Suffian LP:

These four appeals were argued one after another in the combined hearing of all counsel involved, as some of the grounds of the appeal overlap.

In appealNo. 40 the accused was sentenced to death for the offences of possession of firearm contrary to s. 57(1)(a) and of ammunition contrary to s. 57(1)(b) of the Internal Security Act, Act 82 ("ISA"). Similarly, the accused in appealNo. 46. In appealNo. 39 the accused was sentenced to life imprisonment for the offence of consorting with the accused in appealNo. 40 contrary to s. 58(1) ISA. In appealNo. 43 the accused was acquitted of the offences of possession of firearm and ammunition contrary to s. 57(1)(a) and (b) ISA.

Offences against ss. 57 and 58 of ISA are security offences and cases against all the accused are therefore security cases, see reg. 2(1) of the Essential (Security Cases) Regulations, 1975 ("the 1975 regulations" or "the regulations"), published as PU(A) 320 and amended by PU(A) 362 in 1975, and so by virtue of reg. 3 of the regulations they were tried in accordance with the special rules of procedure and evidence prescribed by the regulations.

Validity of 1975 regulations

The first point taken on behalf of all the accused is that the regulations are void because the Emergency (Essential Powers) Ordinance No. 1 ("the Ordinance") published as PU(A) 149/69, under authority of which the regulations were made, had itself lapsed and ceased to be law by effluxion of time and by force of changed circumstances.

To appreciate this argument it is necessary to state that under cl (1) of article 150 of the Constitution if the Yang di-Pertuan Agong is satisfied that a grave emergency exists he may issue a proclamation of emergency and that a day or two after the general election in 1969 there were serious riots in Kuala Lumpur and in one or two other areas and His Majesty acting on responsible advice proclaimed an emergency, see PU(A) 145/69 ("the 1969 proclamation"). That was on 15 May 1969, and on the same day His Majesty also promulgated the Ordinance, inter alia, giving himself power to make essential regulations which he considers desirable or expedient for securing the public safety, the defence of Malaysia, the maintenance of public order and of supplies and services essential to the life of the community, and it is in exercise of this power that in 1975 His Majesty made the regulations.

Counsel accept the validity of the 1969 proclamation at the time when it was made in view of the serious situation then prevailing, but submit that since then and by 1975 the situation has changed, is no longer serious, that the then Yang di-Pertuan Agong has been succeeded by two other Yang di-Pertuan Agongs, that another general election has been held, and that in view of all this it cannot be said that there is any longer any necessity and basis for an emergency and that if there is, then His Majesty should have been advised to issue a fresh proclamation, as he did in 1966 to deal with the political crisis arising out of the action of Datuk Stephen Kalong Ningkan, see [1968] 2 MLJ 238 , though there was already then the 1964 proclamation of emergency still in existence to deal with Indonesian confrontation. It is submitted that it was necessary to issue a fresh proclamation of emergency in 1966 because the 1964 proclamation had expired due to the normalization of relations between us and Indonesia, and that if in 1966 it was necessary to proclaim an emergency afresh to deal with the Datuk, then surely in 1975 it should have been necessary to issue a fresh Proclamation that year to deal with people carrying firearms, notwithstanding the existence of the 1969 proclamation, and the failure to do so invalidates the 1975 regulations.

Harun J in the case out of which arises appealNo. 43 is also of the view that the 1969 proclamation has lapsed and is no longer in force. He said:-

It will be ridiculous in the extreme to prosecute any person to-day for an offenc