Unconstitutional law used to investigate ‘Allah’ hymnals, says lawyer

Lawyer Andrew Khoo says Section 298A of the Penal Code is invalid and as such, cannot be used to investigate a priest accused of possessing hymn books containing the word ‘Allah’. – The Malaysian Insider file pic, December 16, 2014.

Johor police are using a law that Malaysia's top court deemed unconstitutional in 1988 to investigate a Catholic priest for having hymn books with the word "Allah", said a human rights lawyer.

Lawyer Andrew Khoo said Section 298A of the Penal Code on causing disharmony, disunity, or feelings of enmity, hatred or ill-will on grounds of religion – was declared invalid in the then Supreme Court's hearing of case of Mamat bin Daud v Government of Malaysia.

The country's highest court, the Supreme Court as it was called then, had ruled that Section 298A was unconstitutional as it was a provision in the Penal Code, and as such had no power to legislate over Islamic matters.

As an instrument of civil law and created by Parliament, Section 298A's impact on Islamic law was unconstitutional. Under the constitution, religion is a matter for the states.

"This means you cannot charge anyone under this law. The Supreme Court had ruled that it cannot be applied to non-Muslims and was unconstitutional, except in the Federal Territories," said Khoo, who is Bar Council human rights committee chairman.

"The Johor police may say that they are only using the law to investigate, but they have proceeded to investigate and have seized materials under a provision in the law that has been rendered unconstitutional."

Calling it "outrageous", Khoo said that the police have acted unlawfully in Father Cyril Mannayagam's case as they had used the same law to detain him, seize the hymnal books and launch an investigation against him.

"To me, this is outrageous. The police have to get legal advice before acting and not after. It is not just a case that law cannot be applied, but it simply cannot be used," he added.

Cyril, a Catholic priest of five years, was detained in Tangkak, Johor, on December 5 after police received a tip-off about the hymn books, titled "Mari Kita Memuji Allah Kita", which Cyril had brought to a bookshop for photocopying.

The priest said police officers were waiting for him when he returned to the bookshop to collect the photocopied hymnals.

The 44-year-old priest was released later that night after being questioned by the police, who are still holding the 31 books.

Police have said that it was now up to the Attorney-General's Chambers to decide whether the materials would be returned to Cyril or not.

Police have also said the case was being investigated under Section 298A of the Penal Code.

Khoo said that 1988 decision by the Supreme Court was based on the premise that it was an attempt to regulate religion, which fell under state authority.

"However, the Penal Code is a federal law. And if you look at the context of the law, it is more related to religion and because of that, it cannot be under the federal government. It is a breach of the constitution.”

Khoo noted that in April this year, the Court of Appeal has used the same basis in striking out one of the three charges against controversial sex bloggers Alvin Tan and Vivian Lee over their bah kut teh post on Facebook that was deemed an insult to Muslims.

The three-man bench led by Datuk Mohtarudin Baki, in a unanimous decision, ruled that the charge under Section 298A (1)(a) of the Penal Code could not be used on the couple.

The Court of Appeal allowed Tan and Lee's appeal to strike the charge as it was bound by the 1988 Supreme Court judgment.

- TMI