INSIGHTS: THE INTERPRETATION OF ISLAM WITHIN THE FRAMEWORK OF THE INDIGENOUS MALAYA
This article promotes Islam's interpretation within the legal framework of the indigenous Malayan based on its principle of sovereignty. At present, Islam is popularly defined by the Court's decision in Che Omar Che Soh vs Public Prosecutor, where the sovereignty of the 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 the Pangkor Treaty, 1874. This is a qualitative study applying the legal history design. The findings showed that the indigenous sovereignty sourced from the Islamic teachings had not been affected despite the introduction of doctrine of advice and various British policies throughout their intervention in Malaya. In fact, many agreements made between the Malay Rulers and the British retained the indigenous sovereignty as those agreements were subjected to the old Malayan 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.
Ahmad Ibrahim. Common law in Malaysia (1989) 1(1) KANUN 3-25
Allen, J. de, A. J. Stockwell and L. R. Wright (eds.) 1981. A Collection of Treaties and Other Documents Affecting the States of Malaysia. Vol. 2 London: Oceana Publications.
Andaya, Barbara W. & Leonard Y. Andaya. 1984. A History of Malaysia. Hong Kong: Macmillan Press.
Arieff Salleh Rosman & Yahaya Jusoh. 2015. Tafsir Maudhu’iy; Politik dan Urus Tadbir. Kuala Lumpur: Dewan Bahasa dan Pustaka.
Curzon, L.B. 2007. Dictionary of Law. Ed. ke-6. Kuala Lumpur: International Law Book Services.
Harding, Andrew. 1996. Law, Government and the Constitution in Malaysia. Kuala Lumpur: Malayan Law Journal Sdn. Bhd.
Hashim Yeop A. Sani, Datuk 1980. Perlembagaan Kita. Kuala Lumpur: Malaysian Law Publisher.
Liaw Yock Fang (Ketua Editor Hassan Ahmad). 2003. Karya Agung: Undang-Undang Melaka. Kuala Lumpur: Yayasan Karyawan.
Lina Joy vs The Federal Territory Islamic Religious Council & et.al. JH (1428), Vol. 24 Sect. 1)
Lopez, Carolina. 2001. The British Presence in the Malay World: A Meeting of Civilisational Traditions. Sari 19 (2001): 3-33.
MB Hooker, Islamic Law in South-east Asia, 1984.
Meor Atiqurrahman Ishak & Ors vs Fatimah Sihi & et.al.  4MLJ 605
Mohamed Anwar Omardin, Wan Ahmad Fauzi Wan Husain, Mat Zin Mat Kib & Junaidi Abu Bakar. Peranan UMNO Menegakkan Islam Dalam Perlembagaan Persekutuan: Satu Kajian Secara Kronologikal. Akademika Vol 87, No 1 (2017).
Mohammed al-Baianonie, Imam. In his Friday speech at Islamic Centre of Raleigh, North California on December, 27, 1996. www.Islam1.org/khutub/defn
Mohd Salleh Abas, Tan Sri Dato' Haji. 1984. Selected Article & Speeches on Constitution, Law & Judiciary. Kuala Lumpur: Malaysia Law Publisher Sdn. Bhd.
Muhammad Yusof Hashim. 1992. The Malay Sultanate of Malacca. Kuala Lumpur: Dewan Bahasa dan Pustaka.
Philpott, D. Sovereignty. Stanford Encyclopedia of Philosophy. https://plato.stanford. edu/entries/sovereignty.
Ramah vs Laton  6FMSLR 128
Re Yap Kwan Seng's Will  4FMSLR 313
Ridzuan Awang. 1994. Undang-Undang Tanah Islam; Pendekatan Perbandingan. Selangor: Percetakan Dewan Bahasa dan Pustaka.
S Abul A'ala Maududi, The Islamic Law and Consttution, March 1980, (7th. Edition).
Stockwell, A. J. 1979. British Policy and Malay Politics during the Malayan Union Experiment, 1942–1948. Kuala Lumpur: Malaysian Branch of the Royal Asiatic Society.
W.G. Shellaber. 1977 (Edisi Ketiga). Sejarah Melayu. Selangor: Penerbit Fajar Bakti Sdn. Bhd.
Wan Ahmad Fauzi bin Wan Husain, YB Datuk. 2013. Rekonfigurasi Epistimologi Jati Diri Melayu: Manifestasinya Ke Atas Silat Seni Gayong. Latihan Ilmiah Sarjana Falsafah Jabatan Sains Sosial Dan Kemasyarakatan sesi 2012/13. Universiti Kebangsaan Malaysia.
Wan Ahmad Fauzi Wan Husain. 2017. Konsep Kedaulatan Watan Raja-Raja Melayu Dalam Perlembagaan Persekutuan Malaysia Menurut Sejarah Perundangan. Tesis Ph.D, Universiti Kebangsaan Malaysia, Bangi.
Wan Ahmad Fauzi Wan Husain. 2018. Kedaulatan Raja-Raja Melayu: Jurisprudens, Governan & Prinsip Perlembagaan Persekutuan. Selangor: Abad Sinergi Sdn. Bhd.
Wan Ahmad Fauzi Wan Husain. 2020. The Conceptual Framework for Building The World Class Good Governance Ethics. Journal of Governance and Integrity, UMP. Vol. 4 Issue 2, December 2020.
Yusuf al-Qardhawi. 2009. Fiqh Kenegaraan. Kuala Lumpur: Blue-T Publication Sdn. Bhd.
i. Indeed it was described and mentioned and indefinitely established that this Terengganu Government was the Islamiyyah Melayuwiyyah Government which was said to be the religion of the State and the Government, so no other religion could at all be made or called the religion of the State even though there were other races and religions allowed to remain peacefully in the State and territory of Terengganu.
ii. The Malay States of Pahang, Perak, Kedah and Kelantan adopted the written laws developed from the Malacca Code in line with the reinforcement of Islamic laws until introducing the British laws in the court when the British advisory system was enforced.
iii. For example, Clause 5 of the State Constitution of Negeri Sembilan (Part One) 1959 provided; "This State Religion is Islam as embraced and practised in this state: but other religions can be practised peacefully anywhere in the country by those who embraced them."
iv. As enshrined in each of the State Constitution, as a requirement (1) Clause 4 of the Terengganu State Government Laws(Part One):
The Religious Leader of this State is His Royal Highness and The Council of Islamic Religion and Malay Customs, which in the English language is called the "Council of Religion and Malay Customs" instituted under the existing State Laws and shall continue to assist and advise His Royal Highness according to those laws.
v. Salleh Abas LP stated:
Before the British came to Malaya, which was then known as Malaya, the sultans in each of their respective states were the heads not only of the religion of Islam but also the political leaders in their states, which themselves Muslims, their subjects were also Muslims, and the law applicable in the states was Muslim law. Under such, the sultan was regarded as God's vicegerent (representative) on earth. He was entrusted with the power to run the country in accordance with the law ordained by Islam, i.e. Islamic law and to see that the law was enforced.
vi. The Colonial Secretary to Residents, 17 May 1878, "The Residents have been placed in the native states as advisers, not as rulers. If they upon themselves to disregard this principle, they will most assuredly be held responsible if trouble springs out of their neglect of it."