JUDGMENT

Raja Azlan Shah Acting LP:

This is an appeal against the refusal of the learned Judge to grant leave to apply for an order of certiorari to quash (i) the certificate issued by the Attorney-General under reg. 2(2) of the Essential (Security Cases) Regulations 1975, (ii) the consequential certificate issued by him under reg. 6(1) of the said Regulations and (iii) the consequential order of the learned Magistrate, Tampin, transferring the criminal case in question to the High Court, Kuala Lumpur.

On 10 July 1982 the appellant together with four others, one of whom is the Federal Minister of Culture, Youth and Sports, were charged in the Magistrate's Court at Tampin, Negeri Sembilan with the murder of the former Negeri Sembilan State Assembly Speaker, Dato' Mohd. Taha bin Talib, an offence punishable under s. 302 of the Penal Code read with s. 34 of the same Code. The alleged offence was committed on 14 April 1982 that is 7 days after nomination day for the Federal and State General Elections 1982 which were held on 22 April 1982.

The learned Attorney-General who appeared for the prosecution tendered two certificates under reg. 2(2) and 6(1)of the Essential (Security Cases) Regulations 1975. The effect of the two certificates is that the Attorney-General treated the offence as a security offence and specified the High Court, Kuala Lumpur as the place of trial. He then successfully applied for transfer of the case to the High Court, Kuala Lumpur. On 13 July 1982 the appellant together with the other three (one has since died) appeared before the High Court, Kuala Lumpur. They claimed trial. The case was then fixed for hearing to commence on 11 October 1982.

Regulations 2(2) and 6(1) of the Essential (Security Cases) Regulations 1975 read as follows:

2(2) Where the commission of any offence against any written law other than ss. 57, 58, 59, 60, 61, and 62 of the Internal Security Act 1960, in the opinion of the Attorney-General, affects the security of the Federation, he shall issue a certificate to that effect and the case shall thereupon be dealt with and tried in accordance with these Regulations.

6(1) Where a security case is triable by the High Court, no preliminary enquiry shall be held in respect thereof, and the Magistrate before whom the accused is produced shall forthwith commit the accused for trial by the High Court at such place (whether within the same State or not) as the Public Prosecutor may specify and upon such charge as the Public Prosecutor may prefer.

On 29 July 1982 the appellant filed an ex parte originating motion for leave to apply for an order of certiorari to quash the two certificates and the other of the learned Magistrate transferring the case to the High Court, Kuala Lumpur. The gravamen of the appellant's case is that murder is not an offence which affects the security of the Federation in the context of reg. 2(2). Counsel on his behalf said that the regulation is framed in an "objective" form - "in the opinion" of the Attorney-General. He submitted that there is a condition precedent to be fulfilled before the Attorney-General can classify the case as a security offence, namely, that the offence must be one that affects the security of the Federation. He said the appellant is not a communist, a communist terrorist or insurgent or a subversive element, nor are the other three accused persons. Therefore it is contended that the Attorney-General had acted on extraneous considerations which ought not to have influenced him and he had thus acted in excess of the power conferred upon him by the regulation. Counsel referred us to the following cases: Merdeka University v. Government of Malaysia [1981] CLJ (Rep) 191, Labour Department v. Merrit Beazley HomesLtd 1 NZLR 505, 506; Romesh Thappar v. State of Madras [1950] AIR SC 124 at 127; Ram Nandan v. State [1959] AIR Allahabad 101; PP v.Oh Keng Seng [1976] 2 MLJ 128, 132; R v. Home Secretary, Ex parte Hosenball [1977] 1 WLR 766, 781.

On the other h