Only Muslim lawyers can practise in Syariah Courts, rules Federal Court

In a 3-2 majority judgment, the court made the ruling after allowing the appeal by the Federal Territory Islamic Religious Council (MAIWP) and Attorney-General's Chambers (AGC) against the Court of Appeal's landmark ruling which declared that non-Muslim lawyers were eligible to practise as Syariah lawyers in the Syariah courts.

The majority judgment were from Court of Appeal president Tan Sri Md Raus Sharif and federal court judges Tan Sri Ahmad Maarop and Datuk Azahar Mohamed, while Tan Sri Suriyadi Halim Omar and Datuk Zaharah Ibrahim dissented.

The Court of Appeal had overturned a High Court decision which disallowed a judicial review application by a non-Muslim lawyer, Victoria Jayaseele Martin, who was seeking to be admitted as a Syariah lawyer in the Federal Territories.

Martin, 54, had obtained a Diploma in Syariah Law and Practice from the International Islamic University, Malaysia (IIUM) in 2004.

In his 42-page judgment, Justice Md Raus Sharif said having a Syariah lawyer who professed the religion of Islam was important to achieve the objectives of the Administration of Islamic Law (Federal Territories) Act 1993.

"It must be noted that one of the important duties of a Syariah lawyer is to assist the Syariah courts in upholding Syariah law. First and foremost, the profession is based on the concept of Islamic belief in Allah.

"One of the most important criteria which makes an upright and virtuous Syariah lawyer is for the lawyer to have 'aqidah', which means belief with certainty and conviction in one's heart and soul in Allah and His divine law," he said.

Thus, from the perspective of Syariah, the judge said, it was fundamentally crucial for Syariah lawyers to be selected among the Muslims and only those who had faith in the religion of Islam and who were able to perform their duties with full conviction of that belief.

"With due respect to the respondent, she is of the Christian faith. Her faith is surely in conflict with the Muslim 'aqidah'. In that sense, how is she to fulfil her duty to assist the Syariah courts in upholding Syariah law?" said Justice Md Raus.

He explained that it was a common ground that the Syariah Court had jurisdiction only over persons professing the religion of Islam, hence the persons appearing before the court should also be subjected to its jurisdiction.

He said the Syariah Court must be able to enforce its law and rules on a Syariah lawyer, as for instance, when contempt or any breach of the rules was committed by any party.

"Surely, the Syariah Court would not be able to enforce its laws and rules against the respondent, as she is a non-Muslim. The Syariah Court has no jurisdiction over her," said Justice Md Raus.

In the judgment, Justices Md Raus, Ahmad and Azahar found that Rule 10 of the Rules of the Syariah Lawyers 1993 mandating only Muslims could be admitted as Syariah lawyers was not beyond the powers of the Administration of Islamic Law (Federal Territories) Act 1993.