PUTRAJAYA, May 14 ― The Federal Court is set to hear arguments by an Islamic council that fundamental constitutional rights guaranteed to all Malaysians cannot be applied to determine the validity of Islamic laws.
The arguments will be heard in the case where non-Muslim lawyer Victoria Jayaseele Martin is seeking to be admitted as a Shariah lawyer in the federal territories.
Mohd Haniff Khatri Abdulla, a lawyer for Federal Territories Islamic Religious Council (MAIWP) which imposed the Muslim-only rule for Shariah lawyers, said the Islamic council's new argument had never been raised before.
"That provisions of Islamic enactments should not be tested on the fundamental liberty clauses of the Federal Constitution, that point has been raised by us. Because of that, the respondents and the Attorney-General's Chambers want to study that and come out with a considered submission on that," he said.
Victoria's lawyer Ranjit Singh said MAIWP's argument was of great importance, pointing out that the Islamic council was effectively arguing that the country's supreme law does not apply to Muslims.
"To me, it's the biggest, most profound constitutional question, which means the Constitution applies to non-Muslims, but when it comes to Muslims and Muslim laws by the states, the Constitution doesn't apply," Ranjit told reporters here.
The "liberty clauses", contained in Articles 5 to 13 under the Federal Constitution's Part II, covers the fundamental liberties guaranteed to all Malaysians ― including the right to non-discrimination and equality before the law.
In February, the Federal Court wanted both sides to add on the constitutional question of whether the part in 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) are on equality before the law and the right to non-discrimination, while Article 5 and Article 10(1)(c) guarantee the liberty of a person and the freedom to form associations respectively.
The other question of law is whether the Muslim-only rule for Shariah lawyers had gone beyond the scope of the Administration of Islamic Law (Federal Territories) Act 1993.
Due to the new arguments by MAIWP, today's hearing at the Federal Court has been postponed to August 13.
"This is a new point of monumental, constitutional importance, so the court has granted the adjournment so that we can argue this matter fully at a later date and also for the Attorney-General to decide what position he needs to take on this," Ranjit said.
The other judges on the Federal Court's five-man panel headed by Chief Justice Tun Arifin Zakaria are Tan Sri Abdull Hamid Embong, Tan Sri Mohamed Apandi Ali, Datuk Azahar Mohamed and Datuk Zaharah Ibrahim.
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.
The Court of Appeal decided that the part in Rule 10 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 1993.
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.