SYARIAH COURT

MEMBERS OF GROUP FIVE

Introduction
Islamic Law and Malay Customs Federal Constitution Enhancement of Syariah Judicial Status Structure and Appointment Jurisdiction

THE ROLE OF SYARIAH JUDICIARY IN THE ADMINISTRATION OF THE MUSLIM LAW

Introduction
Article 3 of the Federal State Legislatures are empowered to enact the law dual parallel justice systems all matters pertaining to Islamic law and Muslims shall only be heard in the Syariah court Civil and Criminal law are within the Federal Governments jurisdiction, except on criminal offences, which effect Muslims as listed in the State List. The rules of Syariah are sets by various sultans, who serve as Head of the Islamic religion in their respective states

Islamic Law and Malay Customs

Shaik Abdul Latif & Others v Shaik Eliasd Bux (1915) 1 FM SLR 204. Ramah v Laton (1927) 6 FMSLR 128. The majority of Court of Appeal in the Malay States
held that Islamic law is not a foreign law but it is the law of the land. Therefore, it is the duty of the courts to declare and apply the law and it is not competent for the courts to take evidence on what the Islamic law is.

judges of the civil courts felt that they were incompetent to deal with the questions of Islamic law ___power to refer questions of Islamic law and Malay customs to the State Executive Council of the various states in Malaysia.

The Determination of Muslim Law Enactment 1930 gave this power but it was terminated when the legislation for the administration of Muslim law was enacted in the States and the Syariah Courts is set up to deal with cases under the enactments.

a dual system of courts was set up in West Malaysia that is the Civil Court and the Syariah Courts.

The Courts Ordinance 1948 (No. 43 of 1948) removed the Syariah Courts from the structure of courts under the Ordinance and they ceased to be federal courts

Federal Constitution
Position of the Syariah Judges and the officers were truly subordinate before the independence and while the Malay States is still under the influence of the British when Malaysia achieved the independence Federal List in the 9th Schedule of the FC State List in 9th Schedule of the FC

1. from the State List, we can observe that the jurisdiction given to the State and the Syariah Courts is very limited. 2. succession, testate and intestate, the account had to be taken of the Probate and Administration Act 1959 and the Small Estates (Distribution) Act 1955 with the result the Kadhi is only given the function of certifying the allotted shares as per the faraid.

3. in the field of criminal jurisdiction, Syariah Courts only has jurisdiction over the persons professing the religion of Islam and in respect of offences as conferred by Ninth Schedule in List II of the Federal Constitution.

 Up until 1984, the Muslim Courts (Criminal Jurisdiction) Act 1965 - such jurisdictions should not be exercised in respect of punishable with imprisonment not exceeding 6 months or fine not exceeding RM1000, 00 or with both Amended on 1984, Muslim Courts Act 1984s has been extended by giving them the power to deal with cases punishable up to three years or fine up to RM5000 or whipping up to six strokes or the combination of all these.

 Syariah Courts case decisions had high possibilities to be overridden with the decisions of the civil court. Example: jurisdiction of the Kadi Besar s. 45(6) of Selangor Administration of Muslim Law Enactment 1952

 decisions of the Civil Courts would prevail over the decisions of the Syariah Courts and the rulings of the Mufti, Parliament had amended Article 121 of the Federal Constitution - Civil Courts shall not exercise jurisdiction in a case where the Syariah Court has been given jurisdiction

 Mohamed Habibullah v Faridah (1992) 2 MLJ 793. Lim Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang (1996) 3 CLJ 231

Enhancement of Syariah Judicial Status

Committee under the Chairmanship of the late Tan Sri Syed Nasir Ismail : 1. Syariah Court should be separated from the Council of Muslim Religion in the States and be independent 2. Steps must be taken to improve the training and recruitment of the Syariah judicial and legal officers 3. Some steps must be also taken in order to improve the facilities in the Syariah Courts especially in regards to the Court building, supporting staff and the facilities. Government generally accepted

Structure and Appointment

Syariah Courts with a three-tiered court system, namely the Syariah High Court, the Syariah Subordinate Court and the Syariah Appeal Court. The Chief Syariah Judge is the head of the Syariah Courts and the Chief Syariah Prosecutor has the power to institute, conduct or discontinue any proceeding for an offence before a Syariah Court.

 The Sultan upon the advice of the Majlis may appoint the Chief Syariah Judge, the Judges of Syariah Appeal Court, and the Judges of Syariah High Courts. The other appointment other than Chief Syariah Judge, the Majlis will consult the Chief Syariah Judge. The Judges are appoints with the requirements of being familiar with the knowledge of Islamic principles and law

Jurisdiction
s.2 of the said Act, the Muslim Courts (Criminal Jurisdiction) Act 1965 [Act 23/65]

Duties and responsibilities of the judges, prosecutors and shariah counsel

 Syariah lawyers, means a lawyer who represents his clients in any case such as civil cases, criminal, or other that lies under the jurisdiction of the Syariah Court. Majlis Agama Islam may admit any person having sufficient knowledge of Islamic Law to be Peguam Syarie to represent parties in any proceedings before the Syariah Court Syariah lawyers in the Syariah Court is based on the principle of bi al-khusumah wakalah . Wakalah, is an Arabic word meaning to keep, complete and submit. When someone is said to be `representative' its means a person is a guardian, guarantor or complementary or handed him a case to do.Wakalah bi al-khusumah is the person representing another person in the course of prosecution and claims before a judge, either in court proceedings or matters relating to the disputed case

 Syariah lawyers have a particular task and its main task is to represent the parties involved in the hearing to attend on their behalf, to defend customer orally or in writing the shariah lawyers have the responsibility to assist the court to uphold justice by putting the right to those who deserved it. Legal Profession (Practice & Etiquette) 1978 laid down minimum standards of conduct yo the advocate and solicitors. The conduct of the shariah officers like the judges, prosecuters and the shariah counsel are govern by the Shariah Lawyers Codes of Ethics. It was developed by the Department of Syariah Judiciary (JKSM) and was published 2002 and expected to be applied to all the sharaih lawyers and prosecuters. The Peguam Syarie Ethics Code produced by JKSM was a modified and simplified version of the Bar Councils Legal Profession (Practice and Etiquette) Rules 1978 (LPPER) and it had to be further modified to take into account the modern publicity (i.e., advertising) rules adopted by the Bar Council. So, there are similarities between civil and shariah ethical standard as well as the differences.

 The purpose of this Code is to preserve ethics in general which is to the profession, to the client and to justice. The lawyers have to adpot and adhere the modes of practice which are fair and just several principles of shariah adcocatory:
good behavior and character, sincere, honest and trustworthy, not to accept bribe, not to waive any right of his client without his permission and to seek knowledge continously.

 Section 3 of the Code explianed about the good behaviour. Attitude and character that the shariah lawyers should have. This provision states that Syariah lawyers must have morals, attitudes and behaviors that honor,and in carrying out the duties and role must be trustworthy, honestand in good faith to uphold justice. The lawyers also shall acting with ail due courtesy, fearlessly uphold the interest of his client, theinterest of justice and dignity of the profession without regards to any unpleasant consequenceseither to him or to any other person. Besides that, they have the duty to act with diligence and competence. They are required to complete any work as soon as is reasonably possible and required to inform the client if they are not possible to do so. It is clear as stated in Rule 6 where the lawyers is not requires to represent if unable to appear on behalf oh his client. This is impirtant to avoid unnecesary works because they hold moral responsibility.

 Rule 16 LEPPER: to conduct with candour, courtesy and fairness Rule 42 LEPPER: the duties and responsibilities not to communicate with client of another shariah lawyer Rule 54 : the lawyers should not appear for party represented by another lawyer Rule 23: is is clear stated that the lawyers have the duty of disclosure. They gave to supply to the court all the information as to the probable length of a case and possibiity of a settlement. Rule 25: prohibited from concealment of fact Rule 26: not to mislead. Any information given by the lawyers should be reliable and not misleading. Rule 35 : confidentiality

 In most states, the chief Syariah prosecutor is appointed by the sultan on the advice of the Majlis Agama Islam. The qualifications for the chief Syariah prosecutor generally must be equal to that of a Syariah high court judge. In most states, the Majlis Agama Islam is supposed to appoint fit and proper persons to serve as Syariah prosecutors who can assist the chief Syariah prosecutor (Section 58 of the Administration of Islamic Law (Federal Territories) Act 1993, Act 505 of 1993) All of Malaysias states (and the Federal Territories) have a chief Syariah prosecutor with discretionary power over all prosecutions for violation of the states Islamic criminal codes. He is assisted in his work by assistant Syariah prosecutors. The chief Syariah prosecutor makes decisions about prosecutions based on the investigation conducted by a special Syariah enforcement agency that is run by the state. However, decisions on whether to prosecute a particular case are ultimately made by the chief Syariah prosecutor.

 The duties and responsibilities of the judges in shariah court has been discussed in the Kod Etika Hakim Sharie. This code laid down the duties of the sharie judges in and out of the court. This Code of Ethics shall apply to a Judge during service time. The violation of any provision of this Code by the judge, he shall be convicted of an offence. Section 3: ethical codes of the sharie judges outside the shariah court.
cannot behave in such a manner that may cause reasonable suspicion that he has allowed his personal interests conflict with judicial duties to the detriment of his position as a Judge, or he used on his judicial position for his benefit. The judge did not allowed to behave dishonestly or in such a manner as that may aggravate or worsen or discredit Court Shariah. the judge have the duty not to mix freely with the public in a way that raises suspicion about her ability to be fair in the judicial task and accept any gift, when a gift is in any way connected with the implementation of judicial duties or involve in other irrelevant matter like stated in the code.
others

 Section 4: responsibility to behave in such a good manner in the court where a judge is in the Court and hearing case
he shall administer justice as required by Islamic Law, carrying out their duties in accordance with and give judgment based on the relevant laws, do not try any case in which the parties involved are enemies or other person who is likely to influence the judicial task as a Judge, ensuring that the proceedings in the Court conducted properly according to the rules of Court and control the situation so that the trial could run smooth and others. others

 Section 6: The judge in deciding the case in court cannot delay the giving of the judgement without reasonable reason. Section 7: The judge also have to declare all his assets to the Chief Judge in accordance with the applicable regulations at the time of his appoinment as judge or at any time

Lawyer from Islamic perspective

 During the Muhammad s.a.w period, lawyer is considered as an important part in society. For example, Sayyidina Ali released a woman from being charge of adultery after she confess that shes committing adultery. This shows that, the role of lawyer exist since early period of times. Lawyer from the Islamic perspective, hold the responsibility to carry out justice among society, even so to provide equal punishment commit by the accuser. Therefore, the objectives of obtaining justice are able to be accomplished in time. Basically, syarie lawyer is a person defending their clients in syariah court according to the branches. Usually, their clients are hoping for a full service from their lawyer. Therefore, the competencies of the Syarie Lawyer are essential in order to carry out Muslim law, where the message from the divine sources able to be translated. Therefore, Muslim lawyer must carry out their duty to provide fairness to the parties in disputes. As for the matter, roles of the Muslim lawyer is to promote justice and to fight injustice.

 Syariah and Islamic Law are provided as a Muslim guideline in order to promote justice. Islam also promote rights of individual. Ones are given the right to protect themselves from committing any offences. Islam will not tolerate in promoting justice. Muslim God, Allah said Say it (Muhammad): I swear to all holy book provided by Allah and I was ordered to provide fairness among you (surah As Syura: 15). Even though, the word is pointed to Muslim Prophet, Muhammad, but the concept our fairness are widely translated to the whole humankind. The role of justice are including trial, heard, case, fact, statement while in proceeding. Becoming fair in all conduct is essential in Islam.

Other than that, syarie serve truth, Syarie also serves against all forms of oppression. This is because Islamic law is intended to provide justice and avoid injustice, individual interests must be protected as well as the interests of society, individual rights are guaranteed, protected and defended, and every violation and injustice should be avoided and eliminated. Word of God says: "And Allah S.w.t likes not the transgressors" (Sura A-li Imran: 57). Thus, the Quranic verses that explain how Islam abhors violence in all forms of tyranny must be eradicated and removed. As was explained that Allah ordered Mutlaq upheld justice, injustice eradicated and thus eliminated. More away from it, Islam also forbids us from helping the people in the act cruelly unjust.

By referring to the word of Allah, "We have sent down to you (O Muhammad) the Book (the Qur'an) in truth, that you may judge between people by that which Allah has shown (through revelation), and do not be an advocate for those who commit treason" ( Surah An-Nisaa: 105). This verse clearly states that we should punish based on God's law, because this law is the guarantee of justice. At the same time, we are prohibited from defending the wrong people. Based on the above verse, it clearly stated Islam not only against the tyranny but are also against the acts and actions aimed at helping people who want to continue the cruel tyranny, to help them, then do injustice, sympathetic, conspired and agreed with tyrants is illegal. Islamic attitude towards those who defend this injustice is clear that such acts are sinful and cruel. In having foundations to stand for justice and oppose all forms of injustice, with the syariah lawyers have a great role in the Court. Syarie duties as officers of the Court are to assist the Court in order to punish a fair, accurate and effective.

Lawyer in Syariah Court

 As the law concern, jurisdiction and administration of syariah court depended on the state. It is fall under Federal Constitution that conferred the power of administration of religion including syariah court under the Rulers except for Federal Territories, Sabah, Sarawak, Penang and Melaka. Therefore, the conditions to become the lawyer in syariah court might different from one state to other.

 In these Act, Syarie lawyer be mention as Peguam Syarie. Peguam Syarie is the person who be given by the right by any rule in any state to appear and represent his client in syariah court, Appeal Syariah court. Thus it is same as a civil lawyer who is given right to represent his client and to appear before a judge to presenting case. For the purpose of research, it would like to refer Section 59 of the Act under subsection 1, subject to subsection 2, Majlis may admit any person who has sufficient Islamic knowledge to become a Peguam Syarie to represent parties in court. Majlis with the approval of Yang DiPertuan Agong may make rules for the procedure, qualification, and fees for the admission of Peguam Syarie and to regulate, control and supervise the conduct of peguam Syarie. Majlis here is defined as mention in section 2 as Majlis Agama Islam Wilayah Persekutuan.

The competency to become syarie lawyer

FEDERAL TERRITORIES
Rule 10, Rule of Syarie lawyer 1993 (P.U. (A) 408/1993) Administration Of Islamic Law (Federal Territories) 1993 Lay down criteria to be qualified as syarie lawyer. First, he must be a Muslim and pass the final examination which lead to the certificate of the Bachelor in Syariah from any university or any Islamic education institution recognized by the Government of Malaysia, or second he must be a Muslim member of the judicial and legal service of the Federation, or thirdly he is a Muslim advocate and solicitor enrolled under the Legal Profession Act 1976, or forth, the person has served as a Syariah Judge or as a Kadhi with any State Government in Malaysia for a period of not less than seven years. In addition he need to attained the age of twenty-one years, good behavior, never be convicted in Malaysia or any elsewhere of any criminal offence, he has never been adjudged a bankrupt, Malaysian and an advocate and solicitor, has passed the syarie lawyer examination.

SELANGOR
Section 80 Enakmen Pentadbiran Agama Islam Negeri Selangor 2003 Under this section, it has laid down the condition to be appointed as a syarie lawyer. Under subsection (2), (3) and (4), Majlis can accept any person who has knowledge in the Islamic law to represent the party in the court proceeding. Under subsection 2, Majlis can make the rule under the assent of Sultan to make a rule regarding the qualification, fee and procedure of admission as syarie lawyer. In addition in subsection (b) it gives the power to Majlis to make the rule to control the action and behavior of Peguam Syarie. However, in section 80(3) it stated any of member of Judiciary and Legislative Service and person appointed under section 3 of Legal Bureau 1971 may be appear representing party in the Syariah Court.

TERENGGANU
In Terengganu, there is no qualifying board or Peguam Syarie committee established under its rules, instead it is the Majlis (State Religious Council) itself which ensures compliance with the rules. According to r. 3 of Peguam Syarie Rules in 1987, no person is allowed to appear as a Syarie lawyer in any Syariah Court in Terengganu unless he has been issued a certificate as a Syarie lawyer. To apply for such certificate, the applicant must have the following attributes and/or qualifications which stated under rule 5 1) has a good personality; 2) resides in Malaysia; 3) is a Muslim; 4) has knowledge in Hukum Syara; 5) has been conferred authority to teach the Islamic religion in the state or any state in Malaysia or has obtained a Degree or Diploma from an Islamic University or any university or college; 6) is conversant in Bahasa Malaysia; 7) has basic knowledge concerning Court procedure.

KEDAH
The Peguam Syarie Rules, 1988 of Kedah are somewhat similar to the Johor Peguam Syarie Rules, 1982 except that in the definition of a qualified person express specification is made that each category of person should be a Muslim. There is also an additional category of a qualified person, namely: "a person who has served in the field of prosecution and has been affirmed by the Kedah Religious Affairs Department and consented to by the Sultan of Kedah for a period of not less than three(3) years. Therefore, unlike other states, Syarie prosecutors are also qualified to apply in Kedah. A noteworthy feature in the Kedah rules is that under the definition of qualified person and r. 9, all the categories of qualified persons must have passed the Peguam Syarie exam. The rest of the procedure to obtain the Peguam Syarie Certificate is similar to other states but a notable difference is the registration fee of RM 120 to obtain the certificate, which is relatively expensive if compared to other states.In Kedah also, there is no requirement that a Syarie lawyer be admitted in the Syariah High Court.

KELANTAN
Kelantan Peguam Syarie Rules, 1988
The word qualified person is defined with reference to s. 18(2) of the Administration of Syariah Court Enactment 1982. Under the said Enactment, those who are considered qualified to apply to become Syarie lawyers in Kelantan are: (a) Those who hold a Degree in Syariah from any institution of higher learning recognized by the Government; or (b) Those who have served as a Syariah Judge for a period of not less than 10 years. From the above, it is apparent that the categories of persons who can actually apply to become Syarie lawyers are strictly narrow and there is no mention of advocates and solicitors. Stress is instead placed on academic qualifications in the Syariah or vast experience as a Syariah Judge. Indeed, Kelantan has the strictest qualifications compared to other states. It is also an express requirement that the qualified applicant should be a Malaysian muslim who has reached the age of twenty-one(21) and has not been convicted of any criminal offence.

PAHANG
. The requirements to become a Syarie lawyer in Pahang is a combination of the requirements in Johor, Selangor and Kuala Lumpur. Rule 9 provides (to the effect) that the applicant must fulfill the following requirements: (i) is a Muslim and has passed the final examination leading to a Degree in Syariah from Al-Azhar University or any Islamic institution of higher learning recognised by the Malaysian or state government; or (ii) is a Muslim advocate and solicitor registered under the Legal Profession Act, 1976; or (iii) has served as a Syariah Judge with any state government in Malaysian for not less than seven (7) years. (b) has attained 21 years of age. (c) is of good conduct and (i) has never been convicted in Malaysia or elsewhere for any criminal offence; and (ii) has never been adjudged a bankrupt; (d) is a citizen or a permanent resident of Malaysia; (e) as an advocate and solicitor, has passed the Peguam Syariah Certificate examination.

CASE
Victoria Jayaseele Martin v Majlis Agama Islam Wilayah Persekutuan & Anor (2011) 7 CLJ 233
This case is about the rejection application toward applicant to become a Syarie Lawyer. The ground of rejection is applicant not professed Islam and it is against rule 10 of the Peguam Syarie Rule 1993 mandating only Muslim can be admitted as a syarie lawyer. Argument here are (i) whether rule 10 is ultra vires to Administration of Islamic Law (Federal Territories) Act 1993, (ii) whether said provision is in contravention of article 8(1) and/ or article 8 (2) and/ or article (5) and/or art 10(1)(c) of the Federal Constitution therefore void. Argument here are (i) whether rule 10 is ultra vires to Administration of Islamic Law (Federal Territories) Act 1993, (ii) whether said provision is in contravention of article 8(1) and/ or article 8 (2) and/ or article (5) and/or art 10(1)(c) of the Federal Constitution therefore void.

 HELD: the needed for applicant to have knowledge in Islamic because it will deal with the Islamic Religion matter. Therefore we can conclude that under Federal Territories, it is needed that the person should be a Muslim and it is discretionary power of Majlis to lay down the conditions that may fit and relevant to govern the profession.

Book: Ahmad Mohamed Ibrahim and Abdul Monir Yaacob, eds., The Administration of Islamic Laws: Syariah Courts in Malaysia: Past, Present and Future by Abdul Monir Yaacob (Malaysia: Institute of Islamic Understanding Malaysia, 1997) 21-38. Farid Sufian Shuaib, Tajul Aris Ahmad Bustami and Moh Hisham Mohd Kamal, Administration of Islamic Law in Malaysia, Text and Material: Chapter 5; Administration of Syariah Courts (Malaysia: Lexis Nexis, 2nd Edi), 385-433. Ong Kok Bin, The Civil Court in Action: The Judicial System of Malaysia; The Syariah Court (Malaysia: Pelanduk Publications M Sdn Bhd, 1995), 21. The Malaysian Legal System: The Syariah Courts (Malaysia) 43-53. Online sources: http://www2.esyariah.gov.my/esyariah/mal/portalv1/enakmen/Federal_PU_Original.nsf/86f5b60153c338334 82572f9002af07d/254c084824fdc1d04825703d00026675?OpenDocument (accessed on 1st October 2012) Sharifah Zubaidah bt Syed Muhammad Kader.How to Become Syarie Lawyer. [1995]1 CLJ cxlix (Feb). http://www.cljlaw.com.eserv.uum.edu.my/membersentry/articlesdisplayformat.asp?A_1995_30;lawye r%2Bsyariah%2Bcourt (accessed on 1st October 2012) http://www.esyariah.gov.my/portal/page/portal/Portal%20E-Syariah%20BI/Portal%20ESyariah%20Permohonan%20Peguam/Portal%20E-Syariah%20Peguam%20Syarie%20WP/Portal%20ESyariah%20Peguam%20Syarie%20Kedah (accessed on 1st October 2012)

Section from a Book: Abdul Monir Yaacob, Shariah Courts in Malaysia: Past, Present and Future in The Administration of Islamic Laws: Administration of Syariah Courts, eds., Ahmad Ibrahim & Abdul Monir Yaacob, 389 (Malaysia: IKIM, 1997). Ahmad Ibrahim, The Future of the Syariah and the Syariah Courts in Malaysia in The Administration of Islamic Laws: Administration of Syariah Courts, eds., Ahmad Ibrahim & Abdul Monir Yaacob, 394 (Malaysia: IKIM, 1997). Ahmad Ibrahim and Ahilemah Joned, The Malaysian Legal System 2nd Ed 1995 in The Administration of Islamic Laws: Administration of Syariah Courts, eds., Ahmad Ibrahim & Abdul Monir Yaacob, 398 (Malaysia: IKIM, 1997). Journal Article: Ahmad Ibrahim, Islamic Law in the Syariah Courts IIUM Law Journal, no. 6(1998): 143. Ashgar Ali Ali Mohamed and Ahmad Ibrahim, Professing Religion of Islam as the Requirement to be a Sharie Lawyer: With Reference to the Case of Victoria Jayaseele Martin v Majlis Agama Islam Wilayah Persekutuan & Anor , No. 3 ShLR [2012]: xx. Nik Ahmad Kamal Nik Mahmod, The Jurisdiction of the Syariah Court-A Comparative Study IIUM Law Journal, no. 3(1) (1993): 53. Paizah Hj. Ismail, Pentadbiran Undang-Undang Jenayah Islam di Malaysia Jurnal Syariah, No 1(2) (1993): 299.

REFERENCES
Statutes Enakmen Pentadbiran Agama Negeri Selangor 2003 Administration of Islamic law (Federal Territories) 1993 Peguam Syarie Rules 1987 Peguam Syarie Rules in 1987 Peraturan-peraturan peguam syarie 1995

Cases Victoria Jayaseele Martin v Majlis Agama Islam Wilayah Persekutuan & Anor. (2011) 7 CLJ 233 Mohamed Habibullah v Faridah (1992) 2 MLJ 793. Lim Chan Seng v Pengarah Jabatan Agama Islam Pulau Pinang (1996) 3 CLJ 231 Shaik Abdul Latif & Others v Shaik Eliasd Bux (1915) 1 FM SLR 204. Ramah v Laton (1927) 6 FMSLR 128.