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The Interpretation of Islam Within the Legal Framework

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The Interpretation of Islam Within the Legal Framework JOURNAL OF GOVENANCE AND INTEGRITY (JGI) ISSN: 2600-7479 e-ISSN: 2600-786X VOL. 4, ISSUE 2, 64 – 72 DOI: https://doi.org/10.15282/jgi.4.2.2021.6545 ORIGINAL ARTICLE INSIGHT: THE INTERPRETATION OF ISLAM WITHIN THE LEGAL FRAMEWORK OF THE INDIGENOUS MALAYA Wan Ahmad Fauzi bin Wan Husain1,2 1Faculty of Industrial Management, Universiti Malaysia Pahang 2Director, The Institute of Civilization and Strategic Research ARTICLE HISTORY ABSTRACT – This article promotes Islam's interpretation within the legal framework of the Received: 20-11-2020 indigenous Malayan based on its principle of sovereignty. At present, Islam is popularly defined by Revised: 13-12-2020 the Court's decision in Che Omar Che Soh vs Public Prosecutor, where the sovereignty of the Accepted: 8-1-2021 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 KEYWORDS the Pangkor Treaty, 1874. This is a qualitative study applying the legal history design. The findings Old Malayan Constitution, showed that the indigenous sovereignty sourced from the Islamic teachings had not been affected sovereignty, despite the introduction of doctrine of advice and various British policies throughout their law of the land, Article 3, intervention in Malaya. In fact, many agreements made between the Malay Rulers and the British The World Class Good retained the indigenous sovereignty as those agreements were subjected to the old Malayan Governance Ethics Constitution, the principle of Islam as the law of the land as well as the 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 a caliph even after the British intervened in their internal state affairs. INTRODUCTION 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 also a complete way of life embracing all fields of human activities, private or public, legal laws, political, economic, social, cultural, moral or judicial. And if examined thoroughly, it was obvious Articles 11 (1), 74 (2) and item 1 in list 2 in Schedule 9 PP that Islam encompasses, among others, the Islamic laws. 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. Another critical aspect of the said decision is that Islam's interpretation would determine the validity of laws passed by the Parliament. In the above case, there were two interpretations of Islam being considered, namely: The first point to consider here is the meaning which could be given to the expression 'Islam' or 'Islamic religion' in Article 3 of the Constitution. If Islam's religion in the context means only such acts as related to rituals and ceremonies, the argument has no basis whatsoever. On the other hand, if the religion of Islam or Islam itself is an all-embracing concept, as is typically understood, which consists not only the ritualistic aspects but also a comprehensive system of life, including its jurisprudence and moral standard, then the submission has a significant implication in that every law has to be tested accordingly to this yardstick. There can be no doubt that Islam is not just about a mere collection of dogmas and rituals but a whole way of life covering all fields of human activities, whether they be private or public, legal, political, economic, social, and cultural, moral or judicial. This way of ordering the life with all the precepts and moral standards is based on divine guidance through His prophets, and the last of such guidance is the al Quran, and the last messenger is Mohammad SAW whose conduct and utterance are revered (see S Abul A'ala Maududi, The Islamic Law and Constitution, March 1980, seventh. Edition). *CORRESPONDING AUTHOR | Wan Ahmad Fauzi bin Wan Husain | [email protected] 64 © The Authors 2019. Published by Penerbit UMP. This is an open access article under the CC BY license. Wan Husain │ Journal of Governance and Integrity│ Vol. 4, Issue 2 (2021) Objective Hence, this article's main objective is to explain the interpretation of Islam within the legal framework of the indigenous Malaya. Such interpretation is critical to argue the observation made by Salleh Abas, LP in the case of Che Omar Che Soh vs Public Prosecutor while analysing the effects of the Pangkor Treaty, 1874 and Article 162 of the Federal Constitution on the existing law which includes in its definition the states constitution before the Independence Day (Hari Merdeka). Subsequently, such interpretation denotes Islam's true definition in Article 3 of the Federal Constitution, thus clarifying the principle of the highest governance in the present Malaysian legal framework. LITERATURE REVIEW The Supreme Court's decision in Che Omar Che Soh vs Public Prosecutor became the subject of review and this article's argument centred on the critical issues and events discussed by Salleh Abas, LP. More information can be found in the sections after methodology. METHODOLOGY This article uses local jurisprudence (Jurisprudens Watan) that promotes legal history as a research design to define Islam's interpretation. Relevant data and evidence were collected from the Old Malayan Constitution and the reliable customary and legal sources in Malaya. The primary issues are critically analysed using legal doctrines based on a qualitative study. This study focuses on the Malay Rulers' position viewed from the three legal perspectives; they are the Old Malayan Constitution, the law of the land and contemporary local thinking. These three sources are most valid, relevant and credible evidence to determine the principle of sovereignty and the interpretation of Islam within the framework of the indigenous Malaya. THE INDIGENOUS SOVEREIGNTY Generally, sovereignty refers to the concept of supreme authority that determines the legal principles in a political entity and legislation, i.e. the concept of the supreme power which could not be stripped by any internal or external power; to carry out political decisions, to enact and enforce laws based on the characteristics of its sovereignty within its territorial jurisdiction (Wan Ahmad Fauzi: 2017). Sovereignty by the Western and Islamic thoughts was a concept that had implications on the political system and legal principles of a government or state (Curzon, Dictionary of Law: 2007; Wan Ahmad Fauzi: 2017). The distinction of sovereignty between Western thought and Islam is from the source of sovereignty. The Western thinking placed sovereignty on the people or certain entities such as parliament that required the sovereign power to be absolute, free and independent when making decisions. On the other hand, Islam places absolute sovereignty on Allah SWT, while the government or rulers is merely a trustee, far from absolute. From the Islamic perspective, free and independent means the freedom to execute Allah SWT's command and the teachings of Prophet Muhammad (PBUH). Hence, it must be understood that the sovereign government maintains its independence and is not colonised. As such, the sovereign ruler and his government are not under any form of adverse subordination or control. The colonisation would only occur if a government's sovereignty, including all its characteristics, were relinquished either due to war or was replaced by a different entity. However, according to the Islamic perspective, Allah SWT's sovereignty could only be suspended when people are ignoring religious sanctions. This is because the responsibility to execute the command of Allah SWT is infinite and could not be eliminated by anyone. If it was suspended, then it becomes the obligation of the Muslims to restore it. As further explained by Wan Ahmad Fauzi (2018), the Malayan sovereignty referred to the framework of Islamic sovereignty originating from the establishment of the Malayan Malay Sultanate that occurred earlier or later therefrom. Thus, the Malayan indigenous sovereignty is a supreme authority concept derived from the Islamic Shari'a (Islamic laws) based on faith that asserted the highest legislation is Allah SWT's absolute right as described in the al-Qur'an and al- Sunnah. Based on that conceptual framework, then: 1. Human leadership, including the Malay Rulers, is positioned as Khalifah (Caliph), or the sovereign trustee to the almighty Allah SWT. 2. The sovereignty principle outlines the political system's general policies and the legal principles (the teachings of Islam) that are mandatory guidance to man throughout all time and places. 3. The man could legislate laws and policies, but such legal orders must be in line with Islam's teachings. The evidence that supports indigenous sovereignty was sourced from the Islamic teachings could be based on the following three local circumstances: 65 journal.ump.edu.my/jgi ◄ Wan Husain │ Journal of Governance and Integrity│ Vol.
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