The 1975 Essential Security Cases (Amendment) Regulations (Escar) remains a good law and can still be used in prosecuting the 29 Al-Ma'unah members for "treason", the Kuala Lumpur High Court heard today.

Attorney-General Mohtar Abdullah said the provision in Escar providing rights of appeal for the accused persons and the prosecutor straight to the Federal Court was in accordance with the Federal Constitution.

"Federal Court has the jurisdiction to hear appeals not only from the Court of Appeal but also straight from the High Court ... it is not unconstitutional for a regulation to allow for an appeal straight to the Federal Court by side-stepping the Court of Appeal," he said.

He also said that despite the various changes in the formation of Federal Court to Supreme Court and back to Federal Court, this court remains the highest court on land.

He said the position of the former Supreme Court was the same as the present Federal Court.

He said right of appeal to any court depends on the legal provisions which are available, adding that by this, an appeal straight to the Federal Court as ascribed by Escar was valid.

Trial can proceed

Mohtar added that even if the provision in Escar relating to the right of appeal was invalid, it does not make the whole regulation invalid.

"The trial can still proceed under Escar," he said.

Mohtar was replying to submissions made by Karpal Singh, counsel for the Al-Ma'unah leader Mohd Amin Mohd Razali, that the prosecution under Escar was invalid and the trial should be stopped.

Karpal objected to the use of Escar on the grounds that 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).

The 29 Al-Ma'unah members, charged for waging war against the Yang di-Pertuan Agong, are being prosecuted under Escar and not the commonly used Criminal Procedure Code.

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 ([#2] Twenty-nine Al-Ma'unah members claim trial

, Aug 9).

They are alleged to have stolen a cache of weapons and ammunition from two military camps by impersonating as army officers in the early hours of July 2. King's prerogative Mohtar also said the King can make a proclamation of an emergency without the advice of the cabinet or any ministers.

He added that the Federal Constitution was clear in stating that the King may issue the proclamation if he is satisfied that there is a need for one.

"It (the proclamation) does not require the advice of anyone, not even cabinet or any minister. In real essence, the power to act is with the King to act on his own volition," said Mohtar.

Yesterday Karpal said the 1969 proclamation was invalid as it was made by the King without the advice of the cabinet. He added that the cabinet could not have advised the King as it had ceased to exist then as Parliament had been dissolved for the general election.

Mohtar replied that the Federal Constitution, as it was then and now, gave powers to the King to act on his own.

"In practical reality, the prime minister will advise the King, but he (the King) may choose not to adhere to it," he said.

However, he added that constitution amendments in 1984 temporarily took away that power from the King and gave the prime minister the right to declare emergency if he sees it necessary.

The Attorney-General said the position reverted to the old one following another amendment as a result of much protest from certain quarters. No powers to PM This explanation from Mohtar brought some rebuff from Karpal who said that the amendment giving the powers to the prime minister was never made.

Karpal told the court that while the amendment Bill was being debated in Dewan Rakyat, this particular provision was recalled by the government following strong protests.

"It is startling to see it now as a part of the law ... it is something which did not go through the process at the Parliament but still it has been given the royal assent," he said.

Justice Zulkefli Ahmad Makinudin said he had noted the point but Karpal insisted that the matter be checked to see how a piece of withdrawn legislation could end up in the Act.

Mohtar said he will check and inform the court on Monday when the hearing continues.

Earlier, Zulkefli did not allow other defence counsel to submit on the objections raised by Karpal. Following that, all the lawyers said they support Karpal's submissions.