Abstract
This article promotes Islam's interpretation within the legal framework of the indigenous Malayan based on its principle of sovereignty. At present, Islam is popularly defined by the Court's decision in Che Omar Che Soh vs Public Prosecutor, where the sovereignty of the Malay Rulers was made as a parameter in interpreting Islam within the context of Article 3 of the Federal Constitution. The said decision confines Islam only in the context of personal laws due to the Pangkor Treaty, 1874. This is a qualitative study applying the legal history design. The findings showed that the indigenous sovereignty sourced from the Islamic teachings had not been affected despite the introduction of the doctrine of advice and various British policies throughout their intervention in Malaya. In fact, many agreements made between the Malay Rulers and the British retained the indigenous sovereignty as those agreements were subjected to the old Malayan Constitution, the principle of Islam as the law of the land as well as contemporary local thinking. The above three local circumstances explained the principle of sovereignty, thus the position of Islam in the indigenous Malaya's legal framework. This article concludes that the accurate interpretation of Islam should be based on the al-Qur'an and al-Sunnah because the Malay Rulers have retained their position as caliph even after the British intervened in their internal state affairs.
Highlights
The interpretation of Islam by Salleh Abas, LP in the case of Che Omar Che Soh vs Public Persecutor that reads, "Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only" was based on a misdirected observation
The misdirected observation taken from the phrase, "In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word 'Islam' in the context of Article 3" was reversed by Ahmad Fairuz, CJ in the case of Lina Joy vs the Federal Islamic Religious Council & Ors when the majority decided on the following: Islam is not just a set of dogmas and rituals, but it is a complete way of life embracing all fields of human activities, private or public, legal laws, political, economic, social, cultural, moral or judicial
Even though the interpretation of Islam by Salleh Abas LP in the case of Che Omar Che Soh vs Public Prosecutor was reversed, it is critical to revisit his ground of Judgment since his lordship had interestingly argued the position of the Malay Rulers' sovereignty before arriving at the interpretation of Islam in the context of the Federal Constitution
Summary
The interpretation of Islam by Salleh Abas, LP in the case of Che Omar Che Soh vs Public Persecutor that reads, "Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce and inheritance only" was based on a misdirected observation. The misdirected observation taken from the phrase, "In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word 'Islam' in the context of Article 3" was reversed by Ahmad Fairuz, CJ in the case of Lina Joy vs the Federal Islamic Religious Council & Ors when the majority decided on the following: Islam is not just a set of dogmas and rituals, but it is a complete way of life embracing all fields of human activities, private or public, legal laws, political, economic, social, cultural, moral or judicial.
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