Updated version The Kuala Lumpur High Court this morning ruled that an "emergency" regulation used in prosecuting the 29 Al-Ma'unah members for "treason" is valid.

Justice Zulkefli Ahmad Makinudin said that under the 1975 Essential Security Cases (Amendment) Regulations (Escar), defendants do have a right of appeal to the Federal Court as the Supreme Court is the same as the Federal Court.

"It is my view that the amendment made to the Federal Constitution is nothing more than the change of names of the courts. It does not alter or abolish the status of the Federal Court and it remains the highest court in the country," said Zulkefli.

He said all reference to the Supreme Court in Escar could be construed as reference to the Federal Court.

He said this in dismissing a preliminary objection raised by defence counsel Karpal Singh, who is representing Al-Ma'unah leader Mohd Amin Abdullah, to the use of Escar in the prosecution of the case and argued that the trial should be halted immediately.

Karpal had submitted to the court last Thursday that Escar was invalid on two grounds: firstly, it gives a right of appeal only to the Supreme Court, which does not exist now; and secondly, the regulations were enacted under an Act passed by reason of the proclamation of emergency in 1969 and that proclamation itself is invalid ([#1]Escar invalid, hence should not be used in trial, says lawyer[/#], Sept 27)

Zulkefli said he agreed with the submissions made by Attorney-General Mohtar Abdullah that right of appeal to any court depends on the legal provisions which are available and that by this, an appeal straight to the Federal Court as ascribed by Escar was valid.

Therefore it is not unconstitutional for there to be a right of appeal straight to the Federal Court, by-passing the Court of Appeal, said Zulkefli.

He also added that Regulation 26 of Escar which provides for the right of appeal to the Supreme Court was severable form Escar and can exist independently.

"Even if this court were to strike down Regulation 26 as null and void, it does not invalidate the use of Escar in this case," he added.

King can declare emergency unilaterally

On the second ground of Karpal's preliminary objection, justice Zulkefli said the King has the right to proclaim a state of emergency on his own without taking the advice of the cabinet.

He said the proclamation of emergency in 1969 was within the royal prerogative of the King, in which case he could act personally.

Karpal had submitted that the proclamation of emergency dated May 15, 1969 was null and void, as such the Emergency (Essential Powers) Act 1979 which created Escar too was invalid, making the regulations invalid too.

Karpal said the Federal Constitution provides for the King to act on advice of the cabinet to proclaim an emergency, but at that time, the Dewan Rakyat had been dissolved to enable elections to be held on May 10, 1969, adding that even assuming the King acted on the advice of a caretaker government, the proclamation would still be invalid as caretaker government could only carry day-to-day administration.

On this, Zulkefli said even if the Parliament had been dissolved for elections at that time, the cabinet still existed and could advise the King in its capacity as the caretaker government.

"To my mind the caretaker government can advise the King on policy matters which include national emergency but it is up to the King whether to act or not," he said.

Stay of proceedings dismissed

Zulkefli also dismissed an application by Karpal for a stay of the proceedings pending his appeal to the Federal Court.

"If the ruling made by this court today is reversed by the Federal Court, particularly in regards to the validity of the proclamation of emergency, the effect will be that Escar will be invalid and thus this trial will be invalid too," said Karpal in making the application..

Senior deputy public prosecutor Abdul Gani Patail said a stay should not be granted as the prosecution has spent much public money in bringing witnesses from East Coast and providing accommodation for them.

He said many witnesses have also been issued subpoenas to testify, adding that further delay would also cause injustice to the 29 accused persons.

Zulkefli, who adjourned the sitting for 30 minutes to decide on this matter, ruled that stay was not to be granted "for the sake of the accused persons and in the interest of the public".

He said by continuing of the trial, it would not affect the rights of anyone and said he will proceed with the trial until its disposal.

Change of venue

The trial of the 29 will continue tomorrow morning at the Pusat Latihan Polis (Pulapol - Police Training Centre) in Jalan Semarak where the prosecution will tender as exhibits all weapons and ammunition stolen from two army installations.

The 29 Al-Ma'unah members are being charged for waging war against the Yang di-Pertuan Agong and prosecution is being done under Escar and not the commonly used Criminal Procedure Code ([#2]Twenty-nine Al-Ma'unah members claim trial[/#], Aug 9).

They are alleged to have committed the offence between June and July 6 at Pos 2, Km 19, Kuala Rui, Jalanraya Timur-Barat, Grik; Batalion 304, Infantri (AW), Kem Grik, Grik; and in Bukit Jenalik, Sauk, all in Perak.

They are alleged to have stolen a cache of weapons and ammunition from two military camps by impersonating army officers in the early hours of July 2.

Previous stories

[#3]Decision on validity of Escar in 'treason' case tomorrow[/#], Oct 2

[#4]AG demands apology from Karpal[/#], Oct 2

[#5]Escar still good law, says AG[/#], Sept 28