Federal Court rules that only Muslims can be Syariah lawyers

PUTRAJAYA: In a landmark judgment, a Federal Court ruled that only Muslims can practise as Syariah lawyers, ending lawyer Victoria Jaya­seele Martin’s bid to appear in the court.

In a 3-2 majority decision, the apex court held that the ruling was constitutional and that the profession was based on the concept of Islamic belief in Allah.

Court of Appeal president Justice Md Raus Sharif, who wrote the majority decision, said it was important to have a Syarie lawyer who professed the religion of Islam to achieve the objective of the Administration of Islamic Law (Federal Territories) Act.

“One of the most important criteria which makes an upright and virtuous Syariah lawyer is for the lawyer to have aqidah, which means belief with certainty and conviction in one’s heart and soul in Allah and His divine law.

“Thus, from the perspective of Syariah, it is fundamentally crucial for the Syariah lawyer to be selected among Muslims and only those who have faith in the religion of Islam and who are able to perform their duties with full conviction of that belief,” said Justice Md Raus.

The Federal Territory Islamic Religious Council (MAIWP) and the Attorney-General’s Chambers had contended that Rule 10 of the Rules for Syariah Lawyers mandated that only Muslims could practise Syariah law as Syariah courts had no jurisdiction over non-Muslims should they display any professional misconduct during proceedings.

Yesterday, the panel in the Federal Court decided on two questions of law in allowing appeals by MAIWP and the A-G’s Chambers against the Court of Appeal’s decision to allow non-Muslim lawyers to practise Syariah law.

The case was brought by Victoria who has a Masters degree in Comparative Law from International Islamic University.

Victoria appealed to the Court of Appeal after she lost her bid at the High Court on March 17, 2011, to challenge the assertion that a Syariah lawyer in Kuala Lumpur should be a Muslim.

In yesterday’s landmark judgment, Justice Md Raus said that Victoria was of the Christian faith, and that her faith “is surely in conflict with the Muslim aqidah”.

“In that sense, how is she to fulfil her duty to assist the Syariah Court in upholding Syariah law?” he asked.

Justice Md Raus said the issue on the deprivation of Victoria’s livelihood was misplaced as based on the facts of the case, she was not deprived of her law practice in the civil court.

All the five judges were unanimous that Rule 10 of the Rules for Syariah Lawyers was not in contravention with Articles 5, 8 and 10 of the Federal Constitution governing equality, liberty and right to form associations.

However, the two dissenting judges – Justices Suriyadi Halim Omar and Zaharah Ibrahim – said they found that Rule 10 went beyond the ambit of powers of the Administration of Islamic Law (Federal Territories) Act 1993.

Justice Suriyadi, who wrote the dissenting judgment, said “it was never the intention of Parliament to shut the doors to academically endowed non-Muslims having sufficient knowledge of Islamic law to appear in any Syariah Court”.

Justice Suriyadi said Section 59 (1) of the Act, which stated that the council might admit any person having sufficient knowledge of Islamic law to be Syariah lawyer to represent parties in any proceedings before the Syariah court, could be easily understood.