05 October 2010

SECOND PLACE: Can a Non-Muslim Be Sharie Lawyer?

Lately we were shocked by the news from main stream media about the judgement made by Kuala Lumpur High Court which consent the judicial review (mandamus) to suit the application of Victoria Jayaseelee Martin, a Christian lawyer, who wants to be a Sharie lawyer. On May 14, she won approval from the High Court to challenge the rule. The date for the hearing is yet to be fixed. The judicial review is one of the branches of the court’s inherent jurisdiction. Based on the courts authority (refer to common law), to review the legal action made by the executive and legislative party, courts must make decision that either the statute is permitted or vice versa with our constitutional (constitutional in nature) or either the result concluded by executive party that rely upon particular policies which in line with constitution. On the other hand, the reason that had been used by this applicant to be Sharie lawyer is because ‘to uphold the justice’.

Victoria, who was representative by Ranjit Singh in this case, has made claim in civil court after her application as Sharie lawyer has been rejected due to the reason that she is non-Muslim. After graduating from the University of London, Martin in 2004, obtained a diploma in Shariah Law and practice or Diploma Undang-Undang dan Amalan Syariah (DSLP) from the International Islamic University of Malaysia (IIUM) has filed the application in consent on certiorari order which want Majlis Agama Islam Wilayah Persekutuan (MAIWP) cancel the decision upon their rejection of her application to be Sharie lawyer. Applicant also want an announcement to be made that Rule 10 of the Peguam Syarie Rules 1993 (Federal Territories) that gives mandate only Muslim can be accepted as Sharie lawyer is an ‘ultra vires’ to Islamic Administration Law Act 1993. Besides that, the applicant also made a claim that another announcement must being done in a same way that who gives mandate that only Muslim can be Sharie lawyer is opposite with the article 8(1), 8(2), 5 and 10(1) in Federal Constitution.
The respective judge, Hakim Datuk Mohd Zawawi Salleh in his decision has rejected the evidence from MAIWP who was represented by Nadia Hanim Mohd Tajuddin that only Shariah court have jurisdiction to try the cases of their clients. This is because, actually Civil courts have jurisdiction to curb the issue as authorised by law.
I am fully believe that this issue will be settled by judiciary division in peace and harmonize condition without any bias to any party. However, I have some doubt here after evaluate particular circumstances. Firstly, this application was found triggered after the applicant faced the disappointed series of non-Muslim dilemma about rights and their responsibility when any case was tried in Shariah court. For example, applicant in this case Victoria Jayaseelee Martin, has said that she wants to be Sharie lawyer to handle cases such as custody battles for children where one spouse had converted to Islam and where Muslims had renounced their faith.
Magdelene Selvarajah, a social worker, said some Muslim lawyers are sympathetic to non-Muslims’ custody battles, “but they don’t dare take up such cases as it would be seen as going against Islam. So why not allow a non-Muslim, a person who is competent in Shariah law, to do so?”. In this problem, they must understand that our religion has fixed some guidelines to appoint Shariah lawyers and judges. Yet in another verse the Quran said :
“We have neglected nothing in the book”
Legal dualism in Malaysia is reflected by the application of two sets of laws which are Shariah and Civil. The former has been practised centuries prior to the invasion of the colonialists, while the latter was introduced after the coming of the British to this land. Now, there exists two groups of lawyers which are Syarie and non-Syarie legal practitioners. Under certain circumstances, a section of them may practise in both systems provided certain requirements are met.
To become a civil lawyer, one must obtain the Bachelor of Laws degree from any tertiary institutions recognised by the Government. After being called to and admitted by the Bar or any other relevant body, one may serve as an advocate and solicitor in the country. For syarie lawyers, they have to fulfil a number of additional conditions, which are generally the same throughout the country, but there are some minor variations in some states.
For example, Rule 10 of the Peguam Syarie Rules 1993 (Federal Territories) clearly provides that a person may be admitted to be a Syarie lawyer if he :
(i) is a Muslim and has passed the final examination which leads to the certificate of
bachelor’s degree in Syariah from any university or any Islamic educational institution
recognised by the government of Malaysia;
(ii) is a Muslim member of the judicial and legal service of the Federation; or, (iii) is a
Muslim advocate and solicitor enrolled under the Legal Profession Act 1967.
Section (c) of the same Rule states that the aspiring applicant must be of good behaviour, while Section (e) stipulates that as an advocate and solicitor, he or she must pass the Sijil Peguam Syarie examination.
Considering the provisions mentioned, can a non-Muslim apply to become a Syarie lawyer? The answer is obviously a categorical “NO”. However, we cannot solely rely on law and its legal provisions to deny any application, as people see no rationale justifying such a rejection. Here, at least two rationales can be given to fill the seemingly lacunae. Firstly, in Islamic tradition, the terms “Islam” and “Syariah” have been applied interchangeably as synonyms. Though the latter is generally perceived as more technical referring mainly to legal matters, in reality it covers all aspects of human life such as theology, law, politics, economics, ethics, and so forth to form a complete religion and way of life known as Islam. Therefore, knowledge about Shariah implies knowledge about Islam and vice versa.
In addition, Islam is a divine religion meant and brought to all mankind by Prophet Muhammad S.A.W. Those who accept his call, recognise and believe in him as the last Messenger of God are known as Muslims. Should disputes arise among them, possible solutions must be obtained within the parameters specified or recognised by the religion. It may be reached either inside or outside the formal court of justice established by Shariah.
فسألوا أهل الذكر ان كنتم لا تعلمون

“ask your matter (religious) to the expertise if you know”
Realising the above framework, the duty of a Syarie lawyer “is not only to present and argue a case for the interest of his client but, more importantly, to assist the court to arrive at a just and fair decision even if the decision of the court may not be in favour of his client”. In doing so, he must constantly refer to the primary and secondary Islamic legal sources, namely, the Quran, the Sunnah of the Prophet, consensus (ijmak), analogy (qiyas) and other methods agreed upon by Muslim jurists and scholars.
Therefore, for a non-Muslim to become an effective Syarie lawyer, he must first of all believe in all fundamentals prescribed by Islam. He must make efforts to understand as many Islamic teachings, principles and tenets as possible and outwardly put them into practice. He is also required to adequately master the art of applying and deriving conclusions from all those primary and secondary sources of Islamic law. And it takes years for one to sufficiently learn all the necessary processes. How best can a non-Muslim “syarie lawyer” fight for the interests of his Muslim client if he himself actually does not sincerely believe in Islam and practise the religion?
Understanding Islam based on unguided readings or attending sporadic short courses is far from enough for one to claim so. A 150-hour course in Islamic law, for example, does not guarantee that one understands Shariah to the extent that he is qualified enough to talk confidently in the area. By analogy, can a non-Christian like me, after claiming some knowledge in the religion, apply to become a priest without changing my religion? By the same token, can I apply to be a Hindu or Buddhist monk just by having a certain diploma in certain respects of these religions without abandoning my original faith?
There are no religious authorities would allow that “encroachment” to take place as that would only create suspicions, problems and confusion in their respective groups in particular and in the masses in general. It does more harm than good. “Accepting” Islam cannot be compared with accepting something non-religious or cultural in nature. Thus one may enrol as a martial arts student in silat, tae kwan do, kungfu, etc, irrespective of one’s religious or racial background. Similarly, a non-Malay may adopt a Malay wedding ceremony; a Malay-Muslim may become involve in a certain Hindu arts, or join a Chinese Opera group. All these can be done, I believe, without having to compromise one’s religious beliefs.
Secondly, literature on Islamic law is abundantly written in Arabic. A good Syarie lawyer will have to master the language for him understand the Shariah better. Quranic and prophetic texts as well as juristic opinions are all preserved and recorded in Arabic. Considerable works may be translated into and available in many other world languages but a tremendous amount of material remains in Arabic. In Malaysia, I believe there is no non-Muslim lawyer who understands Arabic good enough that may help or enable him to comprehend Shariah better to qualify him to practise in that field. Even if one manages to acquire and fulfil this requirement, his understanding of Islam remains doubtful.
The next point that I want to stress out about the purpose of Shariah. Every law is oriented towards certain purpose. The Shariah, being a divinely inspired code for human conduct, also has its own aims and objectives. Its primary goal is to free man from the grips of his own whims and fancies so that he may become a true servant of ALLAH S.W.T. As we reading the Al-Quran :
“then we put thee in the right way of religion : so follow thou that way and follow not the desires of those who know not”.
To enable man to serve Him, ALLAH has designed His laws to secure man’s interest and safeguard his well-being (maslahah), both in this world and hereafter. This is very significance to the issue that we have discuss earlier. I strongly believe if we give consent to non-Muslim be Sharie lawyer, the case of apostasy, drink liquor and gambling will be increased in a short time. We must be aware that our religion’s enemy will not allow Islam control the world and they will influence us to follow their way of life with any method (ghazwul fikr) that many of us did not realise it. However, I strongly believe to ALLAH S.W.T that Islam will unite and leads the ummah 100 percent sooner or later.
Generally, for those who do not sincerely believe in Islam or do not properly practise the religion, and those who do not have the linguistic skill of Arabic, they are advised not to indulge in Islamic law as their profession, fully or partially, even if they are Muslims. Let alone if they are non-Muslims. ALLAH S.W.T has said :
“this day, I have perfected your religion for you, completed My Favour upon you, and have chosen for you Islam as your religion”
I want to share some useful advices about the fiqh of dispute resolution. It is natural that everyone in a society cannot be expected to behave elegantly and responsibility. Violation is bound to occur, out of greed of power, money, authority, recognition, criminal motives and the social conflict that ensues. ALLAH S.W.T has clearly sanctioned this social dispute :
“if you fear a breach between them. Appoint two arbiters, one from his family and the other from hers. If they seek to set things right, ALLAH will cause their reconciliation...”.
Prophet Muhammad S.A.W also underline the importance of mediation when he said :
“shall I not inform you of something more excellent in degree than fasting, charity and solah? On receiving the reply, he said : It is putting things right between people, for to incite people to dispute is like a a razor. And I do not mean that it shaves off the hair bit it shears the religion”.
Another Quranic passage lays down the basic law of Islam about the relationship between Muslim and people of other faiths.
“ALLAH does not forbid you with regard to those who do not fight you on account of your religion nor drive you out of your homes, from treating them with goodness and from being just to them; truly ALLAH loves those who are just”.
Consequently, the cardinal principle of social relation in the Islamic view is one of peaceful coexistence and not in conflict, tension and hostility. The issue that we have discussed can be solved if there are co-operation between Shariah court and Civil court in upholding the true justice in this worldly life. We must realise our basic role in this world which are as the servants of ALLAH S.W.T, His caliphs and spread the truths. I am very confident if all of human being in this world realised their roles, we will not rely on the man-made law anymore. It is enough for us to apply the Law of ALLAH S.W.T as our guidance in life which based on Al-Quran and As-Sunnah. Last but not least, a non-Muslim who wants to practice as a Syarie lawyer must believe in all fundamentals prescribed by Islam and understand as many Islamic teachings, principles and tenets as possible.
Prepared by :

1 comment:

  1. i found the arguments very close and clear to the issue.i appreciate it that we have quality to defend our shariah practice from those people who do not have such knowledge which is required.

    jamilurrehman LLB(hon)shariah&Law LLM corporate law International Islamic University Islamabad



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