British protection of the island’s Christian population.118 The mainly Greek population of the island, however, has seen itself as part of a wider Hellenic world recreated after Greek independence from Turkey in the first part of the nineteenth century. The island has never belonged to Greece. Britain annexed Cyprus in 1914 when Turkey came into the War on the side of Germany and Austro-Hungary. It was prepared to cede it to Greece during the First World War in return for Greece coming into the War on the side of the Allied Powers. Greece never did. In the Treaty of Lausanne, which put an end to the Graeco-Turkish War, Turkey renounced its sovereignty over Cyprus in favour of the United Kingdom. Various attempts to create constitutional arrangements which would involve Cypriots in decision-making failed, with the Greek Cypriot community largely in favour of enosis (union) with Greece. From 1931, ‘Cyprus became a bizarre anomaly: a colony with some half-million inhabitants, located within Europe, lacking any central democratic institutions whatsoever’.119 Matters came to a head from 1954 when an out-of-touch Cyprus colonial Government (too much of the senior civil service was British rather than Cypriot) badly underestimated Greek Cypriot feeling on enosis, attributing it to a few malcontents and churchmen rather than seeing it as one shared by the majority of the Greek Cypriot community.120 With a degree of support (at least as regards violent sabotage) from Archbishop Makarios, the primate of the Orthodox Church in Cyprus, EOKA (National Organization of Cypriot Fighters), a Greek Cypriot paramilitary organization (‘terrorist’ or ‘freedom fighters’ depending on the perspective of the observer), commenced on 1 April 1955 its campaign of violence designed to bring Greek Cypriot demands for self-determination to the attention of the world community. The Cyprus Government’s reaction to it produced the resignation of the two appointed Greek members of the Governor’s Executive Council.121

In the mid–late 1950s, the period with which this section is concerned, the Cyprus population was some 520,000: 80 per cent Greek Cypriot (416,000), 18 per cent Turkish Cypriot (93,600) and 2 per cent other. Living patterns were such that Turkish Cypriot minority was spread out across the island and at no one point did it form a numerical majority. A formal State of Emergency in response to increasing EOKA violence was proclaimed on 26 November 1955 by Governor Harding under a 1939 United Kingdom Order in Council issued to ensure that Colonial authorities had a sufficiency of powers to deal with the exigencies of the Second World War.122 It enabled the promulgation of two main sets of Emergency Regulations giving wide powers to the executive authorities: the Emergency Powers (Public Safety and Order) Regulations;123 and the Emergency Powers (Collective Punishment) Regulations.124 The Emergency formally came to an end on 24 December 1959 following the EOKA ceasefire. But either side of that formal period of emergency there existed a de facto emergency responded to by the terms of the ordinary law or by specially enacted time-limited laws that would be categorized as ‘emergency’ legislation. That de facto emergency began on 1 April 1955125 and continued at least in terms of available laws until Cyprus independence in 1960.126 During the period at issue, a peak of 40,000 British military forces plus a 400-strong Turkish militia and a mixed police force were confronted by some 300 EOKA guerillas, who were supported financially, materially and politically by a far greater number of Greek Cypriots. Casualty figures seem small in comparison with some other conflicts: 104 members of the British Forces were killed, 84 Turkish Cypriots died and 366 Greek Cypriots (200 of whom were killed by EOKA as informants or opponents of the EOKA cause). The campaign was initially directed against the police, the military and the administration, but also saw attacks in which the wives of British Service personnel were targeted and killed. In 1958 in particular, violence became inter-communal. Turkish Cypriots had in 1957 developed their own, violent paramilitary organization, TMT (Turkish Defence Organization). Although Grivas and his fighters had mountain hideouts, this was an urban guerilla conflict, more closely resembling that in Northern Ireland (see chapter 3) than those in Malaya or Kenya.127

The United Kingdom’s prime interest in remaining in control of Cyprus was strategic rather then economic. It reflected its removal from Palestine in 1948 and being compelled in July 1954 to close its military base at Suez in Egypt because of pressure from its Arab nationalist government under President Nasser. Its Middle East Combined Headquarters had consequently been moved to the island in December 1954. The politics of a Conservative party stung by the Suez withdrawal meant that the Eden Government could not contemplate retreat from Cyprus as well. As for military requirements, in mid-July 1955, a report to Cabinet from the Chiefs of Staff was yet again categorical:

We are not competent to comment on the many complex political factors involved in the problem of Cyprus, but we are of the opinion that our military requirements within the Island can only be met if the control of its administration in matters of defence, external affairs and internal security remain in British hands.128

The exertion of influence in the Middle East, meeting the United Kingdom’s treaty obligations, moving towards a Middle East Defence Force and defending the area in war, all required the stationing of military forces in that theatre. Militarily that required an area able to ensure security of tenure, reliable public utilities and the ability to come and go in complete freedom. Cyprus was the only territory in the Middle East satisfying those conditions. It was ‘of outstanding importance not only to British military effort but to Middle East defence as a whole’.129 Turkey, a key element in NATO’s eastern defences against possible Soviet aggression, regarded Cyprus as ‘the keystone of British military effort and prestige in the Middle East and as the focal point of [British] influence in the area’.130 Charles Foley, the editor of the Times of Cyprus from 1955, records being told by the poet and author, Laurence Durrell, the Colonial Government’s Information Officer, on arrival in Cyprus as a Daily Express correspondent, that despite Britain’s commitment to the principle of self-determination, it was simply for these reasons ‘not on’ for Cyprus, the more so since the Turkish Cypriot minority (18 per cent of the Cyprus population) as well as Turkey as a NATO ally, were opposed to the Greek Cypriot demand for union (enosis) with Greece. While Greece was also an important NATO ally its Government was too unstable to allow the island to pass to it, even with guarantees for British strategic bases on the island; hence, a Colonial Office minister’s apparent statement to Parliament in July 1954 that Cypriots would ‘never’ be ready to decide their own future or to become independent.131

British military and political needs thus clashed directly with the aspirations of a majority of Greek Cypriots for enosis, a demand increasingly politically popular within a Greece recovering from civil war and its defeat of communism. British needs meshed very well, however, with the desires of the Turkish Cypriot community for retention of the status quo which also suited the strategic needs of Turkey, the south-eastern coast of which is only some 43 miles north of Cyprus. Greek Cypriots were not, however, in total unity. Like mainland Greece, Greek Cypriots had their own strong left-wing element in AKEL (the Communist party). Politically it was less nationalistic. As in other colonial emergencies, the Government deployed a range of security measures to deal, not always successfully, with the insurgency and the violence. These measures are examined in the next section of this account. It also sought, unsuccessfully, to win the hearts and minds of the Greek Cypriot majority with a variety of social and constitutional measures to enable a degree of self-government while preserving British strategic interests in terms of control of bases on the island. Retention of the status quo, enosis, or a degree of self-government in a unitary or partitioned island were all possible outcomes. It is rather ironic that the eventual outcome – an independent Cyprus with a complicated and ultimately unsuccessful power-sharing constitution to reconcile divided communities scarred by inter-communal conflict – was not one favoured at the outset by any of the protagonists. It is also ironical, however, that the outcome – the retention in an independent Cyprus of two sovereign military bases – has given Britain since 1960 essentially what the Chiefs of Staff said were required in 1955. What then was achieved by the EOKA campaign and resistance to it? Writing in 1978, Crawshaw probably hits the mark.

The EOKA rising, however, backed by an intensive political campaign, played a part in forcing the British to look at the Cyprus problem in a new light. The changing strategic needs brought about by the development of faster aircraft, the lapse of treaty obligations in the Middle East and by the aftermath of the Suez crisis would have forced them to do this sooner or later. At best it can be said that Grivas [the EOKA leader] helped to bring colonial rule to an end a few years earlier than the British intended. Against this achievement the EOKA campaign left in its wake a bitter division of loyalties between the Greek Cypriots and intensified the animosity of the Turks – both factors which have bedeviled the island’s politics for more than a decade.132

The constitutional steps to win hearts and minds and bring a stalemated conflict to a close are examined after a more detailed consideration of the security and anti-terrorism measures adopted by the colonial government and the legal challenges to them both in Cyprus and internationally.

Nature and Use of Security/Anti-terrorist Powers

The broader legal and political context This section focuses principally on the deployment of three ‘security’ powers: detention without trial; restriction on residence and movement; and deportation, exile or banishment from Cyprus. These powers operated not in isolation but in interaction with each other and against a well-filled backdrop of criminal laws and other emergency powers. All of the powers operated against a United Kingdom political context in which Government policies and action, set as they were firmly against self-determination, came in for attack from a vocal opposition on both Labour and Liberal benches. The overwhelming political interest in the matter of Greece, a fellow State Party to the ECHR, also meant that human rights matters which formed part of that United Kingdom political and constitutional discourse, were brought before the competent organ of the ECHR, its Commission of Human Rights in that Convention’s first inter-State case. Each of these discourses in their own way set limits on what could be done in a way that seems singularly absent in the Malaya Emergency examined earlier. In addition, the need to draw the protagonists, including the Greek Cypriots through Archbishop Makarios, the head of its autocephalous Greek Orthodox Church, into a political settlement of the problem heavily influenced what powers could be introduced and when and against whom they could be used. The prospect of withdrawal of some of the powers (mainly those unused or little used) was also used as a bargaining tool during negotiations.133

As regards the context of the wider criminal law and process, the authorities were not short of available criminal offences to deal with subversion, sedition and violence. The Criminal Code contained a variety of serious offences against the person. Murder attracted the death penalty. In many respects Cyprus’s sedition law emulated that of the United Kingdom, which required proof of an intention to incite violence, but went wider in criminalizing an intention to bring about a change in the sovereignty of the colony. The Emergency Regulations created a number of further offences: interference with communications, unlawful drilling, unlawful wearing of uniforms, causing disaffection, looting and kindred offences. Harbouring an offender was criminal. The Regulations criminalized, subject to a mandatory death sentence, discharge of a firearm at any person, persons or places where people congregated; the throwing, igniting or depositing of any bomb, other explosive or incendiary device with intention to cause injury or death; and carrying or having in one’s possession or control any firearm. The exaction of the death penalty was controversial, made martyrs of those executed and alienated Greek Cypriot opinion and opinion in Greece, anger being reflected in violent demonstrations. Indeed, Simpson likens their effect to those that took place in Ireland after the Easter Rising of 1916 (see chapter 3).134 In response to the executions of Karaolis and Demetriou, EOKA killed two soldiers it held as prisoners.135 Only nine people were executed, and seven of the cases involved a killing. A prime role of the mandatory death sentence was to impel those who might face it to give information when interrogated. Those who did were never executed.136 Otherwise pleas for clemency were seldom successful under Governor Harding.137 The right to impose capital punishment was expressly recognized in the ECHR’s right to life provision138 and resort to it was common in Europe. At the time there were about 12 executions a year in the United Kingdom.139 But it is ironic that in Cyprus the range of offences attracting the penalty increased while in the United Kingdom there was an ongoing debate on ending capital punishment for murder.140 Almost as controversial was Regulation 75 which permitted an alternative sentence to fines or imprisonment. It allowed convicted males under 18 to be sentenced to be whipped, that is, given up to 12 strokes of a light rod, cane or birch. It was said to be justified to deal with EOKA’s use of schoolchildren in rioting and in the painting of slogans. It was unusual in Europe. As at 9 July 1956 118 young people had been sentenced to it and 96 sentences had been carried out.141 The Regulations enabled extensive control and censorship of publications, post and radio. They sanctioned control of ports and the movement of ships and aircraft. They enabled control of other transport, meetings and places (for example, closing premises and places of public entertainment) and of burials. There were wide powers of requisition of property. The Regulations forbade the ringing of bells, the flying of flags, and enabled control of lights and sounds. They conferred wide powers of stop and search and to enter and search premises. Swimming could be prohibited. Curfews could be imposed and were, not only to maintain order but by way of punishing a particular area or community. Although the Colonial Office was not altogether happy with them, the second code of Regulations enabled the imposition of collective punishment.142 A District Commissioner (with the Governor’s approval) could punish with a collective fine the inhabitants of an area where there had occurred in that area an offence prejudicial to internal security or public order or loss or damage of property had been caused. He could only do so, however, if they could be said to be ‘responsible’. This was construed widely and would cover their failure to co-operate with the authorities in respect of the offence or their failure to have taken reasonable steps to prevent its commission. It could also be imposed where there had been a series of offences in the area if he believed that the inhabitants had been generally responsible for those offences. The imposition of a fine required an enquiry and the inhabitants being allowed to make representations.143

Detention without trial Two legal regimes operated, for most of the period concurrently, during the Emergency: the Detention of Persons Law 1955;144 and (after the declaration of a State of Emergency on 26 November 1955) Regulation 6 of the Emergency Powers (Public Safety and Order) Regulations 1955.145 The former was used against those connected with or assisting EOKA. Detention under the Regulations was instead targeted on the Communists (AKEL). Unlike Malaya, there was no power of collective detention.

The decision to proceed with the Detention of Persons Law was taken by the Cabinet in London on 12 July 1955.146 The Governor, Sir Robert Armitage, had wanted for some time to be allowed to declare a State of Emergency and had on 28 June asked to be allowed to do so at any time after 1 July in order to restore morale and confidence, to be able to negotiate from a position of strength and to give the police and the military the powers they required to deal with a deteriorating situation. He wanted to be able to seize the 150–200 active, militant members and supporters of EOKA but not bishops or leading intellectuals.147 The Secretary of State’s reply the next day told him to make no such preparations as these ‘might be a most serious setback to the prospects of successful discussions with the Greeks and the Turks’ in the envisaged tripartite talks between those governments and the United Kingdom.148 The Governor expressed concern that without secret planning for a detention operation lives would be put in jeopardy.149 He then sought permission to proclaim an emergency from 8 July both to support the police and demonstrate that EOKA could not act with impunity.150 The Secretary of State replied the same day that such a declaration would damage talks with the Greek Government. Instead he suggested the enactment of a specific, time-limited, detention law.151 A ‘very happy’ Governor Armitage cabled back with the text of the draft law. He said that he had preferred to proceed in this way all along but had been advised that the Secretary of State would not approve that course of action.152 On 7 July, Cabinet was advised that the Government had decided to proceed in this way rather than through by declaring a State of Emergency which would have been inexpedient on the eve of the forthcoming tripartite Conference, the details of which were considered by Cabinet at this same meeting. Cabinet was informed that it was now proposed to detain without trial only 50 members of EOKA, the terrorist organization plotting to use violence against the police and members of the administration in Cyprus. Cabinet agreed that this was the best way to proceed, but that the Secretary of State

… should satisfy himself that the Governor had ample evidence to justify the enactment of a measure of this kind – especially as the situation in Cyprus had become so much quieter since the announcement of the forthcoming conference. Even if such a law was still necessary, it was for consideration whether its application might not be limited to the organisation of acts of violence. Was it necessary that it should extend also to the conduct of revolutionary propaganda?153

The Secretary of State stated that he ‘fully recognised the disadvantages of taking repressive action at this juncture’ and that he would discuss the law and these issues further with the Governor.154

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