I move that this House repeals the Essential (Security Cases) Regulations 1975 and the Essential ( Security Cases) (Amendment) Regulations 1975.
On Oct. 4, the Government gazetted the Essential (Security Cases) Regulations 1975 under Section 2 of the Emergency (Essential Power) Ordinance No.1 of 1969.
These Regulations immediately attracted national and international censure for their blatant disregard of human fights and the overturning of basic principles of law in stripping away all the essential safeguards for a fair trial in a new breed of cases classified as “security cases”.
Opposition parties, lawyers, students and all thinking Malaysians were horrified by the far-reaching implications and consequences of the Regulations. It was these Regulations which sparked off the widespread student demonstrations in New Zealand and Australia when the prime Minister, Tun Razak, visited these two countries in the second part of October.
If Malaysian university students at home had not been banned from taking part in public activities. I have no doubt that they would have risen up in even greater numbers and in larger scale than in December 1974 to protest against these Regulations.
The Bar Council held a special session during the Third Malaysia Law Conference on 13.10 and although no formal resolution was passed, it was clear that the lawyers overwhelmingly opposed the Regulations.
On 14th November 1975, the Government amended the Regulations in the form of the Essential (Security Cases)(Amendment) Regulations 1975, while in the intervening period there were more and more protests and expressions of concern. For instance, on the 13th of October 1975 the Bar Council held a special session during the Third Malaysia Law Conference and although no formal resolution was passed, it was clear that the lawyers overwhelmingly opposed the Regulation. Although the Straits Times in its editorial of 20th November said, with regard to the amended Regulations of the 4th of November, that the government “has heard the pleas of Malaysia’s legal community and made major changes in the Essential (Security Cases) Regulations 1975” , a careful study of the amended Regulations would show that the objections to the original Regulations of Oct. 4 equally applied to the amended Regulations of Nov. 4, which I shall show later in my speech.
There are multiple objections to the Security Cases Regulations and I shall deal with them one by one.
First Objection: A Blow to Rule of Law
The Government claims that it upholds the Rule of Law, and points to the Rukunegara where the Rule of Law is one of the five principles enunciated.
In his Hari Raya message on 5th October 1975, the Prime Minister, Tun Razak, explaining the need for the Security Cases Regulations, reiterated that his government upheld the Rule of Law.
However, the Bar Council Memorandum to all Members of Parliament dated 28th October explained that the Bar Council opposed the Regulations because the Regulations would “demoralise all who believe in the Rule of Law in this country by bringing the law itself into disrepute.”
It is clear that the principle of the Rule of Law means different things for those in power and for those outside power. In fact, I had had occasion in this House to stress that the Rule of Law can only be meaningful if it differentiates between good law and bad law.
What the Government means by Rule of Law in nothing more than ‘legality’. It is important that we should be able to differentiate between these two very different concepts, namely ‘legality’ and ‘Rule of Law’.
It is possible for every act of the Executive Government to be perfectly lawful, without the law itself being honoured or supreme. The Attorney-General, I am sure, is aware of the Roman law maxim to the effect that “the Emperor’s wish has the force of law”. It has been pointed out by an eminent judge that if the maxim is part of the Constitution of the country and if the Emperor chooses to give his servants unfettered powers to do as they please, their actions, no matter how oppressive of capricious, will be perfectly legal. But in that country, there will not be a true Rule of Law!
We therefore repudiate the definition of Rule of Law which equates it with ‘legality’, which is to reduce the principle of Rule of Law to utter meaninglessness, for in that sense, every legal system, even the organised mass murders of the Nazi regime, qualify as law.
The Government’s definition of Rule of Law is a very primitive one, as seen by the Commentary in the Rukunegara Principles issued in 1970 which states: “The Rule of Law is ensured by the existence of an independent Judiciary with powers to pronounce on the constitutionality and legality or otherwise of Executive acts.”
What is the use of an independent judiciary when the laws allow arbitrary interference with the fundamental rights and liberties of the individual?
The Principle of the Rule of Law is a very big subject and conferences after conferences have been devoted to it alone, although our Government thinks it is something to be explained and disposed of in two or three paragraphs. I shall, however, only confine myself to the aspect directly involving the Security Cases Regulations.
The Security Cases Regulations is a blow to the Rule of Law because it strips away all the essential safeguards for a fair trial. The principle that a man is innocents until proved guilty is abandoned.
One of the most fundamental safeguards for a fair trail is the presumption that a man is presumed innocent until proved guilty. These new Regulations effectively remove this safeguard.
The Secretary of the Bar Council, Mr. P. Cumaraswamy, in a paper entitled “Essential (Security Cases) Regulations 1975- Is the Rule of Law in Jeopardy?” at the Third Malaysia Law Conference, has rightly pointed out that if conviction in some cases cannot be obtained by the Public Prosecutor, who is fully supported by the whole investigation machinery of Government, then the chances of an individual proving his innocence – without the support of a competent investigative machinery, but entirely on his own resources – are almost non-existent.
Even when the prosecution evidence is not sufficient to hang a cat, Mr. Cumaraswamy had pointed out, the presiding judge has no power or discretion – however much he doubt the guilt of the accused or believes in his innocence – to discharge the unfortunate accused. The judge has no option but to call the defence. In every foreseeable case, the innocents, merely by being charged on the most tenuous of grounds, has to discharge the same burden as a guilty person of disproving all suspicion of guilt.
The question Mr Cumaraswamy asked is also the question which we should ask ourselves: “Which reasonable person can remember what he did and where he was the previous Monday or Friday? Yet, he is required to discharge this impossible burden. Should he say he cannot honestly remember, he would be held unwilling to answer and a finding of guilt is inevitable.”
The amendments of Nov. 4 did not restore this fundamental legal principle that a man is presumed innocent until proved guilty.
This is only the most notable of the many basic rules of evidence, designed to ensure that only the guilty are punished, which have been discarded, and thus reduce the trials of persons for committing security offences to a mere show of legal respectability without giving the accused a genuine opportunity to defend himself.
Other basic rules of evidence which have been overturned to the detriment of the liberty of the subject include the following:
1. Hooded Witnesses
Under Clause 21 of the original October 4 Regulations, the prosecution witnesses has the right to give evidence in camera and in the absence of the accused and even his counsel. The Regulations also provide for the prosecution witness to wear such dress and give the evidence in such manner of circumstances, or by such methods, as will not lead to his identification, and under no circumstances, shall he be asked as to his name, address, age, occupation, race or other particulars which will lead to his identification. This makes it impossible for the defence to impeach the credit of the prosecution witness and is most repugnant to all norms of justice and fair play.
Although the November 4 Regulations Amendments toned down this provision, the Regulations still allow hooded witnesses to take the witness box without being seen of heard by the accused and his counsel.
Thus, Regulation 19 of the amended Regulations provide:
“19. (1) Where at any time during the trial, the court is satisfied that any of the witnesses for the prosecution is afraid to have identity disclosed and therefore wishes to give evidence in such a manner that he could not be seen or heard by both the accused and his counsel, the procedure contained in paragraphs (3) and (4) shall apply.
“(2) For the purpose of satisfying itself as to the need to follow this procedure of recording evidence under this regulation, the Court shall hold an inquiry in camera by asking the witness concerned or any other witness in the absence of the accused and his counsel.
“(3)If after such inquiry, the court is satisfied as aforesaid, the evidence of such witness as aforesaid shall be given in camera and in addition thereto, he shall give evidence in such manner as he shall not be visible to the accused or his counsel, but shall be visible to the court; and further if the witness fears that his voice may be recognised, his evidence may be given through an interpreter or other officer of the court who shall relay to the witness such questions as may be put to him in examination-in-chief, cross-examination and re-examination and in turn shall relay back to the court the answers given by the witness to such questions.
“(4)The court may disallow such questions to be put to the witness as to his name, address, age, occupation, race or other particulars of such other questions as in the opinion of the court will lead to the witness identification.”
Thus, under the amended November 4 Regulations, the defence would have no way to impeach such prosecution witnesses and challenge their falsity.
It will be a field day for agent provocateurs and informants who, for reward, would have no fear or scruples to manufacture false evidence as they could not be found out or charge for perjury, and open the doors wide for blackmail by unscrupulous and unprincipled agent provocateurs and government informers and to blackmail law-abiding, innocent citizens.
Regulation 24 of the November 4 Regulations give even more scope for such blackmail and perjury, for it provides:
“24. (1) Any person may give information relating to a security offence to a police officer or other public officer and the identity of the informant giving such information shall at his request be kept secret.
“(2) A report setting out the said information shall be admissible in evidence without the informant being required to give evidence, and the court shall give due weight and consideration to such information.”
Only yesterday, I met a Malaysian citizen who said that nowadays, he makes a point of winding up and locking his car wherever he goes, for who knows, some police officer of informant who does not like him can plant some bullets or incriminating documents in his car and get him charged for a security offence.
Again, as has seen pointed out, when there is a bomb explosion, and everyone runs in all different directions, who can prove that he was not involved in the bombing act? It would be open for any informant to or agent provocateur to give a statement under Regulation 24 or even to give evidence under Regulation 19 that he saw so-and-so in the company of persons who were responsible for throwing bombs. I don not thin it is possible for anyone to prove that he is innocent under such circumstance, that he definitely had no association with the bomb-throwers, for the bomb-throwers are the only competent witnesses to exonerate him in such circumstances.
In these circumstances, with such information under Clause 24 or tainted testimony under Clause 19, I dare say that even the Attorney-general himself, should he be around the vicinity of the bomb incident at that time, would not be able to prove his innocence against such false evidence.
2. Changes in the rules of evidence in allowing statements “made to or in the hearing of a police officer”, admissions and confessions, cautioned or uncautioned statements, statements to a spouse during marriage, incriminating statements, evidence of an accomplice of that of a person of tender age will now be admissible, together with hearsay evidence, which will be at the discretion of the Court. The reasons for these rules of evidence had been to prevent tainted testimony and wrongful convictions from being given. Now the safeguards are removed.
3. Abolition of trial by jury or with the aid of assessors. Even during the Emergency in colonial times, trials under the Emergency then prevailing were with the aid of assessors.
4. Limited right of appeal. Even before the introduction of the Court of Judicature (Amendment)( No.2) Bill which were debated in this House two days ago abolishing appeal to Privy Council in Constitutional and criminal cases, appeal with regards to security cases to the Privy Council had been removed.
I concede that the November 4 Amended Regulations had repealed the drastic and draconian appeal provisions of the October 4 Regulations, which did not even give the right of appeal for review, either for mistake in law, or mistake of fact or miscarriage of justice, for those jailed for less than three months.
But Regulation 30(3) of the original October 4 Regulations provides that while a person who has been jailed for less than three months cannot appeal against it and have it set aside or reduced, the Public Prosecutor can appeal against the very same sentence on the ground that the sentence is too light, and ask for heavier penalties. Although this provision has been repealed, it throws a sharp insight into the minds and outlook of persons who are in charge of making laws in this country, for this provision could only be conceived by persons to whom all ideas of justice and fair play are strangers.
In substance, the amended November 4 Regulations do not depart materially from the October 4 Regulations. Under the amendments, the Courts are no more bound, I agree, to impose the maximum penalty in every case; the power to detain an accused person for a full 60 days without producing him in court repealed; removal of the power to confiscate the property of any person wanted in connection with investigations of a security offence; the granting of a right to grant bail except for offences carrying the death penalty of life imprisonment.
Persons acquitted in first instance still deemed guilty
These amendments of the November 4 to the October 4 Regulations, however, leave the drastic and draconian features substantially intact, and constitute a grave blow to the Rule of Law in removing important and fundamental safeguards to protect the life and liberty of the subject. This is highlighted by Regulation 27 of the November 4 Regulation, which provides:
“27. When an appeal is presented against an acquittal, the court whose decision is presented may issue a warrant directing that the accused be arrested and brought before it, and may commit him to prison pending the disposal of the appeal, or admit him to bail.”
Here, not only is a person deemed guilty until and unless he can prove his innocence, but having proved his innocence in securing an acquittal, he is still deemed guilty and can be put in prison until he wins again in an appeal by the Public Prosecutor against his acquittal.
An acquittal under the Regulations, therefore, is no acquittal, and no proof of innocence, but re-committal and re-imprisonment.
If this unfortunate person comes under Regulation 26(1), where the Court of first instance is the Sessions Curt, he may be acquitted and re-imprisoned not once, but twice, as appeals against his acquittal can go to the High Court with a further right of appeal to the Federal Court.
This shows the complete abandonment of the Rule of Law with the introduction of these Regulations.
Second Objection: A Blow to Human Rights
The second objection to the Security Cases Regulations is that it is a big blow to human rights advancement in Malaysia. These Regulations is a direct violation of the Universal Declaration of Human Right, 1948. Article 11 of the Universal Declaration of Human Rights stress:
Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in public trial at which he has had all guarantee necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Thus, the Essential (Security Cases) Regulation violate both Clauses of Article 11 of the Universal Declaration of Human Rights, in presuming guilt until proof of innocence, and in providing for retrospective effect in Regulation 3(2) of the Amended Regulations.
In fact, the Regulations also violate Article 3 of Declaration, which reads: “Everyone has the right to life, liberty and security of person.”
The Universal Declaration of Human Rights is a common standard of achievement which we, as a member nation of the United Nations, has pledged to strive to promote, respect and to secure their universal and effective recognition and observance. Malaysia has already fallen short of many rights and freedom enunciated in the Universal Declaration of Human Rights, like Article 9 – “No one shall be subjected to arbitrary arrest, detention or exile”; Article 13 – “Everyone has the right to freedom of movement and residence within the borders of each state”; Article 20 – “Everyone has the right to freedom of peaceful assembly and association.”
These Regulations will make Malaysia violate three other rights in the Universal Declaration of Human Right, and put Malaysia further and further away from the accepted standards of civilized nations.
Let it not be said that human rights are luxuries which we in Malaysia with democracy ala Kuala Lumpur cannot afford. For those so-minded, I will like to remind him of the Preamble to the Universal Declaration of Human Rights which set out the Human Rights as a common standard of achievement for all peoples and all nations because:
1. Disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind; and
2. It is essential, if man is not be to be compelled to have recourse, as last resort to rebellion against tyranny and oppression, that human rights should be protected by rule of law.
Third Objection: Constitutional Violations
The third objection to the Security Cases Regulations is that they violate may fundamental liberties and rights enshrined in the Constitution.
Article 4 of the October 4 Regulations provides for the arrest of a person suspected of committing a security offence by the police without a warrant and without being produced before a Magistrates or court for as long as 60 days. This is in direct violation of Clause 5(4) of the Malaysian Constitution which reads:
“Where a person is arrested and not released he shall without unreasonable delay, and in any case within 24 hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority.”
Although this provision has been withdrawn in the November 4 Amended Regulations, it is not on the ground that it is unconstitutional, for the Attorney-General , Tan Sri Kadir, had argued that although the regulations were against certain provisions of the Constitution, the Emergency Ordinance provided that such regulations could be made. It is for this reason that the Amended November 4 Regulations, Regulation 29(1) and (2) altered the Constitutional provisions in Article 42(1） and (2) whereby the power to grant pardons, reprieves and respites, or to remit, suspend or commute sentences of all security cases, are now exercisable by the Yang di-Pertuan Agong rather than the respective Sultans and Governors as provided in the Constitution.
I am aware that Clause (6) of Article 150 of the Constitution provides that any Emergency ordinance is valid even if inconsistent with any provisions of the Constitution, with certain exceptions, but I shall submit later that despite this provision, the Regulations are a violation of the Malaysian Constitution, both in the spirit and in the letter.
Fourth Objection: Regulations will permit gross abuse and misuse of power
I have mentioned earlier how Regulation 19, in permitting hooded or hidden witnesses, and Regulation 24, in permitting police informer’s information to be admissible without requiring the informer to be called as a witness, will open the floodgates for perjury and blackmail.
Whenever vast discretionary powers are given, and there are not proper checks and safeguards, they are very susceptible to gross abuse and misuse.
Regulation 2 of the Amended Regulations defines a “security offence” as an offence against Section 57, 58, 59, 60, 61, or 62 of the Internal Security Act, 1960, or “any offence against any other written law the commission of which is certified by the Attorney-General to affect the security to the Federation.”
This means that the Attorney-General can by certificate classify an offence as a security case, and remove all the legal protection which a subject is legally entitled to.
I am not being personal, but I stress that it is wrong in principle and in practice to vest powers in any single person, and it would be a miracle that such vast powers would not be misused, even if it should be merely because of the inability of the Attorney-General to find sufficient time to go into every such case in sufficient detail which had been submitted to him for such certification.
Another Regulation which will open wide the doors for abuse and misuse of power and corruption is Regulation 23, which reads:
“23 (1) The Public Prosecutor may, if considers that any articles or message sent through the post or telecommunication are likely to contain any information relating to a security offence, authorise any police officer either orally or in writing-
(a) To intercept, detain and open any postal article in course of transmission by post;
(b) To intercept any message transmitted or received by any telecommunications;
(c) To intercept or listen to any conversation by telephone.
(2) In a trial of a security case any information by a police officer in pursuance of paragraph (1), whether before or after the commencement of the trial, shall be admissible in evidence without the originator of the information being required to give evidence.”
And there is no check, because every time we try to ask questions about phone-tapping the Minister will hide behind “national security”, as he did during question time today.
This Regulation gives legality to the most obnoxious activities in modern society, like phone-tapping and mail interception, which will not only end privacy and personal confidentiality, but give instruments to many to intimidate and blackmail individuals from the information that they would come into possession from such mail and telecommunication interference. We know that phone-tapping and mail interception has been going on for considerable time, but this time, the government is publicly admitting it and wanting to use such interceptions as evidence in security cases.
These infamous provisions would lead to gross abuse, as shown by the Great Watergate Scandal in America, where such powers were used for petty, personal, partisan and political purpose completely unrelated to question of national security.
On 8th October, the Attorney General when referring to fears expressed by opposition leaders, lawyers and other concerned Malaysians that the new regulations might be open to abuse, said that “in spite of the best laws and regulations and the best administrative system, there may be still ways open to abuse if those in a position to do so have the intention or have no scruples.” He said that the crux of the matter was really a question of faith, trust and obligation. He claimed that he Government had these qualities and this had been proved time and again.
I reject this contention, for this argument would logically spell the end of the Rule of Law. What Malaysia needs to establish as a national tradition and institution is that ours is a government of laws and not a government of men, for in the latter case, the opportunities for abuse and corruption are infinite.
Laws of a country must not depend on the supposition of fair and just government leaders. Even, more important, it must be based on fair and just laws, administered by fair and just men. Without fair and just laws, there is no more rule of law, but rule of the men in power according to their different whims and fancies in different occasions and at different times.
Although Tan Sri Kadir has assured that he would personally scrutinise every case against any person before he or she is charged under the regulations, the people cannot be assured that so long as such vast, unchecked powers are exercisable by one man, there cannot be human failings.
In fact, in my six years as a Member of Parliament, one thing which strikes me most is that although Ministers are theoretically the head of their Ministries, I find that in most cases, Ministers are run by their Ministries and bureaucratic machinery, rather than the other way round, where the Minister run their Ministries.
I have also seen enough instances of gross abuse of power by the Government to be able to take comfort such assurances.
The gross abuse and misuse of power in Sabah, its excesses, corruption, for instance, has become public knowledge – all because the Sabah State Government was allowed to degenerate into a government of men rather than a government of laws. I can still remember that during the Elopura State by-election in Sabah on August 4, 1973, the now-dissolved United Sabah Action Party (USAP) candidate, Dr. Yap Pak Chau, and his members and supporters were physically prevented from leaving their party premises by the police from going to the Nomination centre to file their nomination papers on the ground that subversive documents and a pistol was found on the premises, which were in fact planted there.
Another example of gross abuse of power is the case of lorry-driver, Chan Hoa of Tangkak, who was taken to the Tangkak Police Station on 28.4 midnight. This is an extract from a police report that he lodged on 12.5 in Malacca:
“Bila sampai di-Polis Tangkak dia (tiga orang yang kenalkan dirinya sebagai mata gelap) soal saya tanya awak ada ambil barang orang, dan saya jawab tiada apa-apa yang saya ambil, dan ta’tahu, kemudian saya telah di-pukul dengan tangan oleh dua orang yang tangkap saya itu oleh laki-laki India dan laki-laki Cina pada badan saya dan dada dan kedua belah mata, dan sampai keluar darah dari mulut, mata saya bengkak dan merah saya dipukul dengan tangan, dan pijak-pijak sama kaki sampai saya pengsan, bila saya sedar ia telah masukan saya dalam lock-up.”
Chan Hao was released on 6.5 and was treated in Malacca Hospital for serious bodily injuries and eye injuries. After he had lodged a police report in the Malacca Hospital about the police brutalities, he was asked to go to the Muar Police Station for an identification parade to pick up the two policemen who physically assaulted him. Meanwhile, approaches were made to Chan Hoa’s family to settle the matter with the threat that otherwise, Chan Hoa would never be able to live in Tangkak again.
These approaches were spurned by Chan Hoa, Chan Hoa did not go to Muar Police Station for identification parade until August 11, partly because he had not recovered from the injuries and partly because he was afraid to go to the Muar Police Station after his experience at the Tangkak Police Station.
It was I who advised him to go to the Muar Police Station to identify the persons who assaulted him, as otherwise, the matter would be dropped by the police. This he did on 11.8. on 17.8, he was arrested and charged for assisting in disposing stolen property.
The conclusion is clear, that if Chan Hoa had not pursued his police report, and did not go to the Muar Polic Station to identify the two persons who assaulted him, the charge would not be made.
Is this type of justice and fair play which the Government expect the people to have confidence and trust? Up to now, no police action has been taken with regard to Chan Hoa’s report about brutality against the two persons. Chan Hoa’s lawyers had written to Muar to ask for the names of the two persons so that civil action could be taken, but there has been no reply from Muar Police although it is now over five months.
Finally, I want to mention the case of the detention of Dato James Wong as a last example of the constant abuse of power by the government authorities.
I had said in this House on December 9 that Dato James Wong was detained under the Internal Security Act on the ground that he had met the Seri Begawan of Brunei on a day in May 1974, at 10 p.m., and accepted $4 million in return for agreeing to secede Limbang to Brunei. I had also mentioned that on 6th May 1975, Dato James Wong had sworn an affidavit saying that
(i) He did not receive a single cent from the Seri Begawan, Brunei;
(ii) That he did not know the Seri Begawan of Brunei personally as his last meeting with him was in or about 1965 when he was the Deputy Chief Minister of Sarawak and had accompanied the present Honourable Prime Minister, Tun Razak, on an official visit to the Sultanate of Brunei;
(iii) That he had not met the Seri Begawan since 1965 and had never corresponded with him; and
(iv) That he was never in Brunei in any day at 10 p.m. in May 1974.
What has Datuk Abdul Samad Idris, the Assistant Minister of Home Affairs, the man who signed Datuk James Wong’s detention order, had to say?
This is what he said: “Saya tidak ingin hendak mengulas satu persatu daripada apa yang diucapkannya tetapi hanya dua perkara yang saya petik bahawa Datuk James Wong menafikan dia tidak menerima satu sen pun daripada Seri Begawan. Mungkin akuan ini benar. Akan tetapi siapa taku kalau dia menerima daripada ejen-ejen yang lain dan tidak menerima daripada Seri Begawan mungkin betul tetapi tidak dapat kita menafikan dan tidak siapa yang tahu dia telah menerima daripada ejen yang lain.”
The question I want to ask is, can the Government deprive a person of his liberty and freedom and detain him indefinitely on the ground that “nobody knows whether he has received money from the Agent”. The Government does not know, nobody knows. On these grounds can the government detain a person and deprive him of his rights and liberties? Datuk James Wong here is deemed guilty until and unless he could prove himself innocent of a charge which the Government cannot proffer with any particularity! From a charge which the Government itself cannot detail!
I hope the Attorney-General and the Minister of Home Affairs can understand now why I, and large numbers of Malaysians, cannot feel comfortable or happy about assurances that vast powers cannot and would not be abused, when in the past and present, the had been abused galore.
Fifth Objection: Regulations undermine Parliamentary Democracy
The fifth objection to the Security Cases Regulations is that they undermine and erode public confidence in the Parliamentary democracy, and mark another step towards a police state.
It was highly improper for the Essential (Security Cases) Regulations which altered so drastically the legal and constitutional rights of Malaysians, to be made by virtue of Section 2 of the Emergency (Essential Powers) Ordinance No.1 of 1969, when firstly, the 1969 Emergency covered different circumstances from those facing the country today, and secondly when Parliament had already been summoned to meet.
In fact, the impropriety is so manifest that it tantamount to an usurpation of Parliamentary powers and functions by the Executive.
Under Article 150 of the Constitution, the Yang di-Pertuan Agong, acting on Cabinet advice, is empowered to issue a proclamation of emergency if he is satisfied that a grave emergency exists whereby the security or economic life of the Federation or any part thereof is threatened.
If a proclamation of emergency is issued when Parliament is not sitting, the Yang di-Pertuan Agong must summon Parliament as soon as may be practicable. Until both Houses of Parliament are sitting, he may promulgate Ordinances having the force of law. Clause (6) of this Article provides that any ordinance made by the Yang di-Pertuan Agong, and any Act of Parliament passed while a proclamation of emergency is in force, is valid, with several exceptions, even if inconsistent with any provisions of the Constitution.
I submit that it is contrary both to the letter and spirit of the Constitution for the Government to continue to make laws by Emergency power, in this case make Regulations by virtue of the 1969 Emergency (Essential Powers) Ordinance when both Houses of Parliament are scheduled to sit.
It is not only unconstitutional in this sense, but marks another significant step towards taking Malaysia in the direction of a authoritarian police state.
It has been said that those who do not remember the mistakes of the past are condemned to relive it, and it behooves us not to make the mistakes and experience the suffering other people in other times and other places had undergone.
The common means for introducing authoritarian system of government is by the use of reserve constitutional powers and the introduction of a permanent state of emergency.
The permanent state of emergency provides a legal basis for any subsequent institutional or judicial changes. It introduces parallel systems of government, where on the one hand, it was used to create new institutions and to introduce new legal principles which draw their sole authority from the State of Emergency. On the other hand, it allowed the normal state machinery of government to co-exist where it could serve a useful purpose. The judiciary are neutralised and are required to apply draconian laws, which are unexceptionable in their origins and clearly enforceable in constitutional terms. The end was an authoritarian police state.
In Malaysia, we have since 1963 lived in a permanent state of emergency, and there are parallel systems of government where Ordinances and Regulations introduce new legal principles which draw their sole authority from the State of Emergency, most notably the Essential (Security Cases) Regulations and the Essential (Community Self-Reliance) Regulations.
For example, the Essential (Community Self-Reliance) Regulations or Rukun Tetangga Regulations which were not passed by Parliament has introduced the questionable principle of group liability in criminal law, or punishing a man by inflicting penalties on members of his family.
Clause 33(2) of the Rukun Tetangga Regulations provides that:
“Where a family resides together in the same premises and there is proved against any member thereof a charge for any offence of the commission of which or of the attempt or preparation for the commission of which the other numbers of the family so residing would, in the ordinary course of events, have had knowledge, each of the other members of the family who is above the age of 14 years shall be deemed to be guilty og an offence.”
Here, we should also note Clause 5(2) of the Regulations which provide 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 or 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 or under any Order.”
This means that an Order made under these Rukun Tetangga Regulations can be even more draconian and oppressive than the Security Cases Regulations, and the judiciary must still apply them because it is law.
In fact, we in Malaysia had lived in a double state of permanent emergency, as both the Emergency Proclamations of 1963 and 1969 are still operative.
Let us retrace our steps and not take the path others have trodden towards an authoritarian police state. If we are to uphold democratic forms of government, there must be restrictions on the assumption and exercise of emergency powers. There should be a system of judicial control over the assumption and exercise of emergency powers by the Executive with a view to:
(a) Determine whether the circumstances have arisen and the conditions have been fulfilled under which the powers may be exercised.
(b) Limiting the extent to which such emergency powers may be exercised in derogation of the fundamental rights of the individual; and
(c) Giving the courts a supervisory jurisdiction to ensure that emergency powers are used only for the specific purpose for which they were granted, and that they are not exceeded.
We should return to our Merdeka Constitution of 195 which provided that a proclamation of emergency automatically ceased to be in force at the end of two months after its issue, and an Ordinance promulgated by the Yang di-Pertuan Agong at the end of 15 days from the date on which both Houses are sitting, unless before that period it has been approved by resolution of each House, if we are not to have parallel systems of Government amd go the way of an authoritarian police state.
The Merdeka Constitutional provision about the lapsing of Proclamations of Emergency unless positively confirmed by Parliament reinforces my earlier argument that when Parliament is sitting, no Ordinance or Regulation should be made, for their exercise detract from the credibility and meaning of Parliamentary democracy.
Sixth Objection: Regulations a set-back in the battle to win the hearts and minds of the people
Because of the foregoing reasons, the Essential (Security Cases)Regulations is a set-back in the battle to win the hearts and minds of the people.
When introducing the Essential (Security Cases) Regulations on October 2, the Attorney-General Tan Sri Kadir said that the government is justified in introducing these Regulations to gain the people’s confidence in view of the serious situation. By introducing these regulations of such far-reaching consequences which diminishes the basic rights of Malaysians, the effect is only to undermine the people’s confidence in the Government.
Let me remind the Government that the security problem faced by the government is basically a fight for the hearts and minds of the people, and it is essential that in every measure conceived and decided by the government, it should be able to communicate to the people that it is to preserve democratic rights and freedoms. Is the government aware that the Essential Regulations, both of the 4th October and 4th November, are seen by many Malaysians as a diminution of the democratic rights of Malaysians, and therefore unacceptable?
Thus, when the government talks of the need to drastically change the law, as discarding the legal principle that a man is innocent until proven guilty, to meet the communist threat, the people do not see an equal determination to fight the corrupt in high public places by also putting them in the same position of having to establish their innocence. Yet the public hears constantly Ministers saying that corruption is as dangerous as communism.
The Security Cases Regulations cannot deter the committed communist guerrillas in towns and jungles for they take the risk into calculation. The killing of the Perak Chief Police Officer and a Malacca Special Branch Officer after the gazette of the Regulations should back this point.
The Regulations, however, can implicate a lot of innocent people and bring trouble to many because of the boundless opportunities for misuse and abuse of power under the Regulations. The Regulations is only the latest in a series of panic measures taken by the Government in the face of a new situation in Malaysia and South East Asia after the communist victories in Indo-China. In April this year, I had pointed out in this Chamber that the government should not resort to panic measures as at that time it was introducing the Universities and Colleges Amendment Act to ban university students from any form of public activity.
Security cannot be legislated into being
The Government should learn from the lessons of Vietnam. Security cannot be legislated into being. Security and stability can only be achieved by winning the hearts and minds of the people through change of government policies which can gain popular support of the people. This is the only way to win the urban and jungle guerrilla warfare.
History may well show that these regulations, far from improving the situation, has been counterproductive and aggravated the security situation, because it started a new phase where there is greater unchecked abuse of power, denial of freedom and basic rights of Malaysians, rule of terror, widespread blackmail and victimisation of the innocent, rampant corruption – in other words, the further alienation of more and more Malaysians by the Kangaroo court system.
I move to repeal the Essential (Security Cases) Regulations, 1975 and the Essential (Security Cases) (Amendments) Regulations 1975 to seek to regain sanity for the course, the direction that the country is taking.
Speech by Ketua Pembangkang and DAP Member of Parliament for Kota Melaka, Lim Kit Siang, in the Dewan Rakyat on Friday, 19th December 1975 on his motion to repeal the Essential (Security Cases) Regulations 1975