Tuesday, March 8, 2016

Federal Court to decide on March 23 if non-Muslim lawyers can appear in Shariah court

Seven months after hearing submissions from disputing parties, the Federal Court will finally deliver its decision whether non-Muslim lawyers can practice shariah law in the religious court. Lawyer Ranjit Singh, who is appearing for lawyer Victoria Jayaseele Martin, said he received a letter from the Federal Court registry yesterday that judgment would be pronounced on March 24. "This decision will determine whether non-Muslims can represent their clients in Shariah courts under separate state jurisdiction," he told The Malaysian Insider. A landmark judgement by the Court of Appeal in 2013 ruled that non-Muslims were eligible to practise as Shariah lawyers in the Federal Territories of Kuala Lumpur, Putrajaya and Labuan. Datuk Abu Samah Nordin, who led the three-man bench then, said that the Federal Territories Islamic Council's (MAIWP) refusal to process an application of a non-Muslim lawyer to practise as a Shariah lawyer was an act that exceeded its legal powers. Samah said Section 59 (1) of the Administration of Islamic Law (Federal Territories) Act 1993 clearly stated that "any person" with sufficient knowledge in Islamic law may be appointed as Shariah lawyer. Section 59 (2) gives the power to the council to make rules about the qualification of Shariah lawyers. "If the intention is to prohibit non-Muslims from appearing in a Shariah court, it should be expressly stated in the legislation," the appellate judge said in allowing the Martin's appeal. Samah added Martin's application to appear in the religious court was not given due process by the council. Martin filed a judicial review application in 2010 and sought an order to compel the council to allow her to practise as a Shariah lawyer in Kuala Lumpur. The High Court had dismissed her application in 2011. Despite her victory in the Court of Appeal, Martin could not appear in the Shariah court as the council was given a stay from processing her application. On August 13, a Federal Court five-man bench chaired Tan Sri Raus Sharif heard submissions from lawyers representing Martin, MAIWP, and Attorney-General's Chambers. During submissions, senior federal counsel Shamsul Bolhassan, acting as intervener for Putrajaya, told the court that non-Muslim lawyers were barred from practising Shariah law in the Federal Territories as the religious authorities are given powers to impose restrictions. Shamsul that the Administration of Islamic Law (Federal Territories) Act allowed MAIWP to enact procedures, qualifications and rules. He said Section 59(1) of the Act states that any person might be admitted as Shariah lawyer if he or she was qualified in religious law but that the council could also impose conditions under Rule 10 of the Peguam Sharie Rules 1993. "For purposive interpretation, it may be necessary that a Shariah lawyer must be Muslim to achieve the object of the Act," he told the bench. Lawyer Datuk Sulaiman Abdullah, who appeared for the council, said it made sense for Parliament to pass a general law but it was left to the council to determine the conduct of Muslims. "The purpose of the Act is to bring benefits to Muslims," he said, adding that it made sense that only those who share the faith could practise Shariah law. Datuk Dr Cyrus Das, who argued Martin's case before the bench, said Rule 10 was an inferior legislation and could not override a law passed by Parliament, which allowed Muslims to practise the religious law. "It looks now that the rule has precedence over the Act." He said the council could‎ impose conditions but not bar non-Muslims from practising. – March 8, 2016.]]>

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