Mohamed Dzaiddin CJ:

These two appeals, heard together and the subject of one judgment, were from the decision of Zulkefli J who dismissed the preliminary objections raised by the appellants in the criminal trials in the High Court below.

The facts of the case are set out in the judgment of my learned brother Dato' Ahmad Fairuz, HMP and there is no need for me to repeat them except to recap the preliminary issues raised by counsel on behalf of the appellants before the learned trial judge.

In Appeal No. 05-10-2000(W), they raised the following issues:

(1) The Essential (Security Cases) (Amendment) Regulations 1975 (ESCAR) is invalid and unconstitutional and therefore the trial under ESCAR is invalid and unconstitutional;

(2) The trial under ESCAR is invalid for non-compliance with reg. 6(2) of ESCAR ie, the record of proceedings were not supplied to the appellants before the trial.

In Appeal No. 05-11-2000(W), the issues were:

(1) The Essential (Security Cases) (Amendment) 1975 (ESCAR) pursuant to which the appellant is being tried is invalid on the ground that the reg. 26 of ESCAR speaks of a right to appeal to Federal Court and it later provides the right of appeal to a court to wit the Supreme Court which is no longer in existence.

(2) The Proclamation of Emergency by YDPA was invalid on the ground that YDPA did not act on the advice of the Cabinet as required by art. 40(1) of the constitution. If that Proclamation was invalid, the Emergency (Essential Powers) Act 1979which resurrected the ESCAR following their being declared invalid and unconstitutional by the Privy Council in Teh Cheng Poh v. PP [1979] 1 MLJ 50 was itself unconstitutional and invalid, thus rendering ESCAR being still invalid and unconstitutional leading to the commencement and continuing of the trial of the appellants being a nullity.

I have had the advantage of reading in draft the grounds of judgments of my learned brothers, Abdul Malek, HMP and Ahmad Fairuz HMP. For reasons they have given, I too would dismiss these appeals.

In addition to the judgment of my learned brother Dato' Fairuz on the issue of non-compliance with reg. 6(2) of ESCAR, I would like to express the following opinion.

Regulation 6(2) of ESCAR states:

Where the accused is committed for trial under paragraph (1), he shall be supplied with a copy of the record of proceedings before the committing Magistrate.

Regulation 11(1) provides as follows:

The trial of a security case shall begin with the charge being read and explained to the accused who shall thereupon be asked whether he pleads guilty of the offence charged or claims to be tried.

It is clear from reg. 11(1) that the commencement of the trial begins with the charge being read and not when witnesses begin to testify. Notwithstanding the fact that the trial had already commenced and the accused persons were not supplied with a copy of the record of proceedings, I think what remains to be considered is whether the failure to supply the notes to the accused persons renders the trial a nullity. Encik Kamarul Hisham, learned counsel for the appellants had contended that the trial had already taken place at the time when the preliminary objections were raised and the non-supply of the notes of proceedings rendered the committal unlawful under reg. 6(2).

In my opinion, failure to comply with reg. 6(2) of ESCAR does not render the trial a nullity. This is because looking at ESCAR as a whole, it is clear that what is of importance is the justice of the case. Here, I would rely on reg. 17 which provides:

The court shall decide on the guilt or innocence of the accused only at the conclusion of the case for defence, and it shall so decide upon hearing and considering the evidence of both the prosecution and the defence as a whole, having regard to the justice of the case, without regard for the technicalities of the rules of evidence or procedure or for any defect concerning the charge.

No doubt, reg. 6(2) provides for the right of