Historical School of JurisprudenceInterpreting or indulging in history
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.
Appeared
The Star, March 2009
