PUTRAJAYA, Feb 4 — The Federal Court said today it wants to decide if an Islamic council’s rule barring non-Muslims from becoming Shariah lawyers in the federal territories is unconstitutional.
In the unprecedented case which will determine if non-Muslim lawyer Victoria Jayaseele Martin is allowed to practise in the Shariah Court, the Federal Court will hear arguments on whether the rule violates the constitutional rights of Malaysians to non-discrimination and equality before the law.
The Federal Court was hearing today arguments on whether the Muslim-only rule had went beyond the scope of the Administration of Islamic Law (Federal Territories) Act 1993, but asked the lawyers for both sides to add on the constitutional question.
“Our answer would not be complete if that was not raised,” Chief Justice Tun Arifin Zakaria, who chaired a five-man panel, said today.
Victoria’s lawyer, Ranjit Singh, later told reporters that the additional question is whether Rule 10 of the Shariah Lawyers Rules 1993 “mandating that only Muslims can be admitted as” Shariah lawyers is in violation of the Federal Constitution’s Article 8 (1), Article 8 (2), Article 5 and Article 10(1)(c) and is thus “void”.
Articles 8 (1) and 8 (2) is on equality before the law and the right to non-discrimination, while Article 5 and Article 10(1)(c) guarantees the liberty of a person and the freedom to form associations respectively.
Victoria, 53, had already won a bid at the Court of Appeal in 2013, but the Federal Territories Islamic Religious Council (MAIWP) and the Attorney-General’s Chambers (AGC) had appealed against the landmark ruling in her favour.
Today, MAIWP’s lead counsel Datuk Sulaiman Abdullah argued that it would be wrong to invalidate Rule 10 as it also lays down other conditions for admission of Shariah lawyers - including requirements for an individual to be a Malaysian who has never been convicted or declared bankrupt and is aged 21 and above.
Among other things, Sulaiman also argued that it is “not unreasonable” for MAIWP to impose restrictions for admission to the Shariah courts, which is stated in the Constitution as only having jurisdiction over Muslims.
Sulaiman raised potential problems in citing non-Muslims for contempt in the Shariah courts, as non-Muslims are not under its jurisdiction.
The hearing was deferred to May 14 to allow lawyers from both sides to prepare arguments on the constitutional point.
Six lawyers including Sulaiman represented MAIWP today, while senior federal counsel Shamsul Bolhassan appeared for the AGC.
Lawyer Rosfinah Rahmat held a watching brief for the Shariah Lawyers Association of Malaysia.
The five-man panel of judges for this case includes Court of Appeal President Tan Sri Md Raus Sharif, Tan Sri Suriyadi Halim Omar, Datuk Azahar Mohamed and Datuk Zaharah Ibrahim.
The legal challenge started when the Shariah Lawyers Committee rejected Victoria’s application to be a Shariah lawyer in the federal territory Kuala Lumpur, saying in a September 9, 2009 letter that she was not a Muslim as required under Rule 10 of the Shariah Lawyers Rules 1993.
With her August 24 application turned down, Victoria filed for judicial review in October 2009, but the High Court dismissed her bid in 2011 and ruled that MAIWP is empowered to impose conditions for the admission of Shariah lawyers - including the Muslim requirement.
But a three-man panel at the Court of Appeal later ruled in her favour, deciding in its June 21, 2013 landmark ruling that non-Muslim lawyers can practise as Shariah lawyers in the federal territories’ Shariah courts.
The Court of Appeal decided that Rule 10 of the Shariah Lawyers Rules 1993, which said that only Muslims can be admitted as Shariah lawyers, exceeds the boundaries of Section 59 of the Administration of Islamic Law (Federal Territories) Act.
Section 59 states that “any person having sufficient knowledge of Islamic Law” may be admitted as a Shariah lawyer in the Shariah courts and does not impose a requirement for the person to be Muslim. But among other things, it states that the religious council may make rules governing “procedure, qualifications and fees for the admission of” of Shariah lawyers, subject to the Yang Di-Pertuan Agong’s approval.
Victoria received a diploma in Shariah Laws and Practice from the International Islamic University of Malaysia in 2004.
She also holds a Masters in Comparative Laws from the same university, a degree which widely covers Islamic laws and which she obtained a few years ago.