L AS LEYES LOCALES AVANZAN ANTES QUE LAS FEDERALES

He later explained that the D.A.P.'s stand did not mean that it supported the first set of the E.S.R., but merely an expression of the party's loyalty to the King. He stressed that support for the government's policies and loyalty to the King v/ere entirely different things. The D.A.P. then called for a Parliamentary debate to express its opposition and concern to the E.S.R. At the same time it instructed its lawyers to ötudy the legal and constitutional implications of the E.S.R. with a view to challenging the government to court.

In opposing the first set of the E.S.R., the D.A.P. pointed out tha.t they sought to turn the country into a police state with the tendency for people to turn informers either out of fear or for personal gain. The party held that the government's motive was to start a communist witch hunt by making it compulsory that all residents in designated areas, including

88. See Lim Kit Siang's letter to the Ear Eastern Economic Review, 7th November, 1975*

09. See K.Das,"Panic Measures under fire", E.E.E.R., 31st October, 1975» pp. 11-3.

children above 14 years, inform the authorities of persons inside or outside the areas having committed, attempting to commit or having been suspected of committing offences in relation to security. The nature of the offences was so vaguely defined that they covered not only offences under the law but

also almost anything deemed by the authorities to be prejudicial to the

economic, morale or social well-being of the area. The D.A.P. continued

that if residents failed to report any offences or suspected offences com­ mitted, they themselves would be deemed to committing an offence. Thus the residents affected would be in a dilemma as they could either be incrimina­ ted for offences they did not commit or charged with failing to report of­

fences that they were unsure of. Since the truthfulness of the evidence of

informers need not be ascertained, the D.A.P. argued that this would encou­ rage people to become informers, either to settle old scores, to receive

bribes or for a variety of other reasons. The D.A.P. also highlighted the

questionable principle of group liability in which all members of a house­ hold were collectively responsible for crimes committed by any member, even

though they may be innocent. It regarded this as a way to intimidate chil­

dren to spy on their parents and vice-versa. The constant surveillance of

the movements of all residents in designated areas, according to the D.A.P., 91

thus violated the principles of justice.

The major part of the D,A.P.'s criticisms was directed towards the second set of the E.3.R., the Essential(Security Cases Regulations.

91. See Fan Yew Teng(l978)> op. cit., p. 24* To substantiate his charges.

Fan quoted an excerpt from the June I976 issue of the Review, the of­

ficial organ of the Geneva-based International Commission of Jurists: "Equally disturbing are the provisions of the Community

(oelf-Reliance)Regulations, 1975» which make every member

of a household above the age of 14 years responsible for

the family's activities. This is either to be regarded as a form of guilt by association, or as a form of repri­

sal. In either case, it is a serious violation of the

It felt that the gross abuse of absolute and arbitrary powers by the govern­ ment to intimidate its opponents was most likely to take place in conjunc­ tion with security cases. The D.A.P. held that the Essential(Security Cases) Regulations strengthened the I.S.A. in detaining suspects indefinitely with­

out trial. They were so obnoxious to the rule of law that the usually do­

cile Bar Council of Malaysia had even called for their repeal at an extra­ ordinary meeting in Kuala Lumpur in early 1976» The Bar Council's grounds for objecting were numerous and varied, but the conclusion derived was that the accused did not have the slightest chance of proving his innocence due

to the draconian measures introduced to negate a fair trial. It accused the

government of a gross abuse and misuse of power. In fact the Secretary of

the Penang State Bar Committee alleged that the 2 sets of the E.S.R. reflec­ ted the government's inability to secure convictions under existing laws

(i.e. the I.S.A.)". The Bar Council's reaction was a manifestation of its

disappointment that the government never consulted it before the E.S.R, were decreed in 1975 and amendments to the Constitution were made in 1976» to

make them more effective. As a result, on 18th October 1977» it instructed

its members not to appear in trials under the Essential(Security Cases) Re­ gulations?"^

92. See K.Las,"Panic Measures under fire", Far Eastern Economic Review,

31st October, 1975» p* 12.

93» Fan Yew Teng,(l978)> op. cit., p. 25. The following

resolution was passed by the Bar Council at the meeting: "To resolve that all members of the Bar of the States

of Malaya be advised not to appear in trials under the Essential(Security Cases) Amendment Regulations 1975 whether retained or assigned from henceforth as these regulations are oppressive and against the rule of lav/. Provided that those who have been retained prior to 18th October 1977 may either discharge themselves or

refund any fees collected or complete their brief", Op. cit.

Fan claimed that by 24th October 1977» 4 lawyers had abided by the

above resolution and decided to withdraw their services to clients who were appealing against sentences passed under the E.S.R.

In tabling his motion on 19th December 1975 in Parliament to get the Essential (Security Cases)Regulations repealed, Lim Kit Siang cited seve­ ral grounds of objection, especially the violation of the principle of the

94

rule of law. This was to give the impression that the D.A.P. was not al­ one in it3 opposition to the government and that the Bar Council was behind it. The D.A.P. accused the government of deliberately seeking to give a different interpretation to the principle of the rule of law to strengthen its powers. The party contended that the government had actually advocated and practised "legality" while misleading the people to believe that it up­ held the rule of law. These two concepts, according to the D.A.P., were

entirely different. Lim Kit Siang held that legality, which corresponded rather to the rule of men, need not necessarily follow the rule of law; that was why there were so many amendments to the Constitution to make the law

follow the whims and fancies of those in power, i.e. the N.F. The essence of legality was to make the actions of those in power legitimate and justi­ fiable. The predictable consequences of legality, he added, was the drift towards a dictatorial state along the lines of Hitler's Germany. Manifes­ tations of this were the gross abuse and misuse of power and the arbitrary interference with the fundamental rights and liberties of individuals. The D.A.Po claimed that the wide and arbitrary powers of the Attorney- General as provided by the Essential(Security Cases)Regulations were likely

95

to be abused and misused". It was alleged that he could use his discretion

94» Lim Kit Siang listed 6 objections. They Y/ere (i) A blow to the rule of law; (ii) A blow to human rights; (iii) Constitutional violations; (iv) Gross abuse and misuse of power; (v) Parliamentary democracy

would be undermined and (vi) A set-back in the battle for the hearts and minds of the people. For further details, see Parliamentary speech,"The Security Cases Regulations", in Lim Kit.Siang, op. cit., pp. 184-98.

95. Ibid, p. 192. See also K.Das,"Law Critics cut deep", Far Eastern Economic Review, 11th November, 1977*

to certify whether cases brought before him were security cases, premising his criteria solely on opposition to the government, irrespective of whether

it was inspired by the communists or not. Once a case was certified to be

a security case, it was up to the accused to prove his innocence rather than for the prosecutor to find him guilty. The D.A.P. contended that this re-

96

moved one of the most fundamental safeguards for a fair trial. It also

97