New legal regime for syarie lawyersWritten by Salleh Buang
It was indeed glad tidings for syarie lawyers when the Dewan Rakyat recently passed the Syarie Legal Profession (Federal Territories) Bill 2019. It has been a long wait for them — over three decades.
When given the Royal Assent and gazetted into law, the new law will finally establish the Syarie Legal Profession Qualifying Board (Part II of the Act), Badan Peguam Syarie of the Federal Territories and Majlis Peguam Syarie of the Federal Territories (Part VII).
The functions of the Syarie Legal Profession Qualifying Board are set out in section 4, which are to determine the qualifications of persons intending to apply for admission as a Peguam Syarie; and to provide for the course of instruction, training, education, interview and examination by the board for persons intending to apply for admission as a syarie lawyer as well as for continuous professional development.
The membership of the Qualifying Board is stipulated in section 6. Under section 9, the board is empowered to make rules in relation to admission as a syarie lawyer. A syarie lawyer must be at least 21 years old and must be a Muslim (section 9). He must be either a Malaysian citizen or permanent resident, is of good character, has attended and passed the courses of instruction, training, or examination prescribed by the board, and has served the six-month period of pupilage as required under section 13.
An application for admission as a syarie lawyer shall be made to the Syariah High Court (section 15). Upon admission, he must then apply to the Chief Registrar for the issuance of a certificate of Peguam Syarie (section 23). Thereafter, if he wishes to be active in syariah legal practice, he must apply for an Annual Practising Certificate (section 28). If he fulfils all the requirements, including the payment of the prescribed fee, the Chief Registrar will issue the certificate (section 29).
Part V sets out the rights and privileges of a Peguam Syarie, whilst Part VI deals with the esablishment of his firm. Part VII establishes Badan Peguam Syarie and Majlis Peguam Syarie of the Federal Territories. Part VIII deals with professional practice, etiquette, conduct and discipline, whilst Part IX deals with disciplinary proceedings.
The act contains 93 sections spread out in 11 Parts and three Schedules. The First Schedule contains supplementary provisions relating to the Syarie Legal Profession Qualifying Board, the Second Schedule contains supplementary provisions relating to Badan Peguam Syarie and Majlis Peguam Syarie, and the Third Schedule provides for control of property, documents and money of clients.
The act, which is a federal law, applies only to the Federal Territories of Kuala Lumpur, Putrajaya and Labuan. The 13 states will have to table their own enactments modelled on this federal law in their state legislative assemblies if they wish to have a uniform legal regime for syarie lawyers throughout the nation.
Whether that will come about soon or not, much will depend on decisions of the respective state governments and their rulers.
During the winding-up of the debate on the bill in the Dewan Rakyat, Minister in the Prime Minister’s Department Datuk Dr Mujahid Yusof Rawa said that the drafting of the law had received the consent of the Yang di-Pertuan Agong as the head of the Islamic religion for the Federal Territories. After the royal consent was obtained, the bill was presented to the cabinet. It was only after the cabinet had given the green light that the bill was tabled in the Dewan Rakyat.
Until such time the 13 states decide to adopt this new federal law as the model for their own Syarie Legal Profession Enactment, Peguam Syarie in these states will continue to be governed by their current Kaedah-Kaedah Peguam Syarie Negeri.
In Kedah, for example, the relevant law is contained in Peraturan-Peraturan Peguam Syarie Kedah 2016, a subsidiary law passed under Enakmen Mahkamah Syariah Kedah 2008.
It is interesting to note that in the Legal Profession Act 1976 (Act 166), the governing law of the legal profession in West Malaysia, Part II deals with the Legal Profession Qualifying Board whilst Part V deals with the Malaysian Bar, the Bar Council and the State Bar Committees. Part VI deals with professional practice, etiquette, conduct and discipline of advocates and solicitors and Part VII deals with disciplinary proceedings.
There is, therefore, some truth in what a former student, now a senior legal practitioner, told me last week; that there is a remarkable similarity between this new Syarie Legal Profession Act passed by the Dewan Rakyat and Act 166.
I told him the objective is to have a strong and honourable legal profession practising in both civil courts and syariah courts.
Congratulations to Mujahid, Malaysian Muslim Lawyers Association president Datuk Zainul Rijal Abu Bakar and all the syarie lawyers for this significant achievement.
The writer formerly served the Attorney-General’s Chambers before he left for private practice, the corporate sector and academia
Published in: The New Straits Times, Wednesday 31 July 2019