The Malaysian Government faces a major legal and constitutional crisis following a Privy Council ruling that the Essential Regulations are invalid.

The Privy Council, the highest court of appeal in the Commonwealth, recommended the retrial of a man convicted of firearm possession on the grounds that the Essential (Security Cases) Amendment regulations 1975 ultra vires (exceeding in the powers of) the Constitution. Teh cheng Poh of Penang was sentenced to death in November 1976 under the above law, and his appeal to the Privy Council - the latest criminal appeal from Malaysia - is considered a test case.

In reaching its decision, the Privy Council took two things into account. (1) that under the Malaysian Constitution, the King has the powers in an Emergency to promulgate ordinances having the Force of Law - but this power is in force only when the Parliament is not in session. (2) that the Malaysian Parliament was in session in 1975 when the King promulgated the Essential Regulations.

On these grounds, the Privy Council ruled that all Essential Regulation promulgated in this manner were invalid. This includes the Rukan Tetangga regulations, under which a kind of compulsory home guard duty operates.

Background to the Regulations

The Essential Regulations were hastily declared in 1975 in the wake of intensified guerrilla activities in the country. However, they have been more successful at stamping out the remnants of democratic rights of the people, than at catching guerrillas. Under the Regulations, hearsay is admitted as evidence, witnesses are allowed to testify masked, and the accused is presumed guilty until proven innocent. In short, the Regulations turn basic legal tennet on its head, and remind one of the laws which operate in fascist countries. As such, the Regulations have been severely condemned by legal profession at home and abroad.

A series of confrontations between the government and the Malaysian legal profession followed the promulgation. The government amended the Legal Profession Act to muffle the voices of the lawyers. When lawyers threatened to boycott security trials, the government declared that foreign lawyers would be used in their place.

To date, 44 people have been sentenced to death under the Regulations. A 14-year old boy was sentenced to death but the government was forced to commute the sentence under a powerful domestic and international campaign.

Reactions

Commenting on the ruling, Mr Param Cumaraswamy, former secretary of the Bar Council, said the existing legislation was oppressive, against the rule of law and should be repealed. However, there has yet been no government reaction to the Privy Council ruling.

According to a member of the Bar Council, the government has a few courses of action - it can order new trials for the men awaiting death, detain them under the Internal Security Act indefinitely without trial, or amend the Constitution to retrospectively "legalise" the Regulations. The last course of action is likely to invite widespread criticism.

Observers also point out that if the Constitution is to be amended, it will have to be carried out under "favourable climate" - hence one should not rule out the possibility of government - engineered security incidents to justify the necessity for the Regulations.