Repeal of the 1975 Essential (Security Cases) Regulation essential to uphold Rule of Law

Speech by Parliamentary Opposition Leader and DAP Secretary-General, Lim Kit Siang, when moving a motion in Parliament on Oct. 27, 1977 to repeal the Essential (Security Cases) Amendment Regulations 1975

Repeal of the 1975 Essential (Security Cases) Regulation essential to uphold Rule of Law, restore self-respect of legal community, protect the reputation of Malaysian judges from being regarded as ‘handing judges’ and to redeem the international image 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 Regulation 1975 and the Internal Security Act, RESOLVES that the Government should immediately repeal the Essential (Security Cases) Regulation 1975 and Amendment Regulation 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) Regulation 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 witness’; 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 the 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 of 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 had all guarantees necessary for his defence. A further violation is the principle that no person below the age of 18 should have a death sentence passed on him.

3. Violation of the Constitution of Malaysia which lays down fundamental rights and liberties.

4. Regulations will permit abuse and misuse of power.

5. 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 cause a setback 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 on 19th December 1975 in my motion to repeal the Security Cases Regulations 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.

The Minister of Law and Attorney-General, Tan Sri Kadir Yusoff, told the Dewan Rakyat in reply to my motion of Dec. 19, 1975 that he would take great care before prosecuting a person under the security regulations. On Oct. 9, 1975, he gave the people and country a clear-out pledge which was carried in a front-page box story in New Straits Times on Oct. 9, 1975: “I will personally scrutinise every case before any person is charged under these regulations.”

Hollowness of Ministerial pledges

The recent case of the mandatory death 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 discretionary powers can be abuse or misused.

When Tan Sri Kadir returned from the Winnipeng Commonwealth Law Ministers Conference, where I understand he was badgered and harassed by questioners about the barbarity of Malaysian laws which hang 14 year old children, the Attorney-General said on arrival at Subang International 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 year’s in Henry Gurney School.

What about the Attorney-General’s solemn pledge to the people and country that he would “personally scrutinize every case before any person is charged under these regulations.”

A.G. broken his pledge to nation and people on Security cases

The boy was charged in March on a blaze of national and international publicity, and the case was not heard until August 1977. How can the Attorney-General, even if he had not been asked about the case, been unware of the charging of the 14-year-old boy under the Security Cases Regulations carrying the mandatory death sentence unless the Attorney-General does not read newspapers or listen to radio and watch television news reports.

Two days ago, on 25th Oct., the Attorney-General, in answer to a question by my colleague, Member for Kinta, Sdr. Ngan Siong, Hing, explained that as the whole country has been declared a security area, under the Internal Security Act, anyone in possession of firearms, bullets or explosives would fall under the legal definition of “terrorists”.

The Minister said that this being so anyone carrying or storing firearms or explosives illegally in a security area was deemed to have committed an offence under Section 57 (1) (A) which carries a mandatory death penalty if found guilty, as it brings into operation the Essential (Security Cases) Regulations 1975.

Tan Sri Kadir disclosed that he has issued a directive to all Deputy Public Prosecutors to charge all cases of illegal possession of firearms under the ISA. However, he also directed that in certain cases where it is not proper to change under the ISA, but under other less stringent laws like the Arms Act, which carries even lesser penalties.

I am most shocked by this revelation, which is completely contrary to his solemn pledge to the Nation that he would “personally scrutinise every case before any person is charged under these regulations.”

I ask the Attorney-General to explain to Parliament and the nation whether his directive to all Deputy Public Prosecutors to charge all cases of illegal possession of firearms under the Security Cases Regulations is a fulfillment or betrayal of his solemn pledge to the people to “personally secrutinise every case before any person is charged under these regulations.”

His directive to all DPPs in fact is that he should only be consulted if there are persons who should not be charged under the Security Regulations.

I do not know whether the Attorney-General uses a special type of language which nobody else but aim understands, but I feel sad that a solemn pledge to the nation and people had been dishonoured by the No. 1 Lawman of the Land.

If the Attorney-General, the keeper of the legal conscience of the Executive, to give a solemn pledge that he would personally scrutinise every case before a person is charged under the Security Cases Regulations, and do the exact opposite, to direct DPPs to send him cases which they fell should not be charged under the Security Cases Regulations, where is the credibility of government and the moral right to govern?

In reply to a supplementary question which I put to him, the Attorney-General said that even of the case of the 14-year-old had been referred to him, he himself would have charged him under the ISA and Security Cases Regulations.

I am again shocked beyond the words. As the Attorney-General was kind enough to expound at great length in the debate is a “semi-judicial, discretionary” one, and that he applies his judicial mind to the cases him in deciding whether to prosecute or not.

The Attorney-General does not show any ‘judicial mind’ when he said that if the 14-year-old boy had been referred to him, he would have charged him too under the ISA and the Security Cases Regulations carrying the mandatory death sentence, when at the Subang International Airport, he said the case was ‘unfortunate’ and that the appropriate sentence would be a few years’ in Henry Gurney Reform School.

The Attorney-General’s explanation in the House that he would charge the 14-year-old under the ISA if the case had been referred to him because “That is the law as it stand” is again nonsense, because otherwise, how could he explain the prosecution of former Deputy Minister to Prime Minister’s Office, Datuk Abdullah Ahmad, for unlawful possession of a Browning automatic shotgun and ammunition under the Arms Act, and who was fined $1,500. Is there one law for the VIP and another law for ordinary boys, who must be sentenced mandatory to death? If the ISA definition a ‘terrorists’ is correct, the Datuk Abdullah Ahmad is also a ‘terrorists’. Do we therefore have a ‘terrorists’ as a Member of Parliament?

Laws must be applied with good sense, reason and humanity, whether in the application of laws by courts or in the Attorney-General’s Chamber in deciding on matters of prosecution.

In thid Dewan in December 1975, the Attorney-General appealed to the people to have trust in the Government and Ministers. No govnation can operate on such trusts alone, for it is truly said that the way to hell is paved with good intentions.

On last Monday, when I questioned the Minister for Home Affairs, Tan Sri Ghazalie Shafie, in the indiscriminate public police shooting on August 2 13 in the heart of Ipoh town in an escape id by several political detainess, the Minister defended the police machine gunning in public, seriously endangering public life, and was unable to justify the Police seizing of photographic films taken by news cameramen of the incident, which showed that the Police had acted indiscriminately, recklessly in disregard of public lives. The Minister claimed that he did not know about the confiscation of the news films, but when pressed what action he would take, came out with the stock answer of ‘security’ as a excuse to hide a million sins. Are these actions to inspire public trust?

The pertinent issue is whether Malaysia is to be a Government of 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 evil law if run by bad men – for it is not necessary for bad men to make such laws oppressive. All that is needed are for men in power to falter in become hardened and insensitive to basic civilized and human values and decencies – like the prosecution of the 14-year-old boy under the Security Cases Regulations.

Malaysia’s International Image damaged by Security Laws

The Security Cases Regulations have done a great damage to the Rule of Law – for Rule of Law can only mean Rule of Just and Good Law, and not Rule of Unjust and Repressive Law.

The Regulations, and in particular the case of the mandatory death sentence on the 14-year-old, has damaged Malaysia’s international image as a civilized nation.

The Regulations have so undermined the Rule of Law and the International Image of Malaysia as a civilized nation that for the first time in history, Malaysian lawyers have risen in revolt against such unjust, conoxious and unconscionable law. Last week, at an extraordinary general meeting of the Bar Council of Malaya, Malaysian lawyers unanimously voted to adopt a Resolution to advise lawyers not to handle Security Cases which make a complete mockery of the Rule of Law. Since the Resolution, there have been two cases, one in Kuala Lumpur, and the other in Ipoh, where lawyers have discharged themselves on grounds of conscience.

I am shocked that prosecuting officers are pressing for these cases involving mandatory death sentences to be heard even without defence counsel. They seem intent on bringing the international image of Malaysia as a civilized nation to its lowest point.

I understand that in England, where cur top law officers received their legal education and training, there is a practice direction that capital offences involving death penalty should not be proceeded with if there were no defence counsel. I urge the Attorney-General’s Chamber attention on this matter.

The Regulations have also damaged the good name of our Judiciary and Judges, and the Regulations must be repealed t protect our Judges from being regarded locally and internationally as ‘Hanging Judges’. I understand that at the recent Seoul Law Conference, one of our judge was introduces as ‘Hanging Judge’.

In the 14-year-old boy case, which the Attorney-General said the appropriate sentence would be a few years in Henry Gurney School, why deprive the Courts the power and discretion to pass such an ‘appropriate sentence’ – when eventually, the boy has been pardoned and sentence commuted to detention at Henry Gurney School. If the Courts have this discretionary power to mete punishment commensurate with gravity of crime and degree or guilty, the our judges would not attract the odium and opproprium they now may get as ‘Hanging Judges’.

And, now, if our Judges are compelled to proceed to hear cases, involving mandatory death sentences, without defence counsel, I fear the reputation of our Judiciary and Judges will take a even lower plunge in national and international circles. If we cherish the Independence of Judiciary, and respect our Judges, we should not put them in this invidious and impossible position.

I call on the Attorney-General to heed the voice of conscience of lawyers, judges and Malaysians, and to immediately issue a directive to suspend and postpone all prosecutions under the Security Cases Regulations until the objections of conscience of the legal community has been met, and that no capital offences be proceeded with without defence counsel.

Regulations subvert Rule of Law and fundamental liberties

I resent and repudiate imputations made by the Attorney-General in one of his supplementary, answers that if terrorist activity is not checked, it is because they have champions in this House who would not allow him to act effectively.

By his peculiar logic, is the Attorney-General suggesting that Malaysian lawyers who adopted the Resolution to advise lawyers not to handle Security Cases have also become ‘champions of terrorists’? are judges who entertain genuine qualms of conscience about the Security Cases Regulations the new ‘champions of the terrorists’.

If this is so, then this country is unsavable, doomed, and that the terrorists have won the battle of the hearts and minds of the country, in getting champions in this Parliament, among the majority of the legal community and even in the Judiciary. I hope that the Attorney-General and Members of the Government would not argue them into an utter absurdity and madness.

I submit in all solemnity and seriousness that what subverts the basis of a democratic Malaysia are laws like the Essential (Security Cases) Regulations 1975. The Regulations 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.

The Security Cases Regulations must be repealed to uphold the Rule of Law, to restore self-respect of the legal community, to protect the reputation of Malaysian judges from being regarded as ‘hanging judges’ and to redeem the international image of Malaysia as a civilized nation.

It would not be right for me to conclude without expressing my appreciation to the Attorney-General for iniating the process leading to the commutation of the death sentence of the 14-year-old Penang boy detention at Henry Gurney’s Home until 21 years and thereafter at the Yang di-Pertuan Agong’s pleasure. I would be happier if the boy had been sent to Henry Gurney’s Boy Home for a few years, say three or four years, and allowed to return to family and society to lead a new life.

His case, and in particular the commutation, strengthens the argument for the repeal of the Regulations, for it is unnecessary and indefensible to have put the boy to such mental agony, to bring the judiciary to such disrepute, and lawyers to such confrontation with their conscience, and above all, the damage to the international reputation of Malaysia as a civilized nation.

I urge on the Attorney-General to respect the voice of conscience and reason of loyal Malaysians who love Malaysia, whose one and only home is Malaysia, whether they come from the legislature, the judiciary or the legal community, or from the Malaysian society at large, to respect their views and aspirations – for in the end, A Government which claims to be democratic and popular must be humble and modest enough to accede to the popular demands of the people.