Razali Ahmad

- vs -

Public Prosecutor

Judgment

Salleh Abas FJ

(delivering the judgment of the Court)

1. The appellant was convicted of two offences under ss 57(1)(a) and (b) of ISA 1960, for having in his possession a pistol and 88 rounds of ammunition. The conviction was based on the evidence of two prosecution witnesses PW6 and PW7.

2. On 22 February 1977 a bus stopped at a road block at Kodiang, Kedah. PW7, one of the police constables manning the road block went to guard the entrance of the bus whilst his superior Corporal Ayob (now dead) entered the bus to examine the passengers. There were about 30 passengers in the bus and the appellant who was one of them was seated alone in a seat which was a third row counted from the back of the bus. Corporal Ayob examined the passengers one by one and when he came to the appellant he said that there was someone carrying a dangerous weapon. So saying, he took the appellant down whilst the bus and the rest of the passengers continued the journey. The appellant was then carrying a dark blue bag. He was taken to the guard room where his bag was examined in his presence. Among the contents of the bag the pistol and 88 rounds of ammunition, the subject-matter of the two charges against him were found.

3. Counsel for the appellant attacked the findings of the learned judge but we saw no reason to interfere with his finding as the evidence of PW7 was fully supported by that of PW6 who was the conductor of the bus. This witness gave evidence as to the examination of passengers and the arrest of the appellant by Corporal Ayob in the bus. There is nothing in the evidence adduced in this case which could render these two witnesses as unworthy of credit.

4. The only point raised in the appeal which ought to be dealt with and for which we reserved our decision is a highly technical point of law which, counsel for the appellant told us, was raised by him twice in High Court at Penang and once in High Court at Alor Star, and each time he was overruled. He said that this is the first time that he has the opportunity to raise the point before the Federal Court. The submission is that despite s 9(1) of the Emergency (Essential Powers) Act, 1979, the Essential Security Cases Regulations, 1979 as amended [PU(A) 320/79 and PU(A) 362/79] are still not validated. Parliament failed in its efforts to revive these regulations, because the expression “Every Subsidiary Legislation” used in s 9(1) of the Act must have the same meaning as defined in s 3 of the Interpretation Act No 23 of 1967, i.e.

   any proclamation, rule, regulation, order, notification, bylaw or other instrument made under any Act, Enactment, Ordinance or other lawful authority and having legislative effect;

5. Thus when s 9(1) of the Emergency (Essential Powers) Act, 1979 enacts that “Every subsidiary legislation .... shall be valid,” only those having the force of law is validated by the section. And as the Essential Security Cases Regulations were not made by lawful authority nor having the force of law by virtue of the Privy Council’s ruling in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 PC, they are not within the expression “Every subsidiary legislation” in s 9(1) of the Act, and therefore not validated.

6. This exercise in legal mathematics was not dealt with by the Federal Court in Teh Cheng Poh v Public Prosecutor [1979] 2 MLJ 238 FC nor in Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70. In Teh Cheng Poh the Lord President only dealt with the question of the inconsistency raised by Mr. Karpal Singh of sub-s (1) of s 9 with sub-s (3) of the same section, whilst the Phang Chin Hock’s case merely dealt with the question of the invalidity of the Act on the ground of its being inconsistent with the basic structure of the constitution. Thus the question whether or not s 9(1) revives the Essential Security Cases Regulations, having regard to the definition of subsidiary legislation in the Interpretation Act, still remains open.

7. The crux of the submission, it seems to us, is whether Parliament intended the expression “every subsidiary legislation” in s 9(1) of the Act to have the meaning assigned to the expression “subsidiary legislation” in the Interpretation Act. If we accept that the expression has the same meaning it means that the Act is validating something which is already validly done and cannot validate what was not validly done. To us this is absurd and we cannot attribute such exercise in futility to Parliament. For this purpose we set below s 9(1) of the Emergency (Essential Powers) Act.

   Every subsidiary legislation whatsoever made or purporting to have been made under the Emergency (Essential Powers) Ordinance, 1969, (hereinafter in this Act referred to as “the Ordinance”) on or after 20 February 1971 shall be valid and have effect as if the said subsidiary legislation has been made under the appropriate provision of this Act and shall be deemed to have come into force from the date on which the subsidiary legislation came into force or purported to have come into force under the Ordinance, and shall be read with all such modifications as may be necessary to construe such subsidiary legislation as having been made under this Act.

8. It is clear that the expression “every subsidiary legislation” in s 9(1) of the Act is not intended to include a general species, but limited to a particular kind. This expression is amply qualified by the words “whatsoever made or purporting to have been made under the Emergency (Essential Powers) Ordinance, 1969 on or after 20 February 1971.” This qualifying phrase clearly shows that Parliament did not intend to import the definition of “subsidiary legislation” in the Interpretation Act into the section. The qualifying phrase refers to all regulations which purported to have been made under the Emergency (Essential Powers) Ordinance, 1969 being regulations which were struck down by the Privy Council in Teh Cheng Poh [1979] 2 MLJ 238 FC. These regulations must necessarily include the Essential Security Cases Regulations which are therefore validated by s 9(1) of the Act.

9. There is no question as to the power of Parliament to pass a validating Act, as this is succinctly stated by the Lord President in Teh Cheng Poh v Public Prosecutor [1979] 2 MLJ 238 FC as follows:—

   The regulations having been ruled to be ultra vires, it is open to Parliament to validate them and further, to validate them with retrospective effect. With respect, we agree with the [following] statement of the Indian Supreme Court at page 908 in Rai Ramkrishna v The State of Bihar [1964] 1 SCR 897:

10. We therefore feel that no more attempt should be made by counsel to raise the point in other High Courts.

11. In our view, there is no merit in the point raised and hence we dismiss the appeal.

Cases

Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50; Teh Cheng Poh v Public Prosecutor [1979] 2 MLJ 238; Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70

Legislations

Emergency (Essential Powers) Act 1979: s.9

Interpretation Act 1967: s.3

Representations

Subash Chandran for the appellant.

Shaikh Daud Mohamed Ismail (Senior Federal Counsel) for the respondent.