Legal Employment – Whether a non-Muslim could be admitted as a Peguam Syarie to repre-sent parties in any proceedings before the Syariah Court in Wilayah Persekutuan, Kuala Lumpur.
Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin and Another  4 CLJ 12
- The appellants were the Majlis Agama Islam Wilayah Persekutuan (‘Majlis’) and the Peguam Negara Malaysia (‘Attorney General’).
- The respondent, a non-Muslim advocate and solicitor, of Christian faith, was a diploma holder in Syariah Law and Practice from the International Islamic University of Malaysia.
- The dispute in question arose when the respondent’s application to the Peguam Syarie Commit-tee for admission as a Peguam Syarie was rejected by the High Court.
- The rejection was on the basis that she did not fulfil the requirement under Rule 10 of the Peguam Syarie Rules 1993 (‘Rules’) which requires the applicant to be a Muslim.
- The High Court held that the “any person” pursuant to Section 59(1) of the Administration of Is-lamic Law (Federal Territories) Act 1993 (the ‘Act’), in their natural meaning amounts to any person regardless of his or her religion as there is nothing in the Act which restricts the meaning to ‘any Muslim’, thereby allowing the admission of non-Muslim as a Peguam Syarie. The Court of Appeal agreed with the findings of the High Court.
- The primary questions posed for determination were whether that part of Rule 10 mandating that only Muslims can be admitted as Peguam Syarie is in conflict with the Act.
Decision: Appeal allowed, decision of Court of Appeal set aside
- Section 59(1) of the Act is a general enabling legislation establishing the right of a Peguam Syarie to appear in the Syariah Courts.
- The term ‘any person having sufficient knowledge of Islamic law’ as found in Section 59(1) is to be read harmoniously with Section 59(2)(a) which provides powers to the Majlis to make rules to provide for the procedures, qualifications and fees for the admission of Peguam Syarie in Wilayah Persekutuan.
- Therefore, the qualification for an applicant to be Muslim (under Rule 10) read together with requirement to possess sufficient knowledge of Islamic law (under Section 59(1)) and the power of Majlis to make admission rules as Peguam Syarie (under Section 59(2)), provides a complete definition as to who may be appointed as a Peguam Syarie for the purposes of the Act.
- The underlying cornerstone behind the Act is faith in Islam and Islamic law. The profession of a Peguam Syarie is based on the concept of Aqidah; the Islamic belief with certainty and conviction in one’s heart and soul in Allah and His divine law.
- Having a Peguam Syarie who professes the religion of Islam, thus is important to achieve the ob-ject of the Act.
- Hence, from the perspective of Syariah, it is fundamentally crucial for a Peguam Syarie to be se-lected among the Muslims, especially only those who have faith in the religion of Islam and who are able to perform their duties with full conviction of that belief.
- As the respondent is a Christian and her faith is surely in conflict with the Muslim Aqidah, the Court of Appeal’s decision is set aside, thereby not allowing non-Muslims to be employed as Peguam Syarie.