At 6 in the morning, I am still working on the case review which regards to case of Che Omar Bin Che Soh v Public Prosecutor  2 MLJ 55. In this case, the matters arose on whether a mandatory death penalty for offence of drug trafficking and Firearms (Increased Penalties) Act is against injunctions of Islam and therefore void. Thus, it appears as no reliance can be placed on wording of Article 3 of the Federal Constitution under Article 3, 4 and 162 of the Federal Constitution.
In addition, according to constitutional matters involved in this case, the provision that Islam is the religion of the Federation is significant to be associated merely with the ritual and ceremony activities only. The death penalty for the offence of drug trafficking or any other offence will be void as being unconstitutional, due to not much reliance on wording of Article 3 to provide submission over such offences.
I am literally fond of the judgment made by Lord President Salleh Abas. First and foremost, argued matters pertaining to the term of “Islam” or “Islam religion” in Article 3 of the Federal Constitution which to the extend, it means any acts that related to rituals and ceremonies. As we all know, Islam itself is considered as the religion of practicing or embracing concept which involves external and internal life of Muslims, not merely matters pertaining to ceremonies and rituals. In a simplest word, Islam can be categorized as a religion which is comprehensive system of life. Every cornerstone of law that implemented in some particular countries, such as Malaysia, ought to also have an implication or association according to this yard-stick. Since Islam is the religion of the Federation as stated in Article 3 (1) of the Federal Constitution and further Article 4(1) is a proof that Federal Constitution is the supreme law of the land, where if any other law which is inconsistent with the Constitution, to the extend of inconsistency, it would be void.
In the matter of fact, it is beyond a shadow of a doubt by saying that Islam is not a mere collection of rituals and ceremonies, hitherto it is the religion which consists the whole daily life of Muslims as it covers almost all fields of human activities, legal, political, economic, social, cultural, moral or judicial. The preliminary guidance in Islam is Al-Quran and Sunnah, where every Muslim must follow these two divine sources.
The court further held that during the period of British intervention in Malay states, whether direct or indirect system and rule established through the secular institutions, Islamic law was rendered isolated in a narrow confinement of the of marriage, divorce and inheritance only. In this context, it does involve the concept of sovereignty in Malaysia, where before British came to Malaya (Tanah Melayu), sultans are the heads of religion of Islam as well as the political leaders in their states, not simply because they are Muslims themselves, but with regards to the law applicable during this time was Muslim law. The sultan was also regarded as God’s representative on earth. He was given such a vast power to govern the country in accordance with the law designed by Islam.
However, after the British colonial came to Malaya, the system of law had been separated into two, public and private aspects. The colonial regime had made the Anglo Treaties which cause the restriction on the part of the Sultans’ powers. Sultans were only involved in laws relating to family and inheritance and to such an extent that Islam in its public aspects had become nothing more than a mere appendix to the ruler’s sovereignty.
Furthermore, the court also held that not much reliance can be placed in Article 3 per se to withstand the submission that death penalty for the offence of drug trafficking or other offences related will be annulled as being unconstitutional. Such a matter is not crucial to discuss or argue because the death penalty is not contrary to Islam perception. Islam is the religion of Federation as provided under Article 3(1) of the Federal Constitution and Islamic law is a part of the law imposed in Malaysia, the religion of Islam is specifically being main religion as all-embracing concept in the Constitution. Any laws which imposed before the Merdeka day or also known as the existing law, as long as it is not contrary to Constitution, the law can still be imposed. Submitted that, due to Syariah law is the existing law, thus, any law of general application in this country must conform to Syariah law.