Johor police appear to have committed a boo-boo by using a struck-out section of the Penal Code to probe a priest for possessing hymn books that contain the word 'Allah'.

The state police had said Father Cyril Mannayagam was being investigated under Section 298A of the Penal Code.

The law relates to the offence of causing disharmony, disunity or feeling of enmity, hatred or ill-will, or prejudicing the maintenance of harmony or unity, on grounds of religion.

However, lawyer Andrew Khoo ( right ) told Malaysiakini that the section had already been declared unconstitutional in 1988 and was struck out.

Khoo said in the case of Mamat bin Daud vs Government of Malaysia (1988), the then Supreme Court ruled that Section 298A of the Penal Code was ultra vires the Federal Constitution.

"The Supreme Court said the legislation is purported to be on the basis of public security but in actual fact is a regulation of religion.

"And since religion is a state issue, the federal government couldn't use the legislation," Khoo said.

According to the Ninth Schedule of the Federal Constitution, matters pertaining to religion are the exclusive jurisdiction of the states, while public order is under federal jurisdiction.

The police cannot initiate any detention or seizure under Section 298A as their action would be unlawful," Khoo said.

He added that since this section of the Penal Code had been struck out, it is technically "non-existent".

'Cease unlawful action'

This is not the first time the authorities had committed a similar boo-boo.

In April this year, the Court of Appeal struck out one of three charges against bloggers Alvin Tan and Vivian Lee who had allegedly insulted Islam in a Ramadan greeting on Facebook that contained the image of pork.

Justice Mohtarudin Baki ruled that Section 298A of the Penal Code was non-applicable as he was bound by the 1988 Supreme Court decision on the matter.

The lawyer for Tan and Lee had argued that the law was not applicable to non-Muslims.

While the same argument may apply to Cyril who is Christian, Khoo said the fact Section 298A had been struck out means it cannot apply to all Malaysians regardless of religion.

When contacted about this, Johor’s Criminal Investigation Department (CID) deputy chief Dennis Lim declined to elaborate on the matter and instead passed the ball to the Attorney-General's Chambers.

"The case has been referred to the deputy public prosecutor," Lim told Malaysiakini .

However, Khoo said the police should not press on with the matter after making a mistake and that there was no other similar federal legislation which they could rely on.

Mannayagam was detained by police on Dec 5 to have his statement recorded after confiscating 31 hymn books entitled "Mari Kita Memuji Allah Kita" that belonged to him.

The books were confiscated from a photocopy shop in Tangkak. The priest had delivered them there for copying.