Non Muslims as Syariah Loyars?

In its press statement regarding non Muslims as Syariah lawyers, the Bar Council got the wrong end of the stick when it talks about a “dual” legal system in Malaysia, and that the Syariah system is “established” by the Constitution.

So now the Bar Council, as it so often does, is sticking its big fat nose into something else! Yet another press statement, this time saying that non Muslims should be allowed to practice as Peguam Syarie in the Syariah courts! (For background about this, read this article from The Nut Graph.)

Naturally, the Bar Council is again trying to get more work for more lawyers. As usual, its dressed up with high faluting talk of greater interfaith understanding, a right to counsel of choice, yada… yada… yada…

But as usual, they are making a valid point with the implicit argument that litigants in the Syariah courts should have a right to counsel of choice. Persons who profess Islam who go to Syariah courts pay through their nose. The number of qualified Syariah lawyers in each State is tightly controlled, and of that the number of good Syariah lawyers may be even less.

That brilliant and eloquent Senior Fellow from IKIM, who writes for that wonderful beacon of journalistic excellence the Star, has written about this. He’s quoted some other chappie who has written a book about Islamic law. They say, in effect, that a Syariah lawyer’s duty is to come to a “just and fair” decision even if it goes against their client’s interests. They say:

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”

A lawyer in the civil system also owes a primary duty to the Court. But the lawyer’s duty to the client is also paramount. If the two are in conflict, the lawyer must quit. He or she cannot continue to act for a client if the client insists that the lawyer disregards the paramount duty to the Court. But no lawyer is expected to defend a client with the view of maintaining the “system” or maintaining the law. If the law is bad or unconstitutional, the lawyer must find a way to argue around the law or must seek to challenge the law.

It is thus perhaps unsurprising that the Bar feels the public may be getting a raw deal from peguam syarie who meet with the Syariah authorities approval.

But Bar Council, where got dual system?

But the Bar Council has got the wrong end of the stick when it talks about a “dual” legal system in Malaysia, and that the Syariah system is “established” by the Constitution. Actually, we have one system.

We only have one system of justice. Our Federal Constitution creates the High Courts of Malaya and Sabah & Sarawak, the Court of Appeal and the Federal Court. It allows federal law to create other inferior courts, and State law to create Syariah courts.

The Federal Constitution allows State legislatures to establish Syariah courts and make Syariah laws for persons professing the religion of Islam. It is therefore theoretically possible for a State Assembly to not implement Syariah laws on persons professing Islam. Of course, the idea of this happening is ludicrous. But it would be constitutional.

The Federal Court in the cases of Latifah bt Mat Zin and Abdul Kahar Ahmad have quite clearly equated syariah courts as equivalent to the other “inferior” (used in the technical legal sense) courts (such as the Industrial courts, the magistrates and sessions courts and so on).

No disrespect is meant in referring to these courts as “inferior” – in law, all this means is that ultimately, the High Court retains its supervisory jurisdiction to ensure that the inferior court complies with the law.

Don’t stop though , Bar Council!

Anyway, Bar Council. Keep sticking your noses where it does or does not belong in your cries for justice. But try-lah to be a bit more precise even in your press statements!

P.S. You might wish to look into some other issues affecting members of the Bar practising in the ordinary civil courts as well and make a few more press statements about that.

Lawyers as Refugees

Refugee camp in the basement of Duta Court Complex

For example, do the public know that the fast tracking justice system now in place is probably resulting in much higher lawyers fees?

1. Lawyers are forced to do so much more work now with such shorter timelines, they will inevitably be charging more. Work under pressure of time always attracts a higher rate of remuneration.

2. Lawyers must also charge more since they do so much work after office hours or on weekend. This is not by choice ; lawyers (court going ones, especially) spend many precious office hours waiting for the Court to call up their case. This is mainly because, like government hospitals, the Courts (with rare exceptions) also insist on fixing all its matters for hearing at the same time. And joy of joy – from 1st July, its at the even earlier time of 8.30a.m.

3. Since court complexes do not have enough parking spaces nor proper public transport (at least in KL and Shah Alam), more and more lawyers are forced to employ drivers. (Ok – this one looks odd – boo hoo, poor lawyer, must have driver, but think about it: Its an extra cost to the lawyer, and he or she may not really want a driver.)

The list goes on and on. Its a hard life. Sob sob. Anyway, must be off. Time to get my (imaginary) driver to go buy my (imaginary) Rolex, to go with my (imaginary) Ferrari.

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Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 18 June 2010. You can follow any responses to this entry through the RSS 2.0.

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3 Responses to Non Muslims as Syariah Loyars?

  1. I think the whole issue stems from the mistake of allowing non-Muslim lawyers in the Syariah court. The Syariah court is a Muslim court. It's a religious court. IMHO, only people of the Muslim faith should be allowed to operate in the court. Since the court only functions on Muslims, it should only function from Muslims… run totally by Muslims, for Muslims.

    Anyway, jst my 2 cents worth

  2. Fanny Wang

    Dear Mr Shanmuga,

    I would like to ask you a question.

    As I understand from your article, the Syariah Court only has authority or power over Muslims? Am I correct?

    So if I am correct, if a Non Muslim Syariah lawyer were to stand up in a Syariah Court and call the Syariah judge a "Cocksucker" or "penghisap konek" in Bahasa Melayu, can that Non Muslim Syariah Lawyer be cited for contempt of Court?

    Because I'm not sure. If they can cite the Non Muslim Syariah lawyer for contempt, the Syariah Court will be having authority or power over a Non Muslim then? Am I correct?

    If the Syariah Court can only cite the Muslim lawyers for contempt, then I don't think it is very fair because Non Muslim lawyers is like having a diplomatic immunity.

    Thank you.

    Yours truly,

    Fanny

  3. saleem

    Well said Shan. Instead of dealing with the unrealistic and unilaterally imposed datelines and hearing dates by the Courts, or the flip coin justice that is being meted out due to the 'justice-by-numbers' system, the Bar has decided to stick their noses in an issue that not many of us give a damn about.