Historical legal perspective

By WAN AZHAR WAN AHMAD
Senior Fellow and Director,
Centre for shariah, Law and Political Science, IKIM

During the reign of various Muslim rulers, non-Muslims, too, have sought justice from the Syariah courts.

THE Supreme Court’s judgment in the case of Che Omar Che Soh v PP (1988 and which will be referred to from hence in this article as Che Omar) is considered a landmark case concerning the interpretation of the status of Islam as enshrined in Article 3 of the Constitution.

At the time, the Supreme Court was the highest court in the country’s judicial system.

A number of academics, politicians and lawyers have argued that this case laid to rest the question surrounding the law of the land, that is secular law. Any attempt to change this law is unconstitutional and therefore void.

Article 3(1) proclaims that “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”.

Some people interpret this Article to mean that Islam encompasses all aspects of human life, while others narrowly construe it to refer only to certain aspects.

Counsel for Che Omar sought to prove the first interpretation, arguing that since Islam does not provide any qisas or hudud punishment for the trafficking in dangerous drugs and firearms offences, and that the Constitution is the supreme law of the land; therefore a mandatory death sentence for those offences is against Islam, unconstitutional and void.

The apex court then had to decide on the possible meaning relative to the term Islam in Article 3. If the meaning is confined only to acts related to rituals and ceremonies, then the argument does not hold weight.

But if Islam is an all-embracing reality and constitutes a comprehensive system of life beyond the ritualistic or ceremonial aspects to include jurisprudence and moral standards, then the argument raised by counsel had wide implications in the sense that every law has to be tested according to that yardstick.

To make it clear, any legal provision that runs counter to the second interpretation, if deemed correct, must be considered unconstitutional and void. To put it in legal language, any law passed after Merdeka Day that is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.

In Che Omar, it was held that the term Islam in Article 3 meant such acts as relating to the ritual and ceremonial only.

The then Lord President Tun Salleh Abas, leading the five-member bench, observed that “if it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void.

“Far from making such [a] provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitu-tion.”

Not rejecting the fact that Islam is “a complete way of life covering all fields of human activities, private or public, legal, political, economic, social, cultural, moral or judicial,” Salleh Abas however explained that this was not the meaning intended by the framers of the Constitution.

The learned judge concluded that their real intention was this: Islamic law was to be understood in an isolated manner, confined just to the law of marriage, divorce and inheritance.

He put the responsibility of relegating the scope of Islam, i.e. Islamic law, on the British colonialists following their rule of the land.

I wish to disagree with the judgment.

There was no sufficient evidence given by the learned judge to show that was precisely the intention of the framers.

Assuming that these legal experts knew the history of the country centuries before the coming of the British, they would not have said that the application of Islamic law was limited to personal and family matters only.

In Ramah v Laton (1926), the Supreme Court, presided by two English judges, acknow-ledged that Islamic Law “is not foreign but local law, it is the law of the land”. That statement would not have been made if the learned judges were ignorant of the history of this part of the world.

The late Prof Ahmad Ibrahim argued for decades that Islamic law is the fundamental law of the country. English historian R.J. Wilkinson stated that there can be no doubt that Muslim law would have become the law of the then Malaya had not British law stepped in.

Another point of contention in the judgment of Che Omar was the term “secular law” in the court’s expression: “Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution”.

If one goes through all seven subsections of Article 162, one will discover that the actual term used is “existing law”, not “secular law”. In fact, the term “secular” is not mentioned in the Constitution. It does not appear anywhere in the document.

The Article states, for example, that “the existing law shall ... continue in force on and after Merdeka Day.” Now, what does “existing law” mean?

Islamic law was one of the existing laws practised before, during and after Independence. Historical documents indicate that Islamic law was substantively applied in this country’s legal system long before British occupation, and it was applied not just for ritual and ceremonial purposes.

The Terengganu Inscription dating back to the 13th century and the Undang-undang Melaka (Malacca Laws) in the 15th century, for example, had provisions concerning punishment for adultery, liquor consumption and theft.

This reflects that Islamic law had gained firm legal footing for centuries. The arguments presented by Ahmad Ibrahim in Ramah v Laton and the statement made by Wilkinson simply reaffirm this historical fact.

The general public is under the impression that Islamic law is strictly meant for Muslims. This is not the case in all situations because non-Muslims could seek justice from Syariah courts during the reign of various Muslim rulers.

If this has happened in history, it can still take place today and in the future.

Our esteemed Constitution, various other Acts of Parliament and state enactments contribute to the confusion by putting forth some legal obstacles concerning the application of Islamic law towards non-Muslims.

In reality, under certain circumstances, non-Muslims can and must be allowed to stand either as witnesses or even parties to certain litigations.

In this way, I believe, the misunderstanding and prejudices concerning the Syariah courts may be controlled and gradually reduced, if not eliminated.

- THE STAR
www.thestar.com.my