The 1975 Essential Security Cases (Amendment) Regulations (Escar) constitutes draconian legislation which departs radically from the ordinary rules of evidence and procedure, a lawyer told the Kuala Lumpur High Court today.

Karpal Singh, counsel for Al-Ma'unah leader Mohd Amin Mohd Razali, said that as such, Escar should not be used in prosecuting the 29 Al-Ma'unah members for "treason".

Escar was invalid, null and void and of no consequence and thus the trial should be "halted in its tracks", said Karpal.

He added that the court should consider whether or not a new trial ought to be ordered.

Karpal was submitting to the court his objections to the use of Escar and not the commonly used Criminal Procedure Code to prosecute the 29 members of the group for waging war against the Yang di-Pertuan Agong ([#1] Twenty-nine Al-Ma'unah members claim trial [/#], Aug 9).

He earlier withdrew his application filed in the court on Sept 19 on the same matter ([#2] Lawyer files motion to declare 'treason' trial invalid [/#], Sept 19).

His application was to be heard tomorrow, pending all filing procedures being complied with, but it has now been fixed to be heard next Monday.

However, at the start of today's hearing, Karpal informed justice Zulkefli Ahmad Makinudin that he was withdrawing that application and would like to make an oral submission on a similar objection.

In his submission, Karpal said 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.

Right of appeal

Karpal said regulation 26 of Escar gave the accused person and the prosecutor the rights of appeal from High Court to the Federal Court and by the passing of the Courts of Judicature (Amendment) Act in 1984, the Federal Court was substituted by the Supreme Court.

He said the 1984 Act had a provision making the change applicable to all other written laws.

When the 1994 Courts of Judicature (Amendment) Act was enacted, Federal Court was introduced again in place of the Supreme Court in the main 1964 Courts of Judicature Act but all other written laws remain unamended, said Karpal.

'This means regulation 26 of Escar remains unamended up to now. Appeals from the High Court can only go to the Supreme Court, which does not exist," he said.

"It is submitted the right of appeal accorded to the accused under regulation 26 is a matter of substance, and not a mere matter of practice and procedure and such a right has accrued to all accused from the commencement of the trial."

He added that since Supreme Court does not exist anymore, the question of interpreting regulation 26 does not arise.

"The right of appeal given to a non-existent court is a contradiction in terms, it is an impossibility. Escar has to be strictly construed as the life and liberty of all the accused are involved," he added.

Proclamation of emergency invalid

Karpal also said 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.

"On May 15, 1969, there was no cabinet ... the King could not have acted on the advice of the cabinet as the cabinet ceased to exist as the Dewan Rakyat had been dissolved," he said.

He added that even assuming the King acted on the advice of a caretaker government, the proclamation would still be invalid as a caretaker government could only carry day-to-day administration.

"It is submitted a caretaker government could not lawfully advise the King to declare an emergency and as such the proclamation of emergency by the King on May 15, 1969, is invalid."

Following this then, Karpal said, Escar too will be invalid as it was a creation of an Act enacted due to the emergency.

Attorney-General Mohtar Abdullah will reply tomorrow following other submissions in support of Karpal by other defence counsel.

Mohd Amin and 28 others 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.