INSIGHTS: THE INTERPRETATION OF ISLAM WITHIN THE FRAMEWORK OF THE INDIGENOUS MALAYA

  • Datuk Assoc. Prof. Dr. Wan Ahmad Fauzi Wan Husain Faculty of Industrial Management, Universiti Malaysia Pahang
Keywords: Old Malayan constitution, Sovereignty, Law of the land, Article 3, The world class good governance ethics

Abstract

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.

Author Biography

Datuk Assoc. Prof. Dr. Wan Ahmad Fauzi Wan Husain, Faculty of Industrial Management, Universiti Malaysia Pahang

 

Wan Ahmad Fauzi was admitted as an advocate & solicitor at the High Court of Malaya, Kuala Lumpur on 23

September 1996. He is also qualified as a Syar'ie counsel for the State of Terengganu and the Federal Territories. In 2012, he was listed in "The Book of Malaysia Leaders: Political, Government & Corporate. He is currently the Director of The Institute of Civilization and Strategic Research, Malaysia. He once held a few prominent posts such as the Secretary of Terengganu Council of The Royal Court. At present, he actively involves in NGOs. He obtained his PhD in constitutional law together with the certificates of Graduate on Time and Distinction PhD Thesis from the Law Faculty of The National University of Malaysia. Wan Ahmad Fauzi is the founder of Watan Jurisprudence. In recognizing his great contribution to our country, he was conferred a few Royal Awards such as PJN., DPNS., SMT.

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NOTES

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."

Published
2021-01-08
How to Cite
Wan Husain, D. A. P. D. W. A. F. (2021). INSIGHTS: THE INTERPRETATION OF ISLAM WITHIN THE FRAMEWORK OF THE INDIGENOUS MALAYA. Journal of Governance and Integrity, 4(2), 1-9. https://doi.org/10.15282/jgi.4.2.2021.5794
Section
JGI Vol. 4, Issue 2, July 2021