In 1988, the Supreme Court of Malaysia heard the case of Che Omar bin Che Soh v. Public Prosecutor.1 The case arose as an appeal of the mandatory death sentences issued to three men sentenced for either drug or firearms crimes under the Dangerous Drugs Act 1952 or the Firearms (Increased Penalties) Act 1971, respectively. In their appeal, the men argued that their death sentences were unconstitutional and therefore void under Articles 3 and 4 of the Malaysian Constitution.
Article 3 establishes Islam as â€œthe religion of the Federationâ€ and Article 4 provides that the Constitution is the supreme law of the land that may not be contravened by other laws. Put together, the appellants argued, the Constitution mandates that all laws must be in accord with Islamic law. A mandatory death sentence for their drug trafficking and firearms offenses, the men contended, would be against the injunctions of Islamic law because the crimes in question were neither offenses for which á¸¥udÅ«d punishments were justified nor crimes for which the rule of qiá¹£Äá¹£ is permitted. The Supreme Court rejected the appellantâ€™s argument, upholding their sentences.
Though not defined in the opinion, for classical jurists, á¸¥udÅ«d crimes are those noted in the QurÊ¾Än or a á¸¥adÄ«th for which there are divinely ordained penalties, which often include death.2 Among these crimes are illicit sexual relations, apostasy, and highway robbery. There are strict evidentiary rules surrounding the meting out of á¸¥udÅ«d penalties, which makes their imposition impossible in most cases.3 Intentional homicide is governed by the rule of qiá¹£Äá¹£. Under this rule, the offender must be executed, pay blood money, or be pardoned by the victimâ€™s relatives.4 Those crimes to which neither á¸¥udÅ«d penalties nor the rule of qiá¹£Äá¹£ apply are punishable by taÊ¿zÄ«r: punishment imposed at the discretion of a judge.5
Given the specificity of crimes falling under the á¸¥udÅ«d and qiá¹£Äá¹£ categories and the importance of discretion to the imposition of taÊ¿zÄ«r, the appellants argued that the mandatory death sentences they received were illegal under Islamic law and thus void in Malaysia.
To reach its conclusion upholding the appellantsâ€™ sentences, the Court endeavored to figure out what the framers of Malaysiaâ€™s Constitution intend by the word â€œIslamâ€ as written in Article 3. Properly understood, the Court said, Islam is not simply a â€œcollection of dogmas and ritualsâ€ but rather â€œa complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial.â€6
According to the Court, however, the framers of the Constitution could not have intended this expansive definition when drafting Article 3.7 This is because the Constitution was framed following years of British colonial influence that had given Islam a restricted meaning in Malaysia. During the colonial era, sovereignty had come to be viewed not as resting solely with God, but with earthly rulers as well. All laws within a territory thus needed the secular approval of the sovereign to take effect. Even Islamic Law â€œhad to receive this validity through a secular fiat.”8
The framers of the Constitution must have understood â€œIslamâ€ as seen through the colonial lens. â€œ[H]ad it 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,â€9 the Court wrote. Far from this, the Court noted, Article 162 of the Constitution â€œpurposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.â€10
The significance of the Courtâ€™s view of Article 3 can hardly be understated. With its opinion in Che Omar the Court established Islamâ€™s place within the framework of the Constitution as essentially symbolic. This position distinguishes Malaysia from many other Muslim-majority nations that are recognized as having so-called â€œrepugnancy clausesâ€ in their Constitutions.11 These clauses mandate that all laws adopted within the states to which they apply must conform to some conception of Islamic law.12
Repugnancy clauses serve as a constitutional restraint on the governmentâ€™s otherwise plenary power to make and enforce laws. These provisions are often viewed by Islamists as a bulwark against further secularization of the state.13 Had Che Omar been decided differently, it is probable that Malaysian laws tending toward secularization proposed after the decision was handed down would not have been passed nor survived judicial scrutiny.
Had the Court ruled otherwise, its ruling would have presumably had retroactive effect as well and thus all of Malaysiaâ€™s laws in existence in 1988 would have been open to review against the mandates of Islamic law. This would have undoubtedly resulted in the overturning of many of Malaysiaâ€™s laws and the remaking of the countryâ€™s legal landscape as something far removed from its common law past. Malaysia is often described as among the most tolerant nations in the Muslim world.14 It is possible that the Supreme Courtâ€™s refusal to define Article 3 as a repugnancy clause has aided Malaysiaâ€™s reputation for relative liberality.
1  1 SCR 73.
2 Christian Lange, Capital Punishment, Encyclopaedia of Islam Online (2007), http://dx.doi.org/10.1163/1573- 3912_ei3_COM_25344.
6  1 SCR at 76.
7 Id. at 77.
11 See Tamir Moustafa, Religion of the State, Source Law, and Repugnancy Clause Provisions among Muslim- Majority Countries, in CONSTITUTING RELIGION: ISLAM, LIBERAL RIGHTS, AND THE MALAYSIAN STATE 159â€“63 (2018) (listing Muslim-majority nations with constitutional repugnancy clauses).
12 See Haider Ala Hamoudi, Repugnancy in the Arab World, 48 WILLAMETTE L. R. 427, 427 (2012).
13 Id. at 430.
14 See Nathan Thrall, The Muslim Worldâ€™s Most Tolerant Nation, Slate, (Sept. 3, 2009), https://slate.com/news-and- politics/2009/09/the-muslim-world-s-most-tolerant-nation.html; see generally Ibrahim Abubakar, The Religious Tolerance in Malaysia: An Exposition, 7(1) ADVANCES IN NAT. & APPLIED SCI. 90 (2013) (providing an in-depth analysis of the state of religious toleration in Malaysia).