Introduction A Lawyer, Victoria Jayaseelee Martin made headlines with her quest to be admitted as a Syariah lawyer in the Federal

Territory1. 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 practice 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? Syariah lawyer Saadiah Din says there is no basis for restricting non-Muslim lawyers from practicing in the Syariah court, pointing out that non-Muslims practice in the Singapore Syariah courts."Islam doesn't prohibit non-Muslims from appearing in the Syariah court". 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 practicing 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 custody case in either a civil or Syariah court, a child's welfare would be paramount, she says2. 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.

Ding Jo-Ann, Who qualifies as a syariah lawyer?, at http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=29802 2 Ibid.

"Syarie lawyers must be Muslim because Syariah courts are different from the civil courts,". 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 lawyers3. 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. 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

Ding Jo-Ann.

to be a Muslim. "So they can choose any lawyer they want, as long as the lawyer is Muslim" 4.

General rule Allah said:

O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just; that is nearer to righteousness. And fear Allah; indeed, Allah is Acquainted with what you do 5.

This verse clearly leads the Muslim to uphold the justice. Thus, permissible deeds in the absence of any clear injunction which is closer to justice should be allowed. In this context, there is no dispute that a judge should be a Muslim since he will be responsible to give judgment in accordance with Shariah6.
y

[They are] avid listeners to falsehood, devourers of [what is] unlawful. So if they come to you, [O Muhammad], judge between them or turn away from them. And if you turn away

4
5

Ding Jo-Ann. Al-Maidah:8. 6 Zaharudin Abdul Rahman, Bolehkah Peguam Syarie Bukan Muslim?, at http://www.zaharuddin.net/senarailengkap-artikel/3/933-bolehkah-peguam-syarie-bukan-muslim.html

from them - never will they harm you at all. And if you judge, judge between them with justice. Indeed, Allah loves those who act justly 7. This verse shows that the Islamic courts are always ready to accept any non-Muslim individuals to seek justice or to get the best decision in the dispute under Shari'ah. Thus, in the context of giving evidence, making the argument, non-Muslims are free to argue in court if he is not represented by any lawyer. This situation is directly clear that the Islamic courts accept the argument non-Muslims whether in the name of the prosecutor, the accused and also a lawyer representing his client8.
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Indeed, We have revealed to you, [O Muhammad], the Book in truth so you may judge between the people by that which Allah has shown you. And do not be for the deceitful an advocate. This verse was revealed due to a hypocrite named Tumah who had accused a Jew that he had stolen the armour of war belongs to Qatadah ibn Nu'man. This case ended with the sentence imposed on the Jews, but God sent down a verse shows that Jew was not guilty9. Al- Razi said that the purpose of the prohibition ( ) is a reminder to the

Prophet that Tu'mah lying and Jews are not guilty of the crime to steal. The verse also clearly explains how the non-Muslim from Jews tried in the court at the time of the prophet and it is strongly believed that the accused had been given an opportunity to defend himself. The story of Ali ibn Abi Talib who had claimed that a Jew had stolen his amour. Ali said to Qadhi Shuraih that his amour was dropped out at night and later on he found that it was in the

7
8

Al-Maidah: 42. Zaharudin. 9 Ibid.

hand of a Jew. Then Qadhi Shuraih asked the Jew and he replied that it was his and Qadhi Shuraih asked Ali to bring two witnesses. Ali brought his two sons as witnesses and it was rejected by Qadhi Shuraih by saying that witness of a child to his father his unacceptable. Then, Qadhi Shuraih gave judgment in favour of the Jew. Based on the above story, it clearly shows that a non-Muslim is allowed to present his argument. If a non-Muslim is allowed to defend himself, it is also allowed for him to appoint a counsel. The question of lawyers are included in the chapter "Al-Wakalah bil Khusumah or AlWakalah Fi Al-Da'wa '. It means appointing someone to a lawyer to represent himself in trial. It is clearly mentioned by the scholars that there is no prohibition which prohibits nonMuslim lawyer to represent a Muslim .Non-Muslim lawyer can represent a Muslim in any case involving property, family, inheritance rights and so forth10. Profession of lawyers had already existed since the early period of Islam although it was not formally or specifically called as lawyers or solicitors or barristers11. In fact, the principle of wakalah bil khusumah (agency) has already been practiced as the time of jahiliyah where any legal dispute would be referred to kahin or arbitrator. The arbitrator is appointed from the respected tribe and a noble family. During the time of the Prophet, the practice of Wakalah can be seen in the case of Muadz bin Jabal be appointed as a Judge in Yemen. The Prophet also asked Unais to determine conviction and enforcement of Hudud punishment on an adultery offender12. Saidina Ali Ibn Abi Talib was known as one of the best legal representatives amongst the companions. For instance in case of zina (adultery) where a pregnant woman who had been married confessed that she has committed zina and asked Caliph Umar to stone her to
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11

Zaharudin. Zulkifli Hasan, Ethical Priciples of Lawyers in Islam,p.4, at http://zulkiflihasan.files.wordpress.com/2008/10/shariah-law-report-ethics1.pdf 12 Ibid.

death. Ali has investigated and proven that the pregnant woman was unwillingly to have sexual intercourse with a man in a state of extreme hunger and thirsty. Caliph Umar accepted view of Ali and freed the woman. In another case, Saidina Ali Ibn Abi Talib represented a young man who has been accused for an offence of molestation Beside, Kaab also was . known for his cleverness in legal representation13. Although there are no formal legal profession during the early stage of Islam but historical evidence in many literatures provide indication of the existence of such profession. During the Abbasids Empire the lawyers profession is formally recognized where judges normally requested the disputed parties to be represented by a learned person in Islamic law. Amongst the famous lawyers at this time were Abu Ahmad Al Wazzan, a representative of Kadhi Abi Jaafar Ahmad Bin Ishak and Abdullah Bin Jaafar, a representative of Kadhi Abu Bakar Muhammad. It is contended that the modern practice of advocates and solicitors as practiced by Western legal system was only been introduced during the empire of Turki Uthmaniya14. It is submitted that the position of a Syarie lawyer is not like a judge, but as an executive officer.In fact, his claim or defence is not necessarily accepted by the judge. There may be a possibility for non-Muslim Syarie lawyer to recite the Quranic verse or Hadith wrongly but the trial can be held in camera , whereby the trial proceeding will not be disclosed to public. In addition, the judge can reject their argument if there is deviation arose15. ibn Qudamah said:

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14

Zulkifli. Ibid. 15 Zaharudin.

The view of ibn Qudamah indicates that the non-Muslim may be appointed to represent a Muslim16. The 29th Muzakarah of National Fatwa Committee held at 15 to 17 December 2010 had discussed about this issue. Having examined the evidence, arguments and views expressed, Muzakarah was of the view that to be a Syarie lawyer, one should be able to master the science of al-Quran ,al-Hadith, Arabic language , Fiqh and Usul Fiqh and it should be constituted with faith in Allah17. Therefore, in order to protect the sanctity and dignity of the Islam and Muslims, Muzakarah agreed that non-Muslims are not allowed to be appointed as Syarie lawyer18. The arguments raised by the National Fatwa Committee 1.) Sadd al-Zhar i ( )

Sadd literally means blocking and the word dharai which is the plural of dhariah ( synonymous to was lah) signifies the means of obtaining a certain end19. Sadd al-Zharai thus signifies the means of obtaining a certain end which is likely to materialize if such a means is not blocked.The means that is to be blocked in this context is the means to evil and not the means to something good. Al-Qarafi defined Sadd al-Zharai as closing down the means of evil in order to prevent it20. The whole concept of sadd al-zharai is founded in the idea of preventing an evil before it actually occurs21. It is therefore not always necessary that the result should actually obtained. It is rather the objective expectation that means is likely to lead to an evil result which
Zaharudin. http://www.e-fatwa.gov.my/ 18 Ibid. 19 Mohammad Akram Laldin, (2006), Introduction to Shariah and Islamic Jurisprudence, Kuala Lumpur, Cert Publication.p.112. 20 Ibid. 21 Kamali M.H., (1998), Principles of Islamic Jurisprudence, Kuala Lumpur, Ilmiah Publishers Sdn. Bhd.p.311.
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renders the means in question unlawful even without the realization of the expected result. For example, khalwah is thus unlawful even without actually leading to zina. The question of the intention of the perpetrator is not relevant to the objective determination of the value of the means. It is rather the expected result which determines the value of the means. If the result is expected to be good and praiseworthy, the means are also expected to be good and praiseworthy, and if it is expected to be blameworthy, the same will apply to the means regardless of the intention of the perpetrator22. The basis of sadd al-dharai

And insult not the associators lest they(in return) insult Allah out of spite and ignorance23. The above verse forbids Muslims from insulting idol-worshippers, notwithstanding the actual intention behind it. Classification of Sadd al-Zhar i a) means which definitely leads to evil, such as digging a deep pit on a public path which is not lit at night. Anyone who passes the path is most likely to fall in the pit. Another example is building of structure at hill slope which is proven to be unsafe for the construction of any building. b) The second type of Zhar i is that which is most likely to lead to evil and is rarely, if ever, expected to a benefit. For example, the selling of weapons at the time of war or selling grapes to wine maker.

22 23

Kamali. Al-Anam: 108.

Abu Zahrah stated that According to Maliki and Hanbali, these transactions are considered as Haram, as they are most likely to lead to evil notwithstanding the absence of certain knowledge that this will always be the case. c) the third type of means is that which frequently leads to evil, but in which there is no certainty that this will always be the case. For example the usage of credit card for those who are certain of not being able to repay the credited amount taken at the due date. This would eventually lead to the accumulation of debt and will normally harm a person. d) the last type of means is that which is rarely expected to lead to evil and is most likely to lead to a benefit. For example, the usage of current equipments such as computers, the internet, television, video players, and other electronic objects because there is possibility that a mafsadah might be caused such as the usage of computers and internet to spread rumours and the likes 24. The National Fatwa Committee argued that if non- Muslims are allowed to be appointed as Syarie lawyer, it will cause confusion among Muslims. There is possibility that the judges would be misled by the non-Muslim Syarie lawyers. If non-Muslims are allowed to be appointed as Syarie lawyer, there is possibility that they will apply to be appointed as Syariah court judge. The principle of sadd al-dharai can be seen from the Prophet prohibition on monopoly or ihtikar. Ihtikar means a single person or company being the only producer of a commodity either goods or service of which there is no close substitute available in the market25. This prohibition can be seen by referring to one Hadith where Prophet has reminded us that Allah will curse a person who monopolise others. In another Hadith

24
25

Akram. Zulkkifli.

reported by al-Tirmidhi, Prophet declared that: He who monopolizes is not but a wrongdoer Another example is concealment or hoarding of the property or iktinaz .Iktinaz refers to the case where shortages are created by holding large stocks of goods in warehouses and withholding them from sale26. The motive is that to keep supply less than the demand and to profiteer by this situation. Trader who can afford to block large sums of capital normally does this activity. In Hadith narrated by Ibnu Majah Prophet said: He is a criminal who hoards grain to sell it at higher price. In another Hadith he said: He also keeps back grain from sale for forty days only to sell it at higher prices, sale it that such a man is not aware of the existence of God or that God has cut himself off from him. Second caliph, Umar Ibn AlKhattab imposed the additional amount of the monetary payments paid by the offender of the victim. The decision by Saidina Umar to impose penalty to the person who concealed the property showed that Islam always prevents any kind of deeds, which will lead to unfair competition such as economic crisis and inflation. 2.) Maslahah Literally, Maslahah means benefit or interest. Al-Ghazali said that Maslahah consists of considerations which secure a benefit or prevent a harm but which are, simultaneously, harmonious with the objectives of the Shari'ah. These objectives consist of protecting of five essential values, namely religion, life, intellect, lineage and property. Any measure which secures these values fall within the scope of Maslahah, and anything which violates them is Mafsadah (evil)27. Maslahah Mursalah refers to unrestricted public interest in the sense of its not having been regulated by the law giver insofar as no textual authority can be found on its validity or

26

27

Zulkifli. Akram,p.108.

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otherwise. The companions, for example decided to established prison and to impose tax on agricultural lands in the conquered territories despite the fact that no textual authority could be found in favour of this. The Muslim scholars agreed that Masalih Mursalah is not a proof in respect devotional matters (Ibadah) and the specific injunctions of the Shari'ah. Thus, the authority regarding the prescribed penalties in Hudud crimes, the fixed entitlements of inheritance, the specific periods of Iddah which the divorced women must observe and such other rulings which are clear, fall outside the scope of Masalih Mursalah28. Basis of maslahah Hadith of the prophet:

The Islamic legal maxim used by the National Fatwa Committee:

"The actions of the ruler or Imam should be bound by public affair (maslahat)." In general, methods and debates of this maxim are to include matters related to the management and Siasah Syariyyah. It is also related to the general rule in matters relating to governance and action against leaders of the people. As an illustration for the principle of maslahah, we may refer to the principle of tasiir or price regulation29. For example, regulation introduced by the Ministry of Internal Affairs and Domestic Trade in prohibiting traders to sell sugar, rice, chicken and meat at the high
28
29

Kamali,p.268. Zulkifli.

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price over the ceiling and in preventing monopoly in the market 30. The traders who have violated the law will be penalized in monetary means. Such law is to protect public from facing inflation, which may cause difficulties and harm to them. This matter promotes the maslahah. If there is no such law it will cause inflation and the traders will fix the price whenever they want and to maximize their profit without considering interest of the public. Another example that can be found in the traditional fiqh book is that sale by a city dweller to a desert dweller31. A city dweller is someone who is knowledgeable of real market prices while a desert dweller is likely to be ignorant of these prices. It was common practice in pre Islamic times that city merchants would go to the outskirts to meet desert dwellers coming into the city to sell their products and buy their needs, City merchants would take advantage of the ignorance of these people and buy their goods at low price or sell the goods at unfairly high prices. The prophet interdicted this kind of sale in his statement. A city dweller should not sell things. To a dessert dweller, leave people to obtain their livelihood from each other by the grace of God. The point behind interdicting this sale is safeguarding the interest of the Muslim community32. 3) if the non-Muslims Syarie lawyer commit any misconduct, no action can be taken against them since they are not bound by the Syarie Lawyer Rules. This is also the argument made by the National Fatwa Committee in not allowing the non-Muslim to be appointed as Syarie lawyer.

30
31

Zulkifli. Ibid.. 32 Ibid.

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The Role of al-Siyasah al-Syariyyah in respect of the prohibition of appointment of nonMuslim as Syarie lawyer. Islams approach to justice is comprehensive and all-embracing. Any path that leads to justice is deemed to be in harmony with Islamic Law. God has demanded justice and, although He has not prescribed a specific route, has provided general guidelines, on how to achieve it. He has neither prescribed a fixed means by which it can be obtained, nor has He
33 declared invalid any particular means or methods that can lead to justice . Therefore, all

means, procedures, and methods that facilitate, refine, and advance the cause of justice, and do not violate the Islamic Law are valid. Therefore, justice denotes placing things in their rightful place.

Definition of Siayasah Syariah in relation with the role of Ulil Amri There is among of the scholar define Siyasah al Syariyyah in accordance with the role of ruler or ulil amr. Among of them are;-

The Shafie jurists perceived Siyasah Syariyyah as a discretionary power given by the Shariah to the imam or those in power to give a consideration on the principle of maslahah in deciding any matters. According to ibn Taimiyyah, Siyasah Syariyyah is actions taken by the ruler (al Raai) or ulil amr in the interest of people (ummah). Dr. Abd. Rahman Taj defines Siasah Syariyyah as rules and regulations set up by the government in the administration of state and peoples affairs which actually in conformity with the spirit and

Khairol Azri bin Saari, Siyasah Syariyyah : The Practice Of Ex Parte Proceeding In The Syariah Court, at http://jksp.pahang.gov.my/index.php/isu-semasa/97-siyasahsyariyyah-( retrieved 4 April, 2011).

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general principles of Shariah and would realize the ideal of society even if it is not being revealed in the Quran or the Sunnah34.

Who is ulil amr ? al Quran, verse al Nisaa: 59, Allah Almighty says:

Obey Allah and the Messenger and obeyed the Ruler from among you (Ulil amri)

Syeikh Syaltut define ulul amri as those who are really wise be able to study the affairs of the ummah, able to recognize the importance of the ummah and eager to champion the interests of public. Al Mutawalli in his book Mabadi al-Nizam al- Hukum fi alIslam, concluded that Ulul amri embodied two groups;

a). Ulul amri al Diini which consists of members of ijtihad and fatwa;and

b). Ulul amri al Dunniawi was a government that have legislative powers (legislative) and government (executive) 35.

Sheikh Khallaf in his book, Usul al Fiqh Wa Khulasah Tarikh al Tasyri defines the, words "Al Amri" is meant "business". Its covers the general form of religion and world affairs. Ulul amri al Dunniawi consists of kings, chiefs and governors. While Ulul amri al Diini (religion)
34 35

consists

of

members of ijtihad and fatwa members. Some

members

Khairol Azri. Ibid.

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interpreted including Ibn 'Abbas said that Ulul amri in this verse is to scholars, while the other members interpreted was Umara' (leaders) or governors. What is clear from this commentary covers it all must obey them and given to each group. Thus , the obedience to Ulul amri is not absolute and limited. As Rasulullah (PbUH) says: "There is no obedience to creation in disobedience to God (al masiat)" In another Hadith Rasulullah (PbUH) said; "If any of them (the authorities) commands you do not disobedience to God (al masiat), then you do not hear and obey. Based on the above authority, it is maintained that the Religious Council in the Federal Territories has the power to make rule regarding the admission of Syarie lawyer based on the application of the principle of al Siyasah al-Syariyyah. The decision by the National Fatwa Committee of in not accepting the appointment of non-Muslims as Syariah lawyers is apt and should be accepted. Minister in the Prime Ministers Department Datuk Seri Jamil Khir Baharom said that to be a Syarie lawyer, a person had to have indepth knowledge and understanding on Islam to be able to handle Syariah cases properly. The requirement was not confined to just having a degree or qualification in Islamic or Syariah law36.

Conclusion Generally, there is no clear injunction as to the appointment of the non-Muslim as Syarie lawyer. Therefore, the government has the power to make laws in order preserve the public interest and to protect the sanctity of Islam.In addition, whatever argument raised by a Syarie lawyer should be based on the concept of faith and to get the pleasure of Allah.

36

http://my.news.yahoo.com/rejection-non-muslim-syariah-lawyers-fatwa-committee-apt-20101218-212731637.html ( Retrieved, 6 April 2011).

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