Wednesday, March 25, 2009

Historical Legal Perspective

The Supreme Court's (SC) judgement in the case of Che Omar Che Soh v. PP (1988 - later referred to as Che Omar) is considered a landmark case concerning the interpretation of the status of Islam as enshrined in Article 3 of the Constitution of Malaysia. At the time, the SC was the highest court in the country's judicial system.

Certain figures from among academics, politicians and the legal fraternity 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 practiced in peace and harmony in any part of the Federation". Some people interpret this Article wide enough to mean that ‘Islam' encompasses all aspects of human life, while some others narrowly construe it to refer only to certain aspects.

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

The apex court then had to decide on the possible meaning relative to the term ‘Islam' in the said Article 3. If the meaning is confined only to acts related to rituals and ceremonies, then the argument does not hold any 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 the 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 abovementioned second interpretation, if deemed correct, such a provision must be considered unconstitutional and void. To put it in legal language, any law passed after Merdeka Day which 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. Salleh Abas L.P, 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 Constitution."

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 the real intention of these framers was this: Islamic law was to be understood in an isolated manner, confined just to the law of marriage, divorce and inheritance only. He put the responsibility of relegating the scope of Islam, i.e. Islamic law to the British colonialists following their rule of the land.

I wish to disagree with his judgment. There was no sufficient evidence given by the learned judge to show that was truly and precisely the intention of those framers. Assuming that these legal experts knew the history of the country centuries prior to the coming of the British, they would not have said that the application of Islamic law was limited to personal and family matters only.

To collaborate the above, in the case of Ramah v. Laton (1926), the Court of Appeal, presided by two English judges, acknowledged and held 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, a well known legal figure, argued for decades that Islamic law is the fundamental law of the country. R.J. Wilkinson, an English historian of this Malay archipelago stated that there can be no doubt that Muslim law would have become the law of Malaya had not British law stepped in to check it.

Another point of contention in the judgment of Che Omar was the term ‘secular law' in the Court's expression that "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 even once in the Constitution. It does not appear anywhere in the document. The learned Salleh Abas, therefore, was obviously mistaken.

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

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

The Terengganu Inscription dating back to the 13th century, and the Undang-undang Melaka in the 15th century, for example, provided provisions concerning punishments for the crimes of adultery, liquor consumption and theft.

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

It is amazing to learn that certain segments of our society are utterly against the idea of recognizing and acknowledging Islamic law as the law of the land and of general applicability to all. Some have simply ignored the legal effects and influence of the judgement in the case of Ramah v. Laton, preferring to just highlight that of Che Omar.

The general public, Muslims and non-Muslims alike, are under the jaundiced perception that Islamic law is strictly meant for the Muslims. This is not the case in all situations as non-Muslims could also seek justice from the Syariah courts during the reign of various Muslim rulers. In the past, the non-Muslims were afforded the justice they sought on many occasions. If this has happened in history, it can still take place today as well as in the future.

Our esteemed Constitution, various other Acts of Parliament and state enactments, contribute to the confusion by categorically putting forth some legal restrictions 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 Islam in general, and Islamic law and the Syariah courts in particular, may be controlled and gradually reduced, if not eliminated.

By Dr. Wan Azhar bin Wan Ahmad
(Fellow Kanan)
The Star, 17 March 2009

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