Repeal of the 1975 Essential (Security Cases) Regulations a must to restore the self-respect of the legal community and redeem the international reputation of Malaysia as a civilized nation
I rise to move the following motion:
“That this House, TAKING NOTE of the national and international revulsion at the recent case of the mandatory death sentence passed on a 14-year-old Penang Form One boy for unlawful possession of a pistol and ammunition under the Essential (Security Cases) Amendment Regulations 1975 and the Internal Security Act, RESOLVES that the Government should immediately repeal the Essential (Security Cases) Regulations 1975 and the Amendment Regulations 1975 and that the Government should consult Opposition Parties and the Bar Council in the country should the Government consider that new Regulations should be enacted in their place.”
When the Essential (Security Cases) Regulations was first announced and enacted in October 1975, public opinion, especially the Bar Council, and opposition parties, especially the DAP in Parliament, opposed the Regulations as being draconian and a most unjust and unconscionable piece of delegated legislation.
As I said in the Dewan Rakyat on 19th December 1975, the Security Cases Regulations are obnoxious because:
1. It is a blow to the Rule of Law, in over-turning fundamental safeguards for a fair trial, as for instance, in rejecting the principle that “a man is innocent until proved guilty”; provision for ‘hooded witnesses”; the admissibility of tainted testimony like statements “made to or in the hearing of a police officer”, cautioned or uncautioned statements, incriminating statements, evidence of an accomplice or that of a person of tender age; the abolition of trial by jury or with the aid of assessors, limited rights of appeal in security cases. And last but not least of the assaults on safeguards for a fair trial, Regulation 27 of the Security Cases (Amendment) Regulations which provides not only that a person is deemed guilty until and unless he can prove his innocence, but that having proved his innocence in securing an acquittal, he is still deemed guilty should the Public Prosecutor appeal against his acquittal, in which case the acquitted person can be committed to prison to await the outcome of the Public Prosecutor’s appeal against his acquittal. Under these circumstances, a person charged under the Security Cases Regulations is as good as convicted once he is charged in court, for all the rules of evidence, procedure and trial have been changed to secure his conviction regardless of his guilt or innocence.
2. A Violation to Human Rights, which includes the right of every person to be presumed innocent until proved guilty according to law in public trial at which he has all guarantees necessary for his defence. A further violation is the principle that no person below the age 18 should have a death sentence passed on him, which I deal with later.
3. Violation of the Constitution of Malaysia which lays down fundamental rights and liberties.
4. Regulations will permit gross abuse and misuse of power.
5. The Regulations will undermine Parliamentary Democracy in Malaysia where such far-reaching changes of basic principles and laws are made by emergency powers when Parliament exists.
6. The Regulations will be a set-back in the battle to win the hearts and minds of the people.
When speaking on the likely abuse and misuse of the powers vested by the Security Cases Regulations, I said in Parliament that it was wrong in principle and in practice to vest such vast powers in any single person, and it would be a miracle that such vast powers would not be misused, even if it should merely because of the inability of the Attorney-General to find sufficient time to go into every case in sufficient detail which had been submitted to him for such certification” that it should be a security case.
Minister of Law and Attorney-General, Tan Sri Kadir Yusoff, told the Dewan Rakyat on Dec. 19, 1975 that he would take great care before prosecuting a person under the security regulations. On Oct. 9, 1975, placed on box on the front page of Straits Times, Tan Sri Kadir pledged to the people of Malaysia: “I will personally scrutinize every case before any person is charged under these regulations.”
The recent case of the mandatory sentence passed on the 14-year-old Penang Form One school boy, resulting in national and international revulsion, has highlighted again the hollowness of Ministerial pledges and promises, and shown how vast powers can be abuse and misused.
When Tan Sri Kadir returned from an international law conference, where I understand he was badgered and harassed by international law delegates about the barbarity of Malaysian laws which hang 14-year-old children, the Attorney-General said on setting foot at Subang Airport that the case of the 14-year-old boy was never referred to him, and that a suitable sentence for the boy would be a few years’ in Henry Gurney School.
Was the Attorney-General make a pledge to Parliament and to the people that he would personally scrutinise every case before charged under the Security Cases merely a ploy to deceive Parliamentarians and public opinion who feel strongly about the wickedness of the Security Cases Regulations? If this is the case, then the Attorney-General should be censured.
Or did the Attorney-General tell the truth, that the case was never referred to him? In that case, the Parliament is entitled to know how such a colossal blunder could take place, and we want a full report as to which legal officer in his Chamber has usurped his powers in sending a person to trial under the Security cases Regulations without his personal approval? Further, the boy was charged in March in a blaze o national and international publicity. How can the Attorney-General, even if he had not been asked about the case, been unaware that a 14-year-old boy had been charged under the Security Cases Regulations unless the Attorney-General does not read newspaper or listen to radio or watch television.
There was a lot of time between March and August 1977 for the Attorney-General to intervene and have the boy charged under the Arms Act instead of the ISA. Why was this not done?
In this Dewan in 1975, the Attorney-General appealed to the people to have trust in the Government and Ministers. This is not the point. The pertinent issue is whether we are to have a Government for Laws or a Government of Men. We cannot permit a situation where we say that a piece of legislation is good if the country is run by good men and will be very bad law of run by bad men – for it is not necessary for bad men to make such laws oppressive and repressive; all it is necessary for bad men to make such laws oppressive and repressive; all it is needed are men in power, good and well-intentioned, but who have become hardened and insensitive to basic civilized values and human decencies. like the prosecution of the 14-year-old boy under the ISA carrying the mandatory death sentence for unlawful possession of a pistol and ammunition. In this connection, where is the justice and equality before the law when a VIP, former Deputy Minister to the Prime Minister, is charged and fined $1,500 for similar offence of unlawful possession of firearm and ammunition, while a 14-year-old boy is mandatorily sentenced to death?
The Essential (Security Cases) Regulations 1975 is a subversive law, for it subverts the faith of Malaysians in the Rule of Law, our belief in a just and humane society, our hope that men and women could live in a country where fundamental liberties as spelt out in our Constitution are honoured and upheld.
In fact the Essential (Security Cases) Regulations has so subverted the faith of Malaysians lawyers, for the first time in history, has risen to rebel against such obnoxious, unjust and unconscionable laws. Last week, at an extraordinary general meeting of the Bar Council of Malaya, the Malaysian lawyers voted unanimously to advise lawyers not to handle security cases. Malaysian lawyers have proved that they have a conscience and a sense to a higher call of duty, for which Malaysians can be proud.
The Essential (Security Cases) Regulations must be repealed, to restore the self-respect of the legal community and to redeem the international reputation of Malaysia as a civilized and humane nation; and most important of all, to stop the Regulations subverting the respect for law and the Rule of Law in Malaysia.
I am glad that the 14-year-old boy has been pardoned and sent to the Henry Gurney’s School until 21 years and thereafter at the Yang di-Pertuan Agong’s pleasure. I would have been happier if the boy had been sent to Henry Gurney’s Boy Home for three or four years, and thereafter, given an opportunity to return to family and society to start a new life.
The pardoning of the boy, however, does not weaken the case of the repeal of the Essential (Security Cases) Regulations. By allowing these Regulations to remain, public confidence in the processes of law would be irreparably undermined, which would be counter-productive to the object of maintaining law and order and to fight subversion. It will bring the legal system into utter disrepute.
The Security Cases Regulations stand of legalised lawlessness. It is the very negation of the Rule of Law. The Regulations must be repealed, and if the Government thinks that new Regulations are needed, it should consult Opposition Parties and Bar Council before introducing them.
Speech by Parliamentary Opposition Leader, Member of Parliament for Kota Melaka and DAP Secretary-General, Lim Kit Siang, when moving a motion in Parliament on Oct. 24 1977 to repeal the Essential (Security Cases) Amendment Regulations 1975