Lawyers back
separate Shariah Bar for better practice
BY BOO
SU-LYN AND IDA LIM
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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