05 October 2010

FIRST PLACE: Can Non-Muslims be Shar'ie Lawyer?

An article on:
Can Non-Muslims be Shar'ie Lawyer?
By Nadra Fatima binti Mannan, 1016122
In the era of modernization throughout the world in the race with a pace of ups and downs of globalization, there are many revolution and modification from a game of football, technology and even jurisprudence that have puzzled and systemized us in many years. Yet the conflict still exist which indirectly proportional to the rate of globalization as each day is triggered with a problem to be solved. Even Shariah law is not excluded from this progression as recently a case in Malaysia of non-Muslim Indian women challenged ruling that only Muslim lawyers are allowed to practice at Shariah Court which has make us ponder as could it be possible for such resolution towards the new reformation of Shariah law?

From the eyes and minds of lay persons might responded negative to this case without revising the historical formulations of Shariah law and depth research about this case. Moreover, this is the first test case in Kuala Lumpur of a non-Muslim lawyer being given leave to challenge the ruling that only Muslim lawyers are allowed to practice at the Shariah court. On the contrary to that thought, I strongly believe it is possible for non-Muslims to be Shar’ie lawyer but yet must according to guidelines and procedure of Shariah law.
Before I justify in affirming my statement on this particular matter, it is important to seek clarification first by finding out with general questions such as:
· Who is classified as non-Muslim in perspective of Islam?
· How is the implementation of Shariah law in Malaysia? And also;
· What is the role of a Shar’ie lawyer and its criteria?
Non-Muslim can be simply classified as the unbeliever of Islam or someone whose religion is other than Islam like Christian, Hindu, Buddha, Jews etc. There are many verses in Qur’an pertaining on unbelievers of Islam and one of examples is:
56 We only send the messengers to give Glad Tidings and to give warnings: but the Unbelievers dispute with vain argument, in order therewith to weaken the truth, and they treat My Signs as a jest, as also the fact they are warned! 57 And who does more wrong than one is reminded of the Signs of his Lord, but turns away from them, forgetting the (deeds) which his hands have sent forth?”
(Surah Al-Kahf: 18, 56-57)
Thus, it is a doubtful decision to allow non-Muslim to be Shar’ie lawyer when it is clearly said in the Qur’an that they cannot be trusted and have plotted a plan against Muslim or a scheme of ‘if you can beat 'em, join 'em’ which all the Muslim must cautious of it. However, according to Dr. Said Ramadan expressed a different view that Islam considers non-Muslims under two categories:
1) Those who settle within the territorial limits of the Islamic State, and whose status is to be determined by a kind of socio-political contract which is called aqh al-dhimmah. This literally means “a contract the fulfillment of which is a pledge upon the conscience of the community.” Once this contract is concluded, the contractees become basically entitled to equal and reciprocal rights and duties. This, in our opinion, grants non-Muslim citizens a status that corresponds with the modern conception of nationality. In other words, they are full subjects of the Islamic State.
2) Those who enter Islamic State for a limited period, and whose status is subject to the regulations and conditions upon which the permission of sojourn is granted. Neither in the Qur’an nor in the Sunnah is there any text against the granting of such permission. On the contrary, there are precedents of non-Muslim foreigners visiting Madinah in the Prophet himself. Even with regard to subjects of a belligerent state, the principles of Islam ordain their full protection once an a-posteriori permission of sojourn has been granted and the bona fides of the visitors has been established. In the early Islamic State, with its primitive state of affairs, the permission of sojourn could even be given by individual citizens and thereby became binding upon the State; this, however, was later developed by Muslim jurists. Sojourners were termed by the Prophet “holders of a covenant of protection,” and they were granted, as a rule, the right to live according their religious code.
In other means, Shariah law is applied to every Homo sapiens including the non-Muslims with their rights and freedom of their religion within Islamic State. Nevertheless, this matter has lead to the other question concerning ways of implementation of Shariah law in Malaysia. Indeed referring to Article 3 of the Federal Constitution provides that Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation and also with an emphasize in article 11 provides every person has the right to profess and practice his religion and, subject to clause (4), to propagate it. However, Article 4 declared the Federal Constitution is the Supreme law of the Federation and Article 160 does not include Islamic law in its definition of law which shown Malaysia is not an Islamic State, but practicing Islamic law (with limitation on certain areas and jurisdiction as stated the Ninth Schedule, List II – State List of the Federal Constitution). Generally, the application of Islamic law has been limited to:
a) Muslims; and
b) Three areas: family law, inheritance and some matrimonial and ta’azir offence.
Therefore, it can be seen as opportunities to expand Shariah law throughout non-Muslims as can be indicated their acceptance on Shariah law like Victoria Jayaseele Martin who is so hesitated to proclaim her rights to be a Shar’ie lawyer by referring Article 5 (Liberty of the person), 8 (Equality) and 10 (Freedom of speech, assembly and association) of Federal Constitution. Probably this is the time to relinquish the minds of non-Muslims from unfair discrimination and injustice in Islamic law. This is due to most of the Malay customs are coherent to Islamic law and doctrine causes non-Malays reluctant to accept it as they also wanted to be able inherited their diverse cultures and custom. Indirectly, the Muslims can propagate the belief of Islam which does not contravene the Article 11. Besides that, it might be a catalyst for process of Islamization in Malaysia gradually. Recall from the history of trial Caliph Ali, as known as Amirul Mukminin (Commander of the Faithful) during that time with a Jew regarding possession of an armour which is relevant for this reference;
The Caliph lost his armour and it was seen in a shop of a Jew as his selling item. Thus, Caliph Ali claimed that it was his armour that was dropped accidentally from his camel at that night, but the Jew reluctant to confess and emphasize it was his armour. Caliph Ali immediately brings their dispute for judgment from a Muslim judge, Qadhi Syuraih Ibn Harith Al-Khindi r.a. (deceased on 78H).
Qadhi Syuraih
What is your story?
Caliph Ali
I found my armour that dropped the night that was in the selling items of this man.
Qadhi Syuraih
How about you, O man?
Jew man
It is in my belongings and possessions, and I do not accuse Ali lying.
Qadhi Syuraih
O Ali, I do not have doubt on your honesty, but it is a must for you to have two witnesses. Do you have evidence that it is yours?
Caliph Ali
Yes, my both son, Hassan and Hussin is as my witnesses for that armour is mine.
Qadhi Syuraih
It is not acceptable for children to be the witnesses of their father in this case.
Caliph Ali
Subhanallah! How come for men who are guaranteed entering heaven will not be accepted as the witness? (refer to Hassan and Hussin which mentioned by prophet as the youngsters of Heaven)
Qadhi Syuraih
Even so, Amirul Mukminin, I could not let children as witnesses to support their father in this case. O Jew man, take this armour as it is yours.
Jew man
Amirul Mukminin Ali has brought me for judgment through his court (Islam) and Qadhi (judge) of his choice. Judge of his choice decided differently. I witness that this religion is true. (and without hesitate, he recites the shahadah)
Jew man
Actually this armour does belong to you, O Amirul Mukminin, it was dropped from you during that night.
But then, Caliph Ali gives the armour to the Jew as a gift.
Thus, the moral of the story is the non-Muslims can defend themselves in the Shariah court. In fact using the service of a lawyer should be permissible and also the rights of client to choose his representative due to the lawyer’s credibility, knowledgeable and experience in that area of law whether he is Muslim or not. Likewise, it can be said that the potential Shar’ie lawyer can be amongst non-Muslims and Muslims as it satisfies definition of lawyer that is someone whose job is to advise people, write formal agreements, or represent people in court. Furthermore, there are some advantages by opening a door for non-Muslims to be Shar’ie lawyers involved room of improvement in the legal system and also to widen many scopes in order to uphold the wholly Shariah law in Malaysia. Consequently, the non-Muslims may slowly embrace Islam eventually when they reached the highest and depth understanding of Islam with the Allah’s light of guidance. As Prophet Muhammad, the Messenger of Allah very explicitly stated:
“Like gold and silver, men are different in their qualities, whether before Islam or after Islam. The best of them before Islam is apt to be the best when he comes to understand Islam.”
This Hadith is can be used to support the verse of Qur’an which also has a case behind it and to be taken lessons from it:
“We have sent down to you Book in truth, that you might judge between men, as guided by God: so be not (used) as an advocate by those who betray their trust…”
(Surah Al-Nisa’, 4:105)
The commentators explain this passage with a reference to the case of Ta’ima ibn Ubairaq, who was nominally a Muslim but really a hypocrite and given to all sorts of wicked deeds. He was suspected of having stolen set of armour but when the trial was hot, he planted the stolen property in the house of a Jew, where it was found. The Jew denied the charge and accused Ta’ima, but the sympathies of the Muslim community were with Ta’ima on account of his nominal profession of Islam. The case was brought to the Prophet (SAW) who acquitted the Jew according to the principles of justice. Attempts were made to prejudice him and deceive him into using his authority to favour Ta’ima but these failed.
Muslims should be realized that even among them are hypocrites and as human never will be purified from sins as in the hereafter, Muslims will be weighed and judged by Allah for their live deeds in the world. Hence, Muslims should not be so judgmental towards non-Muslims because it is the duty and burden of Muslims to uphold Shariah law and spread the belief of Islam towards the non-Muslims.
Even though Shariah law can be illustrated like free-size clothes but yet it is designated and custom made by Allah for specifically to all His believers and generally to every human being in the world. Nonetheless, it wills not being fitted and stretched freely and perfectly as there must be a draw line between the non-Muslims to avoid transgression and misconception. Besides that, Shariah law should be handled with care by expertise. This matter has extended to the question on criteria of Shar’ie lawyer and which arise another issue whether they can reach the expectation of it or not. Tan Sri Datuk Prof. Ahmad Mohd Ibrahim and Dato' Prof. Dr. Mahmud Saedon Awang Othman also has listed the criteria of Shar’ie lawyer under the Islamic law are as the following:
1. Have a good character. The Holy Qur'an says to the effect: "You indeed in the Prophet of Allah a beautiful pattern of conduct for any for any one whose hope is in Allah and the Last Day and who engages much in the praise of Allah." (Surah Al-Ahzab, 33:21)
2. Be trustworthy. As stated in the Holy Qur'an to the effect "Allah commands you to render back your trusts to those to whom they are due." (Surah An-Nisa', 4:58)
3. Should perform his duties with sincerity, honesty and with the intention to serve Allah (SWT) for he is performing a worthwhile duty in the eyes of Allah (SWT).
4. Should have a good knowledge of the law, both substantive and procedural.
5. Should continue to improve his knowledge and make himself more competent to perform his duties.
They also added that both in the legal Profesison Act, 1976 and in the Peguam Shar’ie rules for the States, there are provisions stating that to became an advocate and solicitor or a Peguam Shar’ie, a person must be of good character and (a) has not been convicted of any criminal offence and (b) has not been adjudicated a bankrupt.
Based on the requirements stated, it does not mention that Shar’ie lawyer should be a Muslim. However, the requirement of no. 2 and 3 might cause curiosity and uncertainty especially the non-Muslims cannot be trusted as they do not profess Islam and their intention to serve Allah which is conceived as absurd for they still believe in other god than Allah. The main concern is their motive but then, even in the man-made law, it is hard to prove a bad motive or malice and to be used as an evidence of someone's wrongful act. That is why there should be stressed on that judge must be Muslim in the Shariah court. It is mentioned in the Qur’an, Surah Al-Maidah, 5: 6-11 on the duty on uprightness, and one of the verses:
“... O you who believe! Stand out firmly for God, as witnesses for fair dealing, and let not hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear God. For God is well-acquitted with all that you do.”
(Surah Al-Maidah, 5:8)
Nevertheless, there is some conflict on the qualification for being a judge regarding whether that the judge must be a Muslim or not. It is also noted by the late Tan Sri Datuk Prof. Ahmad Mohd Ibrahim and Dato' Prof. Dr. Mahmud Saedon Awang Othman that asserted:
7. The majority of jurists say that the judge must be a Muslim meanwhile there are some jurists especially those belonging to the Hanafi’s school, who take the view that non-Muslim judges can be appointed to hear cases where the parties or some of them are non-Muslims. The Majallah Ahkam Adliyyah in mentioning the qualifications for judge does not mention that he must be a Muslim. Some modern jurists like Muhammad Salam Madhur takes the view that a non-Muslim can be judge, as a non-Muslim can be accepted to give evidence. It can be argued that in Malaysia, non-Muslim judges can be appointed to deal with cases, in courts other than the Shari'ah Courts (which apply the Shari'ah and the Muslim personal Law and has jurisdiction only over Muslims).
Referring the review above, it can be considered that if non-Muslim can be a judge in Shariah court by some jurists, then it will be possible for a non-Muslim to be a Sharie lawyer. As the judge is the highest authority in any court following with the assistance of lawyers. Although there is such an opinion of jurist, it is much appropriate and reasonable for judge is a Muslim in order to supervise and guided the non-Muslim Shar’ie lawyer especially on their interpretation of Qur’an and Sunnah. In addition to that, Muslims in Malaysia are belonging to the Shafie’s school so they are prone to accept that judge must be a Muslim in Shariah court. Besides, the decision is up to judge whether to overturn it or not after hearing both parties. In the Qur’an said;
“(They are fond of) listening to falsehood, of devouring anything forbidden. If they do come to you, either judge between them, or decline to interfere, if you decline, they cannot hurt you in the least. If you judge, judge in equity between them. For God loves those who judge in equity.”
(Surah Al-Maidah, 5:42)
In the nutshell, we ought to look the bright side of these changes along with outlook of the history. It is an alternative to strengthen the Shariah law and fully adopt it for justice to be served and prevailed. Ineffectiveness of man-man law nowadays should be replaced and all the country in the world should be unified under the Shariah law excluding discrimination in races, countries, and colours because everybody has the equal rights in Islam. There are just too many weaknesses in man-made law as can be seen in TV whether in the form drama series or reality news. It can be described through a rhythmic poem;
Everyone seeks justice through law,
Everything from hitting someone's jaw,
Yet most of it is man-made which so many flaws,
As even a guilty person can get draw,
Citizens love to believe what they can saw,
Still among them were escapees living freely in the raw,
Which this has eventually becomes the last straw?
It is essential for Muslims have solid strong faith in their belief. Yet Muslims are exhorted to remain united stated in the Qur’an,
“And hold fast, all together, by the rope which God (stretches out for you), and be not divided among yourselves; and remember with gratitude God’s favour on you; for you were enemies and He joined your hearts in love, so that by His Grace, you became brethren; and you were on the brink of the pit of Fire, and He saved you from it. Thus does God make His Signs clear to you: that you may be guided”
(Surah Al ‘Imran, 3:103)
Plus, it is like propose a contract in acceptance of Islamic belief to the non-Muslim when they are committed themselves to participate in Shariah law. Yet it become obligatory the Muslims to fulfill the contract even with the non-Muslims unless they breach some of the terms and conditions. Their rights and obligations are determined according to basic text of Qur’an and Sunnah. Examples:
From the Qur’an:
“O you who believe! Fulfill (all) obligations.”
(Surah Al-Maidah, 5:1)
“… As long as these (non-Muslim contractees) stand true to you, sand you true to them: for God does love the righteous.”
(Surah Al-Tawbah, 9:7)
From the Sunnah, said the Prophet:
“Beware! Whosoever is cruel and hard on a contractee, or curtails his rights, or burdens him with more than he can endure, or takes anything his property against his free will. I shall myself be a plaintiff against him on the Day of Judgment.”
In the end, Allah who is the wisest judge of all that know what is best for His creations;
“… Is not God the wisest of Judges?”
(Surah Al-Tin, 95: 8)
In the light shed of Islam, we should seek guidance from Allah regarding this matter. And who knows maybe the non-Muslims will coincidentally embrace Islam during their service as Shar’ie lawyer for there is a saying, ‘don’t judge a book by a cover. For that, we Muslims should look forward for it to become reality. Whatever decision of court on the case, the Muslims should be open-minded and not being hasty about it because there always reason for every incident to be happened. Thus, I’m strongly agreed that non-Muslims can be Shar’ie lawyer but stress on accordingly with guidelines and procedure Of Shariah law.

No comments:

Post a Comment


Related Posts Plugin for WordPress, Blogger...