What makes a syarie lawyer?

Tuesday June 8, 2010
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.