JUDGMENT

Arulanandom J:

This is an application by way of motion for the following orders:

(1)The Honourable Court has no jurisdiction to try the applicant under the Essential (Security Cases) Regulations, 1975 and the Essential (Security Cases) (Amendment) Regulations, 1975 as the said regulations are purportedly made under s. 2 of the Emergency (Essential Powers) Ordinance No. 1 of 1969 which is null and void and of no effect. The said regulations are accordingly void and inoperative;

(2)The Honourable Court cannot legally try the applicant until there is a preliminary enquiry before a Magistrate in accordance with the provisions of Chapter XVII of the Criminal Procedure Code (FMS 6);

(3)Any further or other order deemed fit by Honourable Court.

The applicant in this case was charged on 27 January 1976 in the Magistrate's Court, Penang. The charges against him were as follows:

First Charge:

That you on the 13 January 1976, at about 12.35 pm at the junction of Kampar Road and Ayer Itam Road, in the District of Georgetown, in the State of Penang, without lawful excuse did have in your possession a firearm, to wit, a homemade .38 Revolver, and thereby committed an offence punishable under s. 57(1)(a) of the Internal Security Act, 1960.

Second Charge:

That you on the same date, time and place, in the District of Georgetown, in the State of Penang, without lawful excuse did have in your possession ammunitions, to wit, five rounds of .38 Special Revolver bullets, and thereby committed an offence punishable under s. 57(1)(b) of the Internal Security Act, 1960.

He was committed under the provisions of reg. 6 of the Essential (Security Cases) (Amendment) Regulations, 1975, to stand trial in the High Court in Penang. The case was fixed for hearing on the 4 and 5 March 1976. On the 28 February 1976, the said notice of motion was filed and fixed for hearing on the same dates. The first question this Court has to consider is whether the procedure adopted by the applicant is correct and proper. While it is ostensibly for the purpose of raising a preliminary objection to the jurisdiction of the High Court to try him on the said charges, it goes much further and seeks a declaration that the Emergency (Essential Powers) Ordinance No. 1 of 1969, is null and void and of no effect. So, the substantive point raised in this application is the declaration of the invalidity of the said Ordinance. It is abundantly clear that any action seeking a declaration of this nature can only be commenced by way of a writ. It cannot be commenced by a notice of motion. While the reason for proceeding in this manner may be transparent, however, it is not the duty of the Court to probe into reasons and make any findings on that score, however unpalatable they may be. However, in the interests of justice and in order to allow the applicant full liberty to exercise his rights to defend himself, the Court will, instead of striking out the motion for procedural defect, consider his application as a preliminary objection to jurisdiction of this Court in Criminal Trial No. 1 of 1976. I will repeat again that this Miscellaneous Criminal Application is made as a completely separate motion No. 4 of 1976 while the Criminal Trial itself is numbered No. 1 of 1976.

The next question the Court has to consider is whether the Registrar was correct in refusing to issue sub-poenae to the following persons:

(1) Tan Sri Abdul Kadir bin Shamsuddin, Chief Secretary to the Government;

(2) Tunku Tan Sri Mohamed bin Tunku Besar Burhanuddin, Chief Secretary to the Government in 1969;

(3) Mr. Thor Beng Chong, Govt. Printer in 1969.

Counsel for applicant made a complaint about this refusal at the outset and requested the Court to order the issue of subpoenae to those persons to attend the trial.

Earl Jowitt's Dictionary of English Law with which I presume everybody is familiar defines 'subpoena' as 'a writ or summons issued in an action or suit requiring the person to whom it i