Court to decide if rule barring non-Muslim Syariah lawyers in breach of Constitution

  • Nation
  • Wednesday, 04 Feb 2015

PUTRAJAYA: The Federal Court is set to decide whether the law stating that only Muslims can practice as Syariah lawyers is in contravention of the Federal Constitution.

Chief Justice Arifin Zakaria, who chaired a five-man panel, allowed the additional question of law for deliberation.

The apex court is hearing the Federal Territory Islamic Religious Council (MAIWP) and Attorney-General’s Chambers appeal against the landmark decision by the Court of Appeal to allow non-Muslim lawyers to practice Syariah law.

Lawyer Victoria Jayaseele Martin, 52, who has a Masters in Comparative Law from International Islamic University (UIA), represented by lawyer Ranjit Singh, is seeking to be admitted as a Syariah lawyer.

The additional question is whether the part of Rule 10 of the Rules for Syariah Lawyers 1993 mandating that only Muslims be admitted as Syariah lawyers is in contravention of Article 8 (1) and or 8(2) and/or Article 5 and/or Article 10(1)(c) of the Federal Constituion and, as a consequence, void.

Article 8 (1) states that all persons are equal before the law and entitled to the equal protection of the law while Article 8(2) touches on non discrimination against citizens on the grounds of religion, race, descent, place of birth or gender.

Article 5 touches on liberty of the person while Article 10(1)(c) states that all citizen have the right to form associations.

Together with Chief Justice Arifin on the panel are Court of Appeal president Justice Md Raus Sharif, Federal Court judges Justices Suriyadi Halim Omar, Azahar Mohamed and Court of Appeal judge Justice Zaharah Ibrahim.

The Federal Court had on Jan 28 last year allowed a question of law to be heard which is whether the rule mandating that only Muslims can be admitted as Syariah lawyers) is beyond the power of the Administration of Islamic Law (Federal Territories) Act 1993.

On Wednesday, MAIWP’s lead counsel Datuk Sulaiman Abdullah argued that the Administration of Islamic Law (Federal Territories) Act was made for the purposes of Muslims and to set up Syariah courts and regulate proceedings at the Syariah courts.

Sulaiman submitted that Section 59 (2) (b) of the Act stated that the council may, with the approval of the Yang di-Pertuan Agong, make rules to regulate, control and supervise the conduct of Syariah lawyers.

He further submitted that it is entirely within the discretion of the legislator to restrict appearance of non-Muslim lawyers at Syariah courts.

He said that the council, in exercising its legislative power conferred by the Parliament, made rules pertaining to the qualifications of Syariah lawyer based on its intepretation of the Syariah.

He said that Martins contention that Section 59 (1) is the only provision prescribing the qualification for a person to be admitted as Syarie lawyer (ie to have sufficient knowledge of Islamic law to represent parties in any proceedings before the Syariah court) would lead to absurdity.

Deputy registrar Khainur Aleeza Ismail fixed May 14 for the continuation of the hearing, after meeting the parties for a case management.

On March 17, 2011 Martin lost her bid at the High Court to challenge the requirement that a Syarie lawyer in Kuala Lumpur must be a Muslim.

On June 21, 2013 the Court of Appeal judge Justice Abu Semah Nordin, who led a three-member bench, reversed the ruling saying the law governing the appointment of Syarie lawyers does not specify that applicants must be Muslim.

Martin had on Aug 24, 2009 applied to be Syariah lawyer in the FT but was rejected in Sept 9, 2009 on the ground that she was not a person who professed the religion of Islam as required by Rule 10.
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