Ali Mohamed, Ashgar Ali
(2020)
Syarie Legal Profession: With Reference to Syarie Legal
Profession (Federal Territories) Act 2019.
The Malaysian Current Law Journal, 4.
v-xx.
ISSN 01270699
Abstract
In Islam, the disputants and their legal representatives are entrusted with the obligation of upholding absolute justice and this is ordained by Allah (swt) in several verses of the Quran. Suffice at this juncture to quote one verse where Allah (swt) proclaims: 'O ye who believe! Stand out firmly for justice, as witnesses to Allah even against yourselves or your parents or your kin and - whether it be (against) rich or poor. For Allah can best protect both. Follow not the lusts (of your hearts) lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.'[1] Success in a trial means success in upholding justice and rendering what is right to the rightful person. A Syarie lawyer representing a disputant is entrusted with the task of assisting the judge in arriving at a just and fair decision irrespective of the outcome of the trial, even if the decision is against the interest of his client. There may be instances where a lawyer's eloquent argument may persuade the judge in making a decision in his favour although his conscience dictates that righteousness was not on his side. In such a situation, the lawyer might have only managed to do an evil act and thus, incurred sin.[2]
Undeniably, the Syarie legal profession is an honourable profession, an essential component of ensuring a fair and just proceeding. The Syarie legal profession is discussed herein with reference to the recently enacted Syarie Legal Profession (Federal Territories) Act 2019, a statute passed by Parliament for the Federal Territories in relation to Syarie matters enumerated in List II of the Ninth Schedule to the Federal Constitution. The Act which obtained the royal assent on 15 November 2019 and gazetted on 29 November 2019, is aimed at enhancing the Syarie legal profession to something similar to the civil system. It allows for the establishment of the Syarie Legal Profession Qualifying Board, Badan Peguam Syarie and Majlis Peguam Syarie. Further, the admission requirements of a Peguam Syarie as well as their professional practice, etiquette, conduct and discipline are also featured therein. It comprises 11 parts with 93 sections and three Schedules, and is largely based on the Legal Profession Act 1976 (Act 166) that regulates the legal profession of the civil courts. It is noteworthy that the 1976 Act also provides, inter alia, for the establishment of the Legal Profession Qualifying Board, the Malaysian Bar, the Bar Council and the State Bar Committees. Further, the Act deals with admission requirements to the Bar as well as the professional practice, etiquette, conduct and discipline of an advocate and solicitor.
At this juncture, it is worthwhile to note that Malaysia administers a mixed legal system or a pluralistic legal system, namely, the common law system and Islamic legal system. The civil courts and the Syariah courts established under the above two systems: respectively are independent of each other. The recognition of the Syariah courts is based on art. 121(1A) of the Federal Constitution which excluded the jurisdiction of the civil courts in respect of matters within the jurisdiction of the Syariah courts.[3] However, the Syariah court's jurisdiction is only over persons professing the religion of Islam or a Muslim[4] and on Muslim personal law and minor offences against the precepts of the religion of Islam under the relevant Syariah Enactments of the States. The head of the Syariah courts is the Chief Syariah Judge,[5] while the Chief Syariah Prosecutor is empowered to institute, conduct or discontinue any proceeding for an offence before a Syariah court.[6]
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