What makes a syarie lawyer?
Ikim Views
By DR WAN AZHAR WAN AHMAD
Senior Fellow/Director, Ikim
A non-Muslim who wants to practise as a syarie lawyer must believe in all fundamentals prescribed by Islam and understand as many Islamic teachings, principles and tenets as possible.
LEGAL dualism in Malaysia is reflected by the application of two sets of laws – syariah and civil. The former has been practised centuries prior to the invasion of the colonialists, while the latter was introduced after the coming of the British to this land.
Now, there exists two groups of lawyers – syarie and non-syarie legal practitioners. Under certain circumstances, a section of them may practise in both systems provided certain requirements are met.
To become a civil lawyer, one must obtain the Bachelor of Laws degree from any tertiary institutions recognised by the Government. After being called to and admitted by the Bar or any other relevant body, one may serve as an advocate and solicitor in the country.
For syarie lawyers, they have to fulfil a number of additional conditions, which are generally the same throughout the country, but there are some minor variations in some states.
For example, Rule 10 of the Peguam Syarie Rules 1993 (Federal Territories) clearly provides that a person may be admitted to be a syarie lawyer if he
(i) is a Muslim and has passed the final examination which leads to the certificate of bachelor’s degree in Syariah from any university or any Islamic educational institution recognised by the government of Malaysia;
(ii) is a Muslim member of the judicial and legal service of the Federation; or, (iii) is a Muslim advocate and solicitor enrolled under the Legal Profession Act 1967.
Section (c) of the same Rule states that the aspiring applicant must be of good behaviour, while Section (e) stipulates that as an advocate and solicitor, he or she must pass the Sijil Peguam Syarie examination.
Considering the provisions mentioned, can a non-Muslim apply to become a syarie lawyer? The answer is obviously a categorical “No”.
But, we cannot solely rely on law and its legal provisions to deny any application, as people see no rationale justifying such a rejection.
Here, at least two rationales can be given to fill the seemingly lacunae. Firstly, in Islamic tradition, the terms “Islam” and “Syariah” have been applied interchangeably as synonyms.
Though the latter is generally perceived as more technical referring mainly to legal matters, in reality it covers all aspects of human life – theology, law, politics, economics, ethics, and so forth – to form a complete religion and way of life known as Islam.
Therefore, knowledge about syariah implies knowledge about Islam and vice versa.
In addition, Islam is a divine religion meant and brought to all mankind by Prophet Muhammad. Those who accept his call, recognise and believe in him as the last Messenger of God are known as Muslims.
Should disputes arise among them, possible solutions must be obtained within the parameters specified or recognised by the religion. It may be reached either inside or outside the formal court of justice establishable by syariah.
Realising the above framework, 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”. (Farid Sufian Shuaib, Administration of Islamic Law in Malaysia, 2001).
In doing so, he must constantly refer to the primary and secondary Islamic legal sources, namely, the Quran, the Sunnah of the Prophet, consensus (ijmak), analogy (qiyas) and other methods agreed upon by Muslim jurists and scholars.
Therefore, for a non-Muslim to become an effective syarie lawyer, he must first of all believe in all fundamentals prescribed by Islam. He must make efforts to understand as many Islamic teachings, principles and tenets as possible and outwardly put them into practice.
He is also required to adequately master the art of applying and deriving conclusions from all those primary and secondary sources of Islamic law. And it takes years for one to sufficiently learn all the necessary processes.
How best can a non-Muslim “syarie lawyer” fight for the interests of his Muslim client if he himself actually does not sincerely believe in Islam and practise the religion?
Understanding Islam based on unguided readings or attending sporadic short courses is far from enough for one to claim so. A 150-hour course in Islamic law, for example, does not guarantee that one understands syariah to the extent that he is qualified enough to talk confidently in the area.
By analogy, can a non-Christian like me, after claiming some knowledge in the religion, apply to become a priest without changing my religion? By the same token, can I apply to be a Hindu or Buddhist monk just by having a certain diploma in certain respects of these religions without abandoning my original faith?
No religious authorities would allow that “encroachment” to take place as that would only create suspicions, problems and confusion in their respective groups in particular and in the masses in general. It does more harm than good.
“Accepting” Islam cannot be compared with accepting something non-religious or cultural in nature. Thus one may enrol as a martial arts student in silat, tae kwan do, kungfu, etc, irrespective of one’s religious or racial background.
Similarly, a non-Malay may adopt a Malay wedding ceremony; a Malay-Muslim may become involve in a certain Hindu arts, or join a Chinese Opera group. All these can be done, I believe, without having to compromise one’s religious beliefs.
Secondly and in brief, literature on Islamic law is abundantly written in Arabic. A good syarie lawyer will have to master the language for him understand the syariah better. Quranic and prophetic texts as well as juristic opinions are all preserved and recorded in Arabic.
Considerable works may be translated into and available in many other world languages but a tremendous amount of material remains in Arabic.
In Malaysia, I believe there is no non-Muslim lawyer who understands Arabic good enough that may help or enable him to comprehend syariah better to qualify him to practise in that field. Even if one manages to acquire and fulfil this requirement, his understanding of Islam remains doubtful.
Generally, for those who do not sincerely believe in Islam or do not properly practise the religion, and those who do not have the linguistic skill of Arabic, they are advised not to indulge in Islamic law as their profession, fully or partially, even if they are Muslims. Let alone if they are non-Muslims.
New directions for young lawyers
Putik Lada
By TONY WOON
The younger set of lawyers needs to be at the forefront of discourse on changes to legislation practice today as they will inherit the system that will ultimately evolve.
THE National Young Lawyers Committee (NYLC) was formed by the Bar Council with the main objective of dismantling the shackles of Section 46(1)(a) of the Legal Profession Act 1976 that disqualifies an advocate and solicitor of less than seven years’ practice from being a member of the Bar Council, or Bar Committee, or any committee of the Bar Council.
It was thought that this disqualification smacked of inequality to young lawyers. After a series of representations to the Attorney-General, Parliament finally, on Oct 2, 2006, repealed Section 46(1)(a), and thereby removed the shackles on young lawyers.
With the shackles removed and young lawyers empowered, what now for the young lawyers? The NYLC’s current primary objectives are:
> Promoting and protecting the interests of young lawyers and pupils in chambers;
> Enhancing the continuing professional development of young lawyers and pupils in chambers for the betterment of the Malaysian Bar and society;
> Providing a platform for interaction and facilitating the exchange of perspectives and views on numerous issues concerning the Bar, professional practice, the administration of justice and law reform; and,
> Maintaining and nurturing good working relations with other Bar Council committees, and various NGOs and the media in advocating issues of concern affecting young lawyers and society in general.
These objectives are insufficient to provide for the needs of society and young lawyers in the current environment.
Society will expect – and even demand – reciprocity of duty and social responsibility with empowerment. Issues on promoting young lawyers’ interests and continuing education should no longer be accorded priority with the existence of the NYLC and a continuing professional development system by the Bar Council.
The NYLC needs to take a stand on professional practice and law reform, and push for its views to be heard.
It is no longer sufficient to merely facilitate an exchange of perspectives and views.
One of the main objectives and duties of the Bar Council, as promulgated by Parliament, is to uphold the cause of justice without regard to the interests of its members and without fear or favour.
This object has been echoed and reiterated by the Bar Council to the tune of infinity.
That notwithstanding, it is still beholden on us young lawyers to sing to this tune and to hold on to it as our primary objective.
To this end, the NYLC needs to expand its aims and objectives to uphold the cause of justice in two wide areas: legal practice in the fast changing environment and law reform, including new legislation.
Litigation practice has seen much change in the past year due to the dogged pursuit by the Chief Justice of the elimination of the backlog of cases.
The changes that have been implemented in litigation practice have certainly affected the administration of justice, young lawyers and society as a whole.
The question being persistently asked is whether the changes benefit society in term of economics of litigation, social values, access to justice, quality of justice meted out and so on and so forth.
Given that the young lawyers will inherit the system of practice that will ultimately be moulded by the current changes, it is critical that the NYLC looks into the changes in detail and gives its views without regard to the interest of its members.
Is the current practice direction by the Court of Appeal in fixing dates for the hearing of appeals without regard to the availability of counsel in breach of the litigant’s right to his choice of counsel?
Is it in the interest of society to encourage lawyers to form large partnerships to ensure that there will be a lawyer to attend to a hearing fixed on a day when the counsel in charge already has another hearing scheduled to proceed in another court?
Will this practice ultimately benefit society or will it burden society with higher costs?
Should the courts commence proceedings at 8.30am, in yet another new direction to change the practice of litigation, bearing in mind that some courts are currently proceeding beyond 5pm – and in some cases till 9 pm – in an effort to eradicate the backlog.
In conveyancing practice, is it in society’s interest to have a fixed scale of costs with no discretion for the lawyer to give a discount?
Although this had been debated for the last seven or eight years, and the resolutions at the AGM of the Malaysian Bar had always supported the no-discount rule, young lawyers should look at the issue from the current perspective, taking into consideration the ever changing nature of society, the future of conveyancing practice, the new Competition Act, bearing always in mind society’s interest.
Is there a pressing need for enforcement rules to ensure the no-discount rule is adhered to? Why can’t lawyers adhere to rules without having to have rules for enforcement?
The NYLC should continue the call to all young lawyers to take up legal aid cases.
The resolution by the Malaysian Bar for every lawyer to take up at least one legal aid case a year must be made compulsory for all, and not remain just a resolution on paper.
All young lawyers must make it their aim to adhere to the resolution and to lead by showing their willingness to heed the call of duty.
The proposed National Legal Aid Foundation will further provide members who choose to do more legal aid work with some form of remuneration.
Law reform and new legislation affecting society are also critically in need of the NYLC’s attention.
New legislation had in the past been promulgated without any, or much input, from all sectors of society.
Although currently there is more consultation with the stakeholders when introducing new legislation, much more needs to be done to ensure transparency and the full flow of information on the effects of the legislation.
Current legislation in the news include the amendments to the Internal Security Act (which the Bar has always advocated for repeal thereto), the introduction of the Whistleblower Act, the Competition Act, etc.
What will be the effects of such legislation on society?
What about the long awaited amendment to the Law Reform Act, which was supposed to allow the non-Muslim spouse of a convert to have access to justice in civil courts?
How can we continue to press and push for amendments to the Printing and Publications Act and other laws that suppress freedom of speech?
In addition to its current aims and objectives, the NYLC will need to expand its priorities and objectives, and strive to attain greater heights in response to the expectations of civil society.
Young lawyers are called upon to heed the call of duty in upholding the cause of justice without fear or favour in implementing the way forward for the NYLC.
Orang Asli get RM6.5m in landmark case
PUTRAJAYA, May 26 — The Federal Court today recorded a RM6.5 million settlement for Orang Asli plaintiffs in a landmark land rights case.
The sum is to be paid by Lembaga Lebuhraya Malaysia (LLM) — on its own behalf as well as that of the Federal Government and United Engineers Malaysia Bhd (UEM) — to the Orang Asli applicants.
The case involved the forcible acquisition of Orang Asli land in Dengkil, Selangor for the construction of the Banting-Nilai highway in 1995. A total of 15.57 hectares were acquired from the Temuan-Orang Asli without compensation.
The plaintiffs in the case are Sagong Tasi, Kachut Tunchit, Dabat Chabat, Kepal Kepong, Sani Saken, Illas Senin and Tukas Siam.
In 1996, with the help of a team of pro bono lawyers from the Bar Council, led by Datuk Dr Cyrus Das, the Temuans fought the case in the Shah Alam High Court. The original defendants also included the Selangor government.
In 2002, the High Court ruled that the Orang Asli enjoyed native title rights over their traditional lands and they were to be compensated according to the Land Acquisition Act. The defendants appealed the decision, but the Court of Appeal in 2005 upheld the ruling of the High Court.
A subsequent appeal was then made to the Federal Court, which granted the defendants leave in 2006.
However, in April 2009, the now Pakatan Rakyat Selangor government pulled out of the Federal Court appeal, in keeping with its promise to recognise the land rights of the Orang Asli .
After negotiations with the Attorney-General’s Chambers, both sides have agreed to a settlement. LLM, as the acquirer of the land will pay cash compensation to the Orang Asli for the land taken, while the Orang Asli lawyers will waive all other costs and damages granted by the court.
As part of the settlement, LLM must deposit the payment of RM6.5 million at the Shah Alam High Court within one month from today.
The 26 families affected by the forcible evacuation can then claim the compensation from Shah Alam High Court, based on the amount of land that was taken from them.
Outside the courtroom, Sagong Tasi was delighted and said he was very satisfied with settlement.
“I am really happy after waiting for 14 years. I would not have been satisfied if the case was not settled; now my heart is at peace.
“I am now old, can’t see and can’t walk comfortably. I am really thin. Now that I have the money, I don’t know what to do. I don’t know if I want to buy a new house and maybe marry,” said the 79-year-old man while laughing with the reporters.
Selangor state executive councillor Elizabeth Wong said she hoped the landmark case would make the government reconsider planned amendments to the Orang Asli Act.
“With this landmark decision, I think the federal government has to rethink its current rules or process to amend the Orang Asli Act.
“Right now, there is an effort to amend the Act which would limit the kind of quantum that would be made [and] the size of land that would be given out as compensation.
“[This was] opposed to the customary land that they should be accorded to. So the decision of the federal government to amend the Orang Asli Act should not go against the decision of the court in this case,” she said
Bar Council president Ragunath Kesavan said today the apex court’s decision in the case of Kajang councillor Tan Boon Wah negated the fundamental liberties of witnesses and “does not safeguard their interests.”
“The courts play a crucial role as the arbiter of disputes between individuals and the state, and functions as a check-and-balance mechanism. However, the ruling, which gives the MACC too much leeway, bears testament that the courts have failed in that role"...
Bar Council flays ruling on unlimited access to witnesses
KUALA LUMPUR, May 24 — The Bar Council today slammed the Federal Court’s decision last week to grant the Malaysian Anti-Corruption Commission (MACC) powers to interrogate witnesses beyond office hours.
Bar Council president Ragunath Kesavan said today the apex court’s decision in the case of Kajang councillor Tan Boon Wah negated the fundamental liberties of witnesses and “does not safeguard their interests.”
He claimed that the ruling gave MACC “too much leeway” and did not offer witnesses any option to decline to be questioned.
“The courts play a crucial role as the arbiter of disputes between individuals and the state, and functions as a check-and-balance mechanism. However, the ruling, which gives the MACC too much leeway, bears testament that the courts have failed in that role,” said Ragunath in a statement.
The lawyer stated that a law enforcement agency’s powers to interrogate both witnesses and accused persons cannot be limitless, and that such powers must be subject to the rule of law and must uphold an individual’s fundamental liberties.
“Witnesses who aid law enforcement agencies in investigations should surely, at a minimum, be accorded the same protection and rights as accused persons, whose right to be allowed adequate rest is guaranteed by Rule 20 of the Lockup Rules 1953.
“Witnesses would then be encouraged to be forthcoming in assisting with investigations, as they would have no reason to fear the interrogation process or dread being unduly detained for long and unreasonable hours.
“The Malaysian Bar had earlier expressed its disappointment when the Court of Appeal overturned the High Court’s commendable ruling that the MACC can only undertake interrogation of witnesses from 8.30am until 5.30pm. The High Court’s decision was a positive step forward in safeguarding human rights and improving the practices of law enforcement agencies,” said Ragunath.
The Federal Court had unanimously dismissed Tan’s appeal against a Court of Appeal decision which went against an earlier High Court ruling where he had won a limit to the time anti-graft officers could question witnesses.
The Malaysian Bar’s statements echoed Tan’s lawyer, Karpal Singh’s concerns that the Federal Court ruling would only give the impression that suspects were treated better than witnesses.
However, Ragunath also said that the Malaysian Bar welcomed the fact that MACC would now have to provide justification for interrogating witnesses after office hours.
“We welcome the MACC Chief Commissioner’s reported statement that MACC officers have been directed to conduct their investigations during office hours and that the officers have to provide justification for ‘taking evidence after office hours’.
“We reiterate our position that witnesses can be interrogated outside of office hours if the witnesses agree to do so, and attend the interview with their legal counsel. Both the appellate courts’ decisions, however, permit the MACC to compel witnesses to appear and be questioned, including for long periods of time that stretch beyond office hours, with no option for them to decline,” he added.
Ragunath called on the government to take immediate steps to protect the rights of witnesses and to promote transparent and accountable investigations, which would in turn enhance the credibility of law enforcement agencies.
The significance of the Federal Court ruling comes after MACC officers had questioned DAP political aide Teoh Beng Hock overnight last year, before he mysteriously fell to his death from their office in Shah Alam.
Teoh’s death is now the subject of a coroner’s inquest. It has affected the credibility of the MACC and caused public confidence in the agency to plummet significantly.
Teoh, who was the political aide to Selangor executive councillor Ean Yong Hian Wah, was found dead on July 16 outside the Malaysian Anti-Corruption Commission (MACC) office in Shah Alam.
The 30-year-old’s body was found sprawled on the roof of a five-storey building after he was interrogated as part of MACC’s investigation into the misuse of state allocations by the Selangor assemblymen.
Federal Court rules that MACC can examine witnesses outside office hours
PUTRAJAYA: Malaysian Anti-Corruption Commission (MACC) investigating officers can continue to interrogate witnesses beyond office hours, the Federal Court ruled Thursday.
The apex court said this when deciding an appeal by Kajang municipal councillor Tan Boon Wah against the MACC over the questioning of witnesses after office hours, which he submitted amounted to false imprisonment.
Federal Court judge Justice Mohd Ghazali Mohd Yusoff, who led a three-man panel, said the decision was unanimous.
Justice Mohd Ghazali said the Bench upheld the Court of Appeal decision on Dec 17 last year over the interpretation of Section 30(1)(a) of the MACC Act and Section 30(3)(a) of the same Act that the examination of witnesses cannot be restricted to normal working hours and could be done as and when required in the course of investigations.
Justice Mohd Ghazali, who sat with Federal Court judges Justice Abdull Hamid Embong and Justice Heliliah Mohd Yusof (both names correct), also ordered Tan to pay RM20,000 in costs to the MACC.
Justice Mohd Ghazali said the grounds of the judgment would be made available in due course.
In an immediate response, MACC's director of legal and prosecution division Datuk Abdul Razak Musa told reporters that the ruling was more practical to expedite investigations and ensure that evidence could be obtained quickly from the witnesses.
"The decision is final. There is nothing to stop MACC officers from conducting investigations and questioning witnesses after office hours," he said.
He also said that witnesses were asked to come to the MACC offices to give evidence and they were not being arrested.
"Therefore, there is no issue of false imprisonment of a witness in the course of an investigation," he said.
Tan's counsel Karpal Singh said the apex court ruling had serious consequences as the witnesses would be deprived of their sleep to assist the related investigations.
"This is an important issue but we have to accept the decision," he said.
On Nov 19 last year, High Court (Appellate and Special Powers division) judge Justice Mohamad Ariff Md Yusof declared, in a landmark ruling, that witnesses could only be questioned by the MACC from 8.30am to 5.30pm each day.
Tan, 40, was among three people who was summoned by the MACC to assist in investigations into the alleged misuse of allocations by several Selangor state assemblymen.
Gaps in Special Court lawReflecting on the law
By SHAD SALEEM FARUQI
No one could have anticipated that one day the Special Court would be asked by a Sultan to grant him habeas corpus or a declaration of his rights. The law is silent about a number of other momentous issues: whether the Special Court has jurisdiction to resolve disputes relating to a Sultan’s incapacity? What is the extent of an acting Sultan’s powers? Specifically, can an acting Sultan alter the composition of the State Succession Council? IN the last few months, several novel legal issues relating to the Sultan of Kelantan and his royal family have ended up in courts. The most spectacular was the application on behalf of the Sultan for a writ (order) of habeas corpus to free him from the allegedly unlawful restraint exercised over him by the State authorities of Kelantan when he sought to travel abroad for medical treatment.
The application was slated to be heard in the Special Court on May 9 but had to be postponed due to lack of quorum. The filing of the application draws our attention to the constitutional provisions relating to proceedings by or against the Rulers under Articles 181-183.
Pre-1993 immunity: Up to 1993 the sovereignty and prerogatives of the State Rulers and their absolute immunity from proceedings in any court were guaranteed by Article 181.
Due to the unfortunate abuse of their immunity by several Rulers, the Government of then Prime Minister Tun Dr Mahathir Mohamad, in an extremely courageous and controversial move, amended the Federal Constitution in 1993 and 1994 to abolish these immunities but with the following concessions to their Highnesses:
A-G filter: No civil or criminal action can commence against their Highnesses in their personal capacities except with the consent of the Attorney-General: Article 183.
Special Court: Their Highnesses cannot be dragged to the ordinary courts. A Special Court has been created to try all cases by or against the Yang di-Pertuan Agong and the Rulers: Articles 181(2) and 182(2) & (3).
Composition of Special Court: The Special Court has five judges. The Conference of Rulers has the right to nominate two of the judges: Article 182(1) and the other three are the Chief Justice of the Federal Court and the two Chief Judges of the High Courts.
Pardon: If convicted of a crime, the Yang di-Pertuan Agong, the Rulers and their consorts may be pardoned by the Conference of Rulers: Article 42(12)(b).
Despite these concessions, the overall effect of Articles 181-183 and section 1A of the Eighth Schedule on the position of the Rulers is quite drastic. Royal immunities are abolished. With the consent of the A-G, the Yang di-Pertuan Agong and the Rulers can be sued by ordinary citizens or prosecuted by the state. Where the Ruler is charged with an offence in the Special Court, he shall cease to exercise the functions of the Ruler of the State and those functions will devolve upon a Regent or a Council of Regency.
If convicted, a Ruler can be imprisoned like any ordinary person. No special place of detention is provided for by the law. Where a Ruler is sentenced to imprisonment for more than one day, he shall cease to be the Ruler of the State unless he receives a free pardon.
Putting the law under scrutiny, some issues remain enshrouded in mystery and mystique.
Royal families: Are members of royal families immune from the law? The legal answer is that the pre-1993 immunities applied only to the Sultans. Their consorts, Regents and other family members never enjoyed any immunity. Note for example the case of PP v Tengku Mahmood Iskandar (1973).
Likewise, the Ruling Chiefs or the Undangs of Negeri Sembilan are not part of the definition of “Ruler” and enjoy no special dispensation: Dato Menteri Othman Baginda v Dato Ombi Syed Alwi (1981).
Acting Sultans: Despite their exalted position, it was held in the case of Tengku Idris Shah v Dikim Holdings([2003) that acting Sultans are not covered by the definition of “Ruler” and are, therefore, open to civil or criminal proceedings in the ordinary courts.
The A-G filter: Though the Constitution gives the Attorney-General the momentous and discretionary power to grant or refuse consent to an action against the King or a Ruler, it appears that the “A-G filter” will not apply in some circumstances. First, if the Yang di-Pertuan Agong or the Rulers themselves institute proceedings to enforce their civil rights and secondly, if the court proceedings relate to the actions of the King or the Rulers in their official capacities. In such situations, the Government concerned will be sued.
A third exception is when a Ruler sues through an attorney: Dato’ Hari Menon (suing as legal representative of Tuanku Ja’afar Ibni Almarhum Tuanku Abdul Rahman, Yang Di Pertuan Besar Negeri Sembilan (2005).
Jurisdiction: Under Articles 181-183 as amended in 1993, the Special Court has exclusive jurisdiction to try all civil and criminal cases by or against their Highnesses no matter where the cause of action arose.
No one could have anticipated that one day the Special Court would be asked by a Sultan to grant him habeas corpus or a declaration of his rights. The law is silent about a number of other momentous issues: whether the Special Court has jurisdiction to resolve disputes relating to a Sultan’s incapacity? What is the extent of an acting Sultan’s powers? Specifically, can an acting Sultan alter the composition of the State Succession Council to his advantage?
Muslim personal law: An engaging issue has come up whether the Syariah Courts’ monopoly over Muslim personal law applies against the Special Court? For example, if a Sultan divorces his wife and the matter is contested or if the consort herself seeks a divorce, which court has jurisdiction?
The law is by no means clear. In favour of the view that despite Articles 181-183 the Syariah Court has exclusive jurisdiction, one can point firstly, to Article 121(1A) that in matters of Muslim personal law the ordinary civil courts cannot interfere.
Secondly, under Article 182(4), the jurisdiction and powers of the Special Court are the same as that of civil courts under the Federal Constitution or any federal law. Syariah matters do not belong to civil courts or to federal law and should therefore be outside the Special Court’s jurisdiction.
Thirdly, the composition of the Special Court and the qualification of its judges under Article 182(2) are so defined that not a single judge may have syariah qualification. In fact, the CJ who is the Chairman and the two Chief Judges could conceivably be non-Muslims.
Fourthly, rules relating to the Special Court link it closely with the Attorney-General but under Article 145(3), the A-G has no jurisdiction over syariah court matters.
On the other hand, it could be argued that the Constitution repeatedly provides that no proceeding whatsoever shall be brought in any court by or against the Ruler in his personal capacity except in the Special Court: Articles 181-182. To exempt the Rulers from all civil courts but subject them to the Syariah Courts of which they themselves are the titular heads does seem unusual.
The Special Court is not an ordinary civil court and is not ousted by Article 121(1A). Under Article 183(7), the King on the advice of the Chief Justice may make any adaptations or alterations to the law for the removal of any difficulty.
It is often said that hard cases produce bad precedents. They put the law on trial. This is what has happened to Articles 181-183 as a result of Kelantan’s imbroglio – its war games.
High Court: It's constitutional to teach Maths, Science in English
KUALA LUMPUR: In a test case brought by four students, a High Court has ruled that it is constitutional to teach Mathematics and Science in English.High Court (Appellate and Special Powers) judge Justice Mohd Zawawi Salleh decided Friday that two circulars on the execution of the policy over the teaching of Science and Mathematics in English in national and vernacular (Chinese and Tamil) schools did not contradict with the Article 152 of the Federal Constitution.
(Article 152 states that the national language shall be the Malay language.)
Therefore, the students - Mohammad Syawwaal Mohammad Nizar, Mohammad Fadzil Nor Mohd Rosni, Nur Najihah Muhaimin and Syazaira Arham Yahya Ariff - failed to get a declaration that the circulars dated Nov 27, 2002 on the execution of the policy was unconstitutional, null and void and of no effect.
Mohammad Syawwaal is the son of the former Perak Mentri Besar.
The students also failed to get a declaration that the Government had no power and privilege to introduce, enforce and implement the policy stated in the two circulars.
The students also failed to get the court to issue an order to compel the Government to change or restore the policy according to the provisions of the Federal Constitution and written law regarding the matter.
In his chambers, Justice Mohd Zawawi dismissed a civil action brought by the students with costs after hearing clarifications by the parties.
Peguam Syarie Mesti Muslim May 19th, 2010 | By Isa Nikmat | Category: Berita PilihanKUALA LUMPUR 19 Mei – Syarat untuk seseorang itu menjadi peguam syarie di Mahkamah Syariah dalam negara ini mestilah seorang yang beragama Islam.
Menteri di Jabatan Perdana Menteri, Datuk Jamil Khir Baharom berkata, perkara itu termaktub di dalam undang-undang dan enakmen Mahkamah Syariah yang menetapkan sedemikian.
“Kita bercakap soal peraturan. Perkara ini bukan boleh buat suka-suka. Peraturan menetapkan peguam syarie mesti beragama Islam,’’ katanya.
Jumaat lalu, Hakim Datuk Mohd. Zawawi Salleh membenarkan Victoria Jayaseele Martin mendapatkan semakan kehakiman untuk satu perintah mandamus (untuk memaksa kerajaan mematuhi perintah mahkamah) bagi mendesak Majlis Agama Islam Wilayah Persekutuan (MAIWP) menerimanya sebagai peguam syarie tanpa mengambil kira beliau bukan orang Islam.
Kes itu merupakan yang pertama di negara ini apabila seorang peguam bukan Islam diberi kebenaran untuk mencabar keputusan tersebut.
Peguam syarie mesti beragama Islam
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| JAMIL Khir Baharom (depan, empat, kiri) bergambar bersama Hakim Mahkamah Syariah Wilayah Persekutuan, Pulau Pinang dan Melaka selepas Istiadat Penyampaian Pentauliahan di Istana Negara, semalam. |
KUALA LUMPUR 19 Mei - Peguam syarie di Mahkamah Syariah di negara ini mestilah seorang yang beragama Islam.
Menteri di Jabatan Perdana Menteri, Datuk Seri Jamil Khir Baharom berkata, syarat tersebut termaktub dalam peraturan dan enakmen Mahkamah Syariah.
Menurutnya, rasional ditetapkan Islam sebagai asas untuk menjadi peguam syarie bukan sahaja disebabkan penggunaan dalil dan ayat-ayat al-Quran oleh peguam ketika di mahkamah.
Sebaliknya, jelas beliau, banyak lagi sebab lain berkaitan agama yang memerlukan peguam syarie beragama Islam untuk mengendalikan kes-kes di mahkamah.
''Kita tidak menghalang, cuma, ada peraturan-peraturan yang telah ditetapkan untuk seseorang itu menjadi peguam syarie.
''Mereka ini mesti beragama Islam. Ini bukan boleh buat suka-suka. Kita bercakap soal peraturan,'' katanya ketika ditemui selepas meninjau Masjid Negara yang akan dibaik pulih, di sini hari ini.
Turut sama ialah Menteri Kerja Raya, Datuk Shaziman Abu Mansor.
Jamil Khir mengulas mengenai seorang wanita yang bukan beragama Islam memperoleh kebenaran dari Mahkamah Tinggi Sivil di Kuala Lumpur Jumaat lepas dalam usaha awalnya menjadi seorang peguam syarie di Wilayah Persekutuan.
Hakim, Datuk Mohd. Zawawi Salleh membenarkan Victoria Jayaseele Martin mendapatkan semakan kehakiman untuk satu perintah mandamus (untuk memaksa kerajaan mematuhi perintah mahkamah) bagi mendesak Majlis Agama Islam Wilayah Persekutuan (MAIWP) menerimanya sebagai peguam syarie tanpa mengambil kira beliau bukan orang Islam.
Victoria, 48, diberi tempoh 14 hari untuk memfailkan permohonan semakan kehakiman tersebut. Tarikh bagi pendengaran kes itu masih belum ditetapkan.
Victoria yang memperoleh diploma dalam Undang-Undang dan Amalan Syariah (DSLP) pada 2004 dari Universiti Islam Antarabangsa Malaysia (UIAM) mengambil tindakan undang-undang di Mahkamah Sivil selepas permohonannya sebagai peguam syarie ditolak MAIWP melalui jawatankuasa peguam syarie.
Mengulas lanjut, Jamil Khir berkata, pihaknya tidak mengetahui agenda di sebalik permohonan itu, namun, ia secara jelas tidak memenuhi syarat yang ditetapkan.
''Sama ada kita setuju atau tidak, peraturan (syarat) ini tidak dipatuhi. Kalau tidak dipatuhi, bagaimana kita hendak setuju,'' ujarnya.
Mengenai tindakan Victoria yang akan mencabar keputusan hanya peguam beragama Islam boleh menjadi peguam syarie di mahkamah, Jamil Khir berkata, pihaknya bersedia untuk berdepan dengan tuntutan itu.
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