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LAWYER Victoria Jayaseelee Martin made headlines in mid May with her quest to be admitted as a syariah lawyer in the Federal Territory. The Federal Territory Islamic Religious Council had refused admission to Martin because she was not a Muslim. On 14 May 2010, she was granted leave to have the council's decision reviewed by the High Court.

Martin's case raises interesting questions. Can a non-Muslim practise in the syariah courts? Is there anything in civil or Islamic law that prevents this? If so, what are the principles governing this restriction and are they constitutional?

Applying syariah law

Syariah lawyer Saadiah Din says there is no basis for restricting non-Muslim lawyers from practising in the syariah court, pointing out that non-Muslims practise in the Singapore syariah courts.

"Islam doesn't prohibit non-Muslims from appearing in the syariah court," she tells The Nut Graph.

"The syariah court is a court of law. It applies Islamic law, which is universal. If non-Muslim lawyers can submit to the syariah court's jurisdiction and argue based on Islamic principles, there should be no problems in them practising syariah law," she says.

She adds that many family law provisions under syariah law are in fact similar to those in civil law because the underlying principles are universal. For example, in a custody case in either a civil or syariah court, a child's welfare would be paramount, she says.

Lawyer Haris Ibrahim agrees, saying: "The syariah court practices syariah law. It is not dependent on faith." he says.

What is more important, he argues, is for syariah lawyers to have the requisite academic knowledge and expertise. "For example, Dr Patricia Martinez is a renowned authority on Islam and syariah law. Wouldn't she be an asset in the syariah court?"

Malaysian Syariah Lawyers Association president Mohd Isa Abd Ralip, however, disagrees. "Syarie lawyers must be Muslim because syariah courts are different from the civil courts," he says in a phone interview.

Mohd Isa argues that syariah lawyers must know more than just Islamic law and procedure. "They must also know the Quran, hadith and hukum syarak. To deal with this, they must have a belief in God. How can [non-Muslim lawyers] bring a case in the syariah court if they don't believe in the Quran and hadith?" Isa asks.

Legal discrimination?

Isa says the Peguam Syarie Principles clearly states that it is a condition that syariah lawyers must be Muslim. He says although there is no provision under the parent Administration of Islamic Law (Federal Territories) Act 1993, the Act allows the council to make rules for the appointment of syariah lawyers.

Constitutional law expert Prof Datuk Dr Shad Saleem Faruqi, however, states that there may be constitutional grounds to argue that the council cannot bar non-Muslims lawyers on the grounds of religion alone.

He cites Article 8 of the Federal Constitution which prohibits discrimination on the ground of religion only and also in the administration of any law related to the conduct of any profession.  "Article 8(5) permits differentiation in the issue of personal law, but I do not think that appearing in court is covered by that exception," says Shad Saleem in a phone interview.

Shad Saleem adds that the issue should also be seen from the viewpoint of the parties involved in a syariah case who must be given equal protection under the law. "If there are cases such as S Shamala or M Moorthy, where a non-Muslim faces their family life being destroyed, they should have a right to the counsel of their choice," Shad Saleem says.

Isa, however, refutes the suggestion that the Peguam Syarie Principles may contravene the constitution, arguing that syariah law falls under state, not federal, jurisdiction. "Under the state list, the constitution gives power to the state to make their laws, including those governing syariah lawyers."

Isa agrees that litigants should have the right to select their counsel of choice. But he stresses that the first requirement of becoming a syariah lawyer is to be a Muslim. "So they can choose any lawyer they want, as long as the lawyer is Muslim."

Disingenuous?

But are non-Muslims being disingenuous by seeking rights to practise in the syariah courts while refusing to appear in the syariah court and submit to its jurisdiction in cases such as Shamala's?

Haris says both issues are separate and must not be confused. "Non-Muslim lawyers practising in the syariah court will not enlarge its jurisdiction. Non-Muslim [litigants] would still not be able to appear."

Lawyer K Shanmuga, who represented R Subashini and Mohan Singh's family, explains that that is because the Federal Constitution restricts the syariah courts' jurisdiction to only persons professing Islam.

Additionally, Shanmuga argues that the Malaysian Syariah Lawyers Association is the one being disingenuous. "It says non-Muslims cannot be (syariah) lawyers, [but it] has also previously claimed that non-Muslim spouses must submit to the syariah court's jurisdiction!"

Islamic state

Shad Saleem says if Malaysia were a fully Islamic state, syariah would be applied extensively. And in some areas such as criminal law, it would apply to everyone, Muslim and non-Muslim alike.

"If non-Muslims lawyers are not allowed in the syariah courts, we'd have to come to the conclusion that in any criminal case, non-Muslims cannot argue a case. I don't think that's the intention at all. In an Islamic state with the syariah extensively applied, I don't think there's any such rule that only Muslims can argue in syariah courts," he says.

He notes that while there may be no clear cut position on the matter, the law should be interpreted sympathetically. "We should embrace with open arms anyone who wishes to learn other religions and become an expert in it and try to assist justice," says Shad Saleem. "I think justice is something anyone can try to assist in."