updated version

A five-member Federal Court panel today dismissed an appeal by Al-Ma'unah cult leader Mohd Amin Mohd Razali and three others against the use of a security law in their prosecution for treason.

The four had appealed against a High Court decision on Oct 3 last year which ruled that their prosecution under the 1975 Essential Security Cases (Amendment) Regulations (Escar) was valid.

Mohd Amin's counsel Karpal Singh had sought the trial to be stopped on the basis that Escar was invalid for his client's prosecution.

Karpal had argued that Escar was invalid on the grounds that the regulations were enacted under an Act passed by reasons of the proclamation of Emergency during the May 13, 1969 riots and that the proclamation itself was invalid.

The senior counsel contended that the proclamation was passed by the Yang di-Pertuan Agong without the consent of the government at that time as Parliament had already been dissolved to be replaced by the National Operations Council.

Not unconstitutional

Delivering his written judgement, Justice Ahmad Fairuz Sheikh Abdul Halim, one of the five Federal Court judges, said that Karpal's arguments were 'devoid of merits'.

"A caretaker government can exist under our Constitution and in fact did exist on May 15, 1969. In the circumstances, the May 15 proclamation of emergency could not be unconstitutional and invalid.," Fairuz said.

(Under Article 150 of the Federal Constitution, the Yang di Pertuan Agong may proclaim a state of emergency in Malaysia but his powers are circumscribed by Article 40 which explains that he must act under the advice of Cabinet.)

Justice Fairuz' colleague Justice Abdul Malek Ahmad also agreed on this point saying that even if Parliament is dissolved, it does not mean that the machinery of the government stops completely.

"This argument is totally devoid of merit as if one component of Parliament is dissolved, the whole is automatically dissolved," Malek said.

Waging war

Chief Justice of Malaysia Mohamed Dzaiddin Abdullah, Chief Judge of Malaya Wan Adnan Ismail and Chief Judge of Sabah and Sarawak Steve Shim Lip Kiong concurred with the decisions of the other two judges, making the dismissal of Mohd Amin's appeal unanimous.

Mohd Amin and 28 others were charged under Escar, and not the commonly used Criminal Procedure Code, for waging war against the Yang di-Pertuan Agong by allegedly carrying out an arms heist from two military camps on July 2 last year.

Mohd Amin and 18 others are currently on trial while ten others of the militant Islamic cult have been sentenced to 10 years jail each after having pleaded guilty to a reduced charge.