On May 13, 1983, Mamat Daud and two others allegedly committed a federal crime. They acted as unauthorised bilal, khatib and imam at a Friday prayer at Kampong Kenanga, Wakaf Tapai in Kuala Terengganu.

They were charged for "doing an act which is likely to prejudice unity amongst persons professing the Islamic religion" under s.298A of the Penal Code.

The case against them was stillborn as the Supreme Court, in a 3:2 majority judgment in 1987, ruled that the offending s.298A, which was introduced in 1983 (the Penal Code and Criminal Procedure Code [Amendment] Act 1983) was unconstitutional.

The majority judgment held that Parliament did not have the power under the Constitution to make a law with regard to the religion of Islam (except for the federal territories). That power belonged to the states as Islam is a state matter.

But Dr Rais Yatim, the de facto law minister, had other plans. In March this year he invited members of the political parties, the legal fraternity and religious authorities to give their views on a law to separate religion and politics. The minister said that a law on public order justifies the curtailment of speech, assembly and association under Article 10 of the Constitution ( The Sun , March 3).

A body comprising the attorney-general, the police and representatives of the court has been formed under the supervision of the minister to study the amendment to s.298A, which was struck down by the Supreme Court in 1987.

The proposal has the prime minister's approval, "the government is now on a renewed endeavour to overcome the shortcomings that the said provision may have incurred", Bernama (Nov 23) reported under "Govt mulls over tightening of law relating to misuse of religion".

The Supreme Court decision in Mamat Daud is a "conflicting view" according to Rais and is "not fully valid in that it was only confined to Islam alone whereas that section encompassed all religions practised in the country". The campaign for the Lunas by-election apparently prompted this new announcement on a resurrected law on public order to prevent "misuse of religion".

The 1987 decision is a mere hiccup, nothing that Parliament cannot overcome. Rais was reported to have said that it was necessary to make the provision of the new law concerned clearer with regard to "the powers of the state government and that of the federal government".

Rule of law

So we are talking about law and more laws. Truly there is nothing that can stop Parliament from its law-making power. After all, we had the minister confirming that the rule of law and the rule by law is a line in the same continuum.

However, to be fair to Rais, the Mamat Daud decision is not without controversy. Salleh Abas, then Lord President, accepted the AG's arguments that to allow any Muslim or groups of Muslims to adopt divergent practices and entertain differing concepts of Islamic religion may well be dangerous and could lead to disunity among Muslims and affect public order. But he decided that the power to make such a law belonged to the state and not Parliament.

Both Mohamed Azmi and Seah SCJJ viewed the section as draconian. The object, purpose and design of the section must be investigated. The section is so wide "that it comprehends almost every act which can be construed as causing or likely to cause disharmony or disunity, or prejudicing the maintenance of harmony or unity on ground of religion".

But both Mohamed Azmi and Seah SCJJ, felt that the court should not be concerned with the motives which induced the legislation nor with the fact that it was repugnant as it was created without the necessity of proving mens rea (guilty intent).

Both ruled on legislative trespass of Parliament on a state matter. The acts specified in the law have nothing to do with public order under the federal list but are directly concerned with religious matters or religious affairs. "In our opinion denying Muslims of the defence of honest belief in and honest interpretation of Islamic doctrine can only be enacted by the state legislatures."

Abdoolcader SCJ in his dissenting judgment ruled that s.298A was added in 1983 to specify a distinct criminal offence affecting public order in relation to activities grounded on religion. Mens rea is not pertinent.

The defence of honest belief on, or honest interpretation of, any precept, tenet or teaching of any religion would make s.298A "wholly edentulous, impotent and sterile" as such a defence "would invariably succeed, understandably in regard to matters of faith, conscience and personal conviction and belief".

Abdoolcader said that s.298A is not about Islam. It applies to all persons irrespective of the religion they profess and "clearly relates to the dominant aspect of public order consequent upon activities exercised on grounds of religion and is directed at ensuring the tranquil observance of all faiths".

The Mamat Daud decision did not make any decision on the following matters. It did not clarify whether the actions enumerated in s.298A are reasonable or of sufficient gravity to justify the protection of public order over freedoms. The court did not get to decide whether the acts allegedly committed by Mamat Daud and company are indeed "acts likely to prejudice unity amongst persons professing the Islamic religion".

Court decisions are limited to the issues posed to the court for decision. It remains a frightening thought that states are supposedly empowered to pass any law to the extent of denying Muslims the defence of honest belief in and honest interpretation of Islam.

Assuming that Parliament succeeds in re-making this "misuse of religion" law for non-Muslims, it may mean that non-Muslims are disallowed that defence of honest belief as well.

Perhaps it was this decision which encouraged the flurry of state laws on "insulting the religion of Islam" and the rehabilitation laws. Perhaps it was this decision which laid bare the draconian nature of such laws as impinging on diversity of beliefs among Muslims, freedom of conscience (apostasy laws) that led Malaysians to voice their concerns on these matters in recent years.

As s.298A remains a validly legislated law for the federal territories (Parliament being the proper legislature on Islamic matters for the federal territories), the champions of these responses and actions including the 29 Malaysians who petitioned Suhakam to oppose the Restoration of Faith Bill may even attract persecution under this section.

Absolute freedom

There are no absolute freedoms in a modern-day constitution. However, any restriction that a government seeks to justify on grounds of public order or national security must have the genuine purpose and demonstrable effect of protecting a legitimate public order or a national security interest.

Thus, the state must demonstrate or show that the act(s) in question poses a serious threat to legitimate national security/public order interest. There must be some connection between the act and the likelihood of a breach of national security or public order. The restriction imposed is the least restrictive of protecting that interest. The restriction must be compatible with democratic principles.

A restriction is not justified if its purpose is to protect interests unrelated to national security/public order, for instance, to protect a government from embarrassment or exposure from wrongdoing. Each case must be properly scrutinised by an independent judiciary.

It is very difficult to buy the argument that we should accept a law on public order if everybody is not subject to the same law, regardless if he is a BN or BA politician or a member of the public. What is at stake is whether we should support a public order law that gnaws away at our fundamental liberties especially Article 10 (speech, assembly and association) and Article 11 (freedom of religion), partisan politics notwithstanding.

In any human society, there will be different views and conflicting interests with regard to political power, development, allocation of economic resources, social policy and service. The state mediates.

Constitutionalism signifies a system of government that seeks to enable the people who have no direct control over the apparatus or institutions of the state to ensure that their views and interests are well served by those in control of the state. It is not a case of the state having a public to order.

Civil society is about defining our access to institutions of the state, our influence over them and the extent to which these institutions reflect our chosen values. Civil society will not flourish where the power of the state is too excessive, intrusive or partisan.

SALBIAH AHMAD is a lawyer. Malaya! means freedom in Tagalog. The events at the end of 1998 in KL offer a new inspiration. Malaya! reclaims the many facets of independence.