DAP Secretary-General and MP for Kota Melaka to-day issues the following statement:
DAP to take the Barisan National Government to COURT to challenge the illegality and unconstitutionality of the Essential (Security Cases) Regulations.
The DAP has decide to take the Barisan National Government to COURT to challenge the illegality and unconstitutionality of the Essential （Security Cases） Regulations.
As I said in my initial press statement on the Essential (Security Cases) Regulation 1975 on 3rd October, 1975 I had asked the party’s legal advisers to study the illegal and unconstitutional character of the Regulations.
The enactment of the Essential (Security Cases) 1975 with such far-sweeping changes in the legal, constitutional and basic rights of Malaysians without prior parliamentary approval is a clear-out usurpation of Parliamentary powers and functions.
In February this year, the Barisan National Government also tried to ursup Parliamentary powers by forcing a Parliamentary by election to be held in Menglembu when it was clearly provided in the Constitution that this was unconstitutional and when Parliament itself had not been convened to make any determination on the matter.
Just as the DAP had taken the Barisan National Government to COURT to challenge its ursupation of parliamentary powers and unconstitutional action, and now, similarly, we have now decided to take the Barisan National Government to COURT again to challenge the unconstitutionality and illegality of its Essential (Security Cases) Regulations 1975.
The Essential (Security Cases) Regulations abrogated the constitutional rights of a Malaysian to be brought before a magistrate’s court within 24 hours of his arrest, for the Regulations allow the arrest of a person suspected of committing a security offence by the Police without a warrant for as long as 60 days.
Clearly illegal and unconstitutional is the complete over-turning of the basic principle of law and rules of evidence enacted by Parliament by the mere gazetting of the Essential (Security Cases) Regulations, the most obnoxious of which are:
1. an accused has to prove innonence is security cases;
2. allowing prosecution witnesses to give evidence in camera in the absence of the accused and his counsel or where the witness is testifying in camera but in the presence of the accused, the witness would be allowed to wear a mask or hood. Questions likely to cause the witness to betray his identity will not be allowed;
3. trial without jury in security cases;
4. limited rights of appeal, uncluding the right of appeal to the Privy Council although an accused can be sentenced to death
There are also unfair provisions concerning appeals like Clauses 30(1) which provides that a person who has been sentenced to less than three months jail for a security offence has no right of appeal, while the Government can appeal against this sentence as being too light.
5. oppressive provisions in the Regulations where a person arrested for a security offence punishable with death or imprisonment life cannot be released even if he is acquitted should the government want to appeal against his acquittal. This is contained in Clause 5 of the Regulations;
6. the status of the Regulations and Orders made under the Regulations by the Minister responsible as a higher law to the laws passed by Parliament.
The Party’s lawyers have been instructed to initiate proceedings to challenge the Security Cases Regulations.
Due to legal technicality, it is not as yet possible to challenge the Emergency (Security Cases) Regulations in COURT directly as this would have to wait for the first accused to be charged for the security offences under the said Regulations.
The Party’s lawyers will be challenging the Essential Security Cases Regulations indirectly by challenging the Emergency (Community self-Reliance) Regulations 1975 or the Rukun Tetangga Essential Regulations.
As both the Essential (Security Cases) Regulations 1975 and the Essential Rukun Tetangga Regulations 1975 are made by virtue of section 2 of the Emergency (Essential Powers) Ordinance No.1 (1969), a COURT DECLARATION that the Rukun Tetangga Essential Regulations are null and void would be tantamount to a DECLARATION that the Essential (Security Cases) Regulations 1975 are also null and void.
I wish here to make it very clear that the DAP believes in the principle of community self-help and co-operation to maintain local peace and order. However, the DAP cannot support illegal ways. The Government has gone about in gazetting the Rukun Tetangga Regulations without Parliamentary approval. Furthermore, some of the provisions in the Essential Rukun Tetangga Regulations also provide vast opportunities for wide abuse of powers and elevation of these regulations into a pedestal higher than that passed by Parliament.
Thus, Clause 5(2) of the Rukun Tetangga Regulations provides that “an Order made under these Regulations may provide for admissibility or non-admissibility of evidence, burden of proof, the inclusion of any evidence as a defence, protection of informers, admissibility of information and statements given by an accused or any other person, or, any other matter whatsoever relating to evidence, for the purpose of any proceedings under these Regulations under any Orders”.
The Essential Rukun Tetangga Regulations are therefore of the same litter and parentage as the Essential (Security Cases) Regulations in anticipating the far sweeping changes without Parliamentary approval and are therefore illegal and unconstitutional.
The Rukun Tetangga Regulations also contain many provisions which are against the Rukun Tetangga principle of the Rule of Law.
Thus Clause33(2) of the Rukun Tetangga Regulations provides that every member of a family who is above the age of 14 years shall be guilty of an offence if a member of a family is charged with the commission of the offence, or the attempt of preparation for the commission of this offence.
The burden of proof is shifted from the prosecution to all the other members of the family, which is oppressive and runs against all the accepted precepts of justice.
The Essential Rukun Tetangga Regulations which are not passed by Parliament provides under Clauses 44 that “ if any person who commits an offence against these Regulations for which no other penalty is specified shall, on conviction, be liable to be punished with imprisonment to a term not exceeding 3 years and shall also be liable to be fined.”
This means that a Member of Parliament or State Assemblyman can lose his elected seat for allegedly commiting an offence under this Regulations, although this law was not passed by Parliament. This is clearly illegal and unconstitutional.
The DAP is therefore taking the Barisan Nasional Government to COURT to challenge the legality and constitutionality of the Essential Regulations, both the Rukun Tetangga and Security Cases Regulations, to defend and uphold one of the Rukun Negara principles that one of the pillars of Malaysian society is the Rule of Law.