Thursday, December 8, 2016

Lawyers back separate Shariah Bar for better practice

Lawyers back separate Shariah Bar for better practice


Thursday December 1, 2016

05:47 PM GMT+8

KUALA LUMPUR, Dec 1 — Some lawyers are in support of a proposal to create a separate Bar in order to standardise Shariah legal practice across the country.

Nizam Bashir is both a civil and Shariah lawyer and said that while Islamic legislation can differ from state to state because of various communal sensibilities on the faith, Shariah legal practice and procedures should be more uniform.

“I think it’s a good thing. You will have a more consistent practice for Shariah lawyers in various states,” Nizam told Malay Mail Online.

But he also said the introduction of a federal Shariah legal body amid state legislations would require the consent of the Rulers and agreement from the state governments. While civil law is federal, Shariah legislation is under state jurisdiction.

Wanita Umno chief Tan Sri Shahrizat Abd Jalil suggested yesterday at the Umno general assembly the formation of a Bar Council equivalent for Shariah lawyers, which she said should be administered by the Conference of Rulers.

Shariah Lawyers Association of Malaysia (PGSM) president Musa Awang also supported the formation of a Shariah Bar Council as there would then be uniform qualification rules, pointing out that various states in the country have different admission method, exams and interviews for those who want to be Shariah lawyers.

“When they submit [an] application to be [a] Shariah lawyer, the authorities will call them for exam and interview, but that is for [one] state.

“So the person who wants to be Shariah lawyer needs to apply to 14 states in Malaysia and it depends on state authorities, whether they want to approve [the application],” Musa told Malay Mail Online, referring to the Islamic religious council in each state.

With the current lack of uniformity, this would mean that Shariah lawyers may not be able to practise in some states due to rejection of their applications by the respective state Islamic religious councils, he said.

He pointed out that the Bar Council, on the other hand, is an independent body formed under the Legal Profession Act 1976 that regulates and determines the qualifications, tests, and admissions for advocates and solicitors to the Malaysian Bar, the legal professional body for all states in peninsular Malaysia.

Musa highlighted the need for a separate Shariah Bar so that Shariah lawyers who are not members of the Malaysian Bar can still be regulated.

As an example, he said Shariah lawyers who are suspended for breaching ethics in one state can still practise in other states. In contrast, civil lawyers who are suspended from legal practice by the Malaysian Bar would not be able to practise at all in the peninsula.

A Shariah Bar Council should be established as an independent body like the Bar Council to regulate the qualifications, admission and discipline of Shariah lawyers, he said.

Nizam said setting up a separate Bar for Shariah lawyers would also require segregating the disciplinary and complaints mechanism, noting that the Advocates & Solicitors Disciplinary Board (ASDB) has taken on complaints by Shariah clients as more Shariah lawyers join the Malaysian Bar.

“I’ve known of cases where it went up before the civil courts and they said the ASDB has got jurisdiction to hear. If you start to come up with a separate body to regulate and oversee Shariah practitioners, then I think ideally, we need to look at if there needs to be a separate disciplinary board,” he said.

Nizam acknowledged there was fear on both sides of the fence and concern on whether civil law was losing ground to Islamic legislation, but said lawyers should not be “paranoid” and “embrace diversity” instead.

“I encourage civil lawyers going to Shariah and vice versa. That way, you’re not dogmatic,” he said.

He stressed that lawyers should be able to sit in both the Malaysian Bar and the Shariah Bar in order to contribute their experience and expertise to both areas.

Malaysian Muslim Lawyers Association president Datuk Zainul Rijal Abu Bakar said not all Shariah lawyers are members of the Malaysian Bar as the majority are Shariah graduates who do not have a law degree. Only some are advocates and solicitors who can practice in both the civil and Shariah courts.

PGSM estimated there are about 2,500 to 3,000 Shariah lawyers nationwide. The Malaysian Bar currently has about 17,000 members.

“Only advocates and solicitors can contest in the Bar Council. Pure Shariah lawyers cannot contest,” Zainul Rijal told Malay Mail Online.

He said the Bar Council Shariah law committee cannot handle issues involving practitioners who are not advocates and solicitors, including “pure” Shariah lawyers.

“To me, different qualifications are prerogatives of the states. However, the more pressing needs are to have a body at the national level so that the body will be able to enhance legal education, take action on disciplinary breaches, admission process and interactions between practitioners across the nation,” said Zainul Rijal.

He said creating a Shariah Bar would not result in divisions as both the Shariah and Malaysian Bar would have different objectives.

“An advocate and solicitor who is also a Shariah lawyer will be governed by [the] Malaysian Bar when he is practising the civil law and governed by the Shariah Bar when he practices in Shariah law,” he said.

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