Court reserves judgment on non-Muslims as Syariah lawyers

PUTRAJAYA - The Federal Court has reserved its judgment over whether a non-Muslim is allowed to practise as a Syariah lawyer.

Court of Appeal president Justice Md Raus Sharif, who chaired a five-man panel, said the court would deliver its judgment on a later date.

The Federal Territory Islamic Religious Council (MAIWP) and the Attorney-General's Chambers (AGC) contended that only Muslims could practise Syariah law as Syariah courts had no jurisdiction over non-Muslims should they display any professional misconduct during proceedings.

On March 17, 2011, lawyer Victoria Jaya­seele Martin, who has a Masters degree in Comparative Law from the International Islamic University, lost her bid at the High Court to challenge the assertion that a Syariah lawyer in Kuala Lumpur must be a Muslim.

On June 21, 2013, then Court of Appeal judge Justice Abu Samah Nordin, leading a three-member Bench, reversed the ruling, saying the law governing the appointment of Syariah lawyers did not specify that applicants should be Muslims.

Victoria, 52, had on Aug 24, 2009, applied to practise as a Syariah lawyer in the Federal Territory but was rejected on Sept 9, 2009, on the grounds that she was not a person who professed Islam as required by Rule 10 of the Rules for Syariah Lawyers.

The apex court heard submissions regarding two questions of law in an appeal by MAIWP and AGC against the Court of Appeal's decision to allow non-Muslim lawyers to practise Syariah law.

Yesterday, Senior Federal Counsel Shamsul Bolhassan, who appeared for the AGC, argued that Rule 10 was constitutional and within the powers of the Act, which aimed to enforce and administer Islamic law as well as to provide for the composition and organisation of the Syariah court.

He added that the qualification to be a Syariah lawyer included being a Muslim.

"It is common ground that the Syariah court only has jurisdiction over persons professing the religion of Islam.

"The Syariah court must be able to enforce its laws and rules on a Syariah lawyer, for instance, when contempt or any breach of rules is committed," said Shamsul, who also argued that non-Muslims who misbehaved in Syariah courts could not be subjected to any action there.

"If non-Muslims are allowed to practise in Syariah courts, there will be a problem," he said.

MAIWP lead counsel Datuk Sulaiman Abdullah said it would be manifestly proper that only Muslims were allowed to be Syariah lawyers as Syariah courts had no power to deal with non-Muslims.

"Nobody is denying her (Victoria's) right to practise as an advocate and solicitor but her privilege to argue at the Syariah court," said Sulaiman.

In reply, Victoria's lead counsel Datuk Dr Cyrus Das said non-Muslims, if allowed to be Syariah lawyers, could still be referred to the Syariah Lawyers Committee for disciplinary action under Rule 17 and 18 of the same Rules if they misbehaved.

Earlier on, Das argued that Section 59(1) of the Administrative of Islamic Law (Federal Territories) Act clearly stated that the council might admit any person having sufficient knowledge of Islamic law to be a Syariah lawyer.

He added that if only Muslims were allowed to be Syariah lawyers, then it would have been reflected in the Act.

"Why did the legislator use the words 'any person' instead of 'any Muslim' to be admitted as a Syariah lawyer? Any person must be any person regardless of any religion. It is so obvious," said Das, who also submitted that Rule 10 as subsidiary legislation went beyond the ambit of powers of the Act, and contravened Articles 5, 8, and 10 of the Federal Constitution.

His co-counsel Ranjit Singh argued that the prohibition against non-Muslims was unreasonable as practising law is a profession and that Victoria should not be discriminated on the basis of religion.

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