KUALA LUMPUR: The trial of 19 Al-Ma’unah members convicted of treason should be nullified as procedures expressly stated in the Essential (Security Cases) Regulations (Escar) were not used throughout the proceedings, Karpal Singh submitted before the Federal Court yesterday.
He said that since the prosecution had made an application for the case to be transferred to the High Court here, citing security reasons for the application under Regulation 6 of the Emergency Act 1969, it had to strictly adhere to the procedures laid down in Escar.
On Aug 8, Attorney-General Datuk Abdul Gani Patail, who was then a Senior Deputy Public Prosecutor, made the transfer application at the Taiping High Court on behalf of former A-G Tan Sri Mohtar Abdullah.
Karpal Singh said: “All regulations must apply in totality regardless of whether it is to the benefit of the accused. A failure to do so and the entire trial stands in nullity.”
He said if the Federal Court agreed with his submissions, it could not order a retrial but should instead leave it to the Public Prosecutor to decide whether or not to carry on with prosecuting afresh the accused. “Too many faults have been committed (by the prosecution) for this court to condone.”
The Federal Court had, in a letter dated Nov 14 last year, written to all the parties seeking submissions on the effect of Escar on the evidence adduced during the trial.
Karpal Singh was representing Al-Ma’unah leader Mohd Amin Mohd Razali, who together with 18 others, were convicted by the High Court on Dec 28, 2001with waging war against the Yang di-Pertuan Agong a year earlier.
Justice Zulkefli Ahmad Makinudin had on Dec 28 convicted them of committing the offence at three places – Pos 2, 19th kilometre of the Kuala Rui, East-West Highway, Grik, Hulu Perak; 304th Battalion (Infantry), Territorial Army, Kem Grik, Hulu Perak; and Bukit Jenalik, Kemajuan Tanah Ngor, Sauk, in Kuala Kangsar. He imposed life sentences on 16 of them.
Mohd Amin, together with Zahit Muslim and Jamaludin Darus, whom the judge found to be directly involved in the offence, were sentenced to death.
The 18 men are appealing against their conviction and sentences while Mohd Amin is appealing against his sentence only.
Earlier, Gani told the court that the prosecution had indicated from the very beginning it would not be applying the Escar, and now could not turn around and use it as it would not be fair to the accused.
“If it does not prejudice the accused in that ‘defect’ (of not referring to Escar in the trial but instead using ordinary laws), then it is accepted,” he said.
Gani said that even under Escar, the weight of the evidence in the trial would have to be examined and at the end of the day, ordinary laws would apply and again not cause any prejudice to the accused.
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