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Saturday, June 3, 2017

THE REAL INTERPRETATION OF CHE SOH CHE OMAR’S JUDGEMENT

by Ahmad Faiz Faiza 
DAP has brings up Che Soh Che Omar’s case once again to prove we are a secular state, i.e. separation between state and church. These decades of hogwash by DAP ends now.
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DEFINITION OF ‘SECULAR’
Tun Salleh Abas himself in that judgement gave the real interpretation of what is ‘secular law’. In the last paragraph of his judgement he said;
“However, we have to set aside our personal feelings because the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”
See? It means a morality or religious law does not enjoy the status of law, unless it goes through the process to be accepted or recognised as a law. How does that happened? Accepted by the law, means goes through the legal procedures as stated in the Federal or State Constitution, being passed in Parliament or State Legislature and assented by the Agong or Sultans so forth. Once it passed through these ‘secular’ or ‘man made’ procedures, only then it becomes law, or have the status of law.
This is what the judgement really meant when it comes to the definition of secular laws. Hell, the judge clearly gave the definition in his judgement! In the judgement he also clearly state this:
“By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat.”
But DAP and some in the legal fraternity have been lying and bullshitting the public regarding this case for decades. Turning it into so called ‘proof’ that we are a secular country. But in reality we are more of a hybrid, whereby religious laws are recognised and enjoy the status of law, like Syariah Laws, as long as it goes through these ‘man made’ procedures stated under the Federal or State Constitution.
Thus my argument the term ‘secular’ as used by Tunku, Tun Razak etc, means ‘man made system as laid down under the Federal Constitution’ rather than ‘separation between state and church’. If the term ‘secular’ means ‘separation between state and church’, then the Federal Constitution will have so many contradictions in itself. Bear in mind the term ‘secular’ doesn’t exist even once in the Federal Constitution.
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DEFINITION OF ‘ISLAM’ IN ARTICLE 3
As to the definition of Islam in article 3, some of these desperados always quote this sentence in the judgement ;
“.. the religion of Islam in the context means only such acts as relate to rituals and ceremonies… “
But lo and behold, the full sentence was actually a question rather than a statement;
” 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 the religion of Islam in the context means only such acts as relate 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 normally understood, which consists not only the ritualistic aspect but also a comprehensive system of life, including its jurisprudence and moral standard, then the submission has a great implication in that every law has to be tested according to this yard-stick.”
There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, 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 Quran and the last messenger is Mohammad S.A.W. whose conduct and utterances are revered. (See S. Abdul A’la Maududi, The Islamic Law and Constitution, 7th Ed., March 1980.)
The question here is this: Was this the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century. “
Such malicious editing of the judgement should not be condone. Shame on these legal practitioners who does this!
Anyhow, what was the answer to such a question? Here is what the judge concluded;
”  Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat. Although theoretically because the sovereignty of the ruler was absolute in the sense that he could do what he likes, and govern according to what he thought fit, the Anglo/Malay Treaties restricted this power. The effect of the restriction made it possible for the colonial regime under the guise of “advice” to rule the country as it saw fit and rendered the position of the ruler one of continuous process of diminution. For example, the establishment of the Federated Malay States in 1895, with the subsequent establishment of the Council of States and other constitutional developments, further resulted in the weakening of the ruler’s plenary power to such. Because of this, only laws relating to family and inheritance were left to be administered and even this was not considered by the court to have territorial application binding all persons irrespective of religion and race living in the state. The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only. (See M.B. Hooker,Islamic Law in South-east Asia, 1984.)
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. “
So Islam in article 3 as it is now, is isolated to certain Syariah laws primarily as listed in the State List of the Federal Constitution. Please do note that the narrow confinement of Syariah only in regards to the law of marriage, divorce and inheritance was during the colonial period. Islam and Syariah Laws now are define as per the Federal Constitution.
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CONCLUSION
In short the most important ratio in Che Soh Che Omar is the fact that even a religious law can have the status of law, as long as it goes through such procedures laid out under the Federal Constitution or State Constitution. If it doesn’t go through such procedures, such as in the case itself, then it is not a law. Thus the plaintiff Che Soh lost the case.
Thus with this in mind, the judgement also do not declare our country as a secular state ( separation between the state and the church), as it is widely misunderstood.
In fact it reaffirms the uniqueness of our Federal Constitution, that tries to find a thin line balancing the rights of everyone, from Muslim v non-Muslim, State laws v Federal laws and Sultans power v Executives.
It is sad however to still see some people trying to disrupt such delicate balance for their greed for power.
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Ps: Citation for Che Soh Che Omar (1988) 2 MLJ 55.

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