900410145450 AIKOL “Legal Writing Competition” 2010

AN ARTICLE ON:
CAN NON-MUSLIMS BE SHAR'IE LAWYER?
By Nadra Fatima binti Mannan, 1016122

In the era of modernization throughout the world in the race with a pace of ups
and downs of globalization, there are many revolution and modification from a game
of football, technology and even jurisprudence that have puzzled and systemized us in
many years. Yet the conflict still exist which indirectly proportional to the rate of
globalization as each day is triggered with a problem to be solved. Even Shariah law
is not excluded from this progression as recently a case in Malaysia of non-Muslim
Indian women challenged ruling that only Muslim lawyers are allowed to practice at
Shariah Court1 which has make us ponder as could it be possible for such resolution
towards the new reformation of Shariah law?

From the eyes and minds of lay persons might responded negative to this case
without revising the historical formulations of Shariah law and depth research about
this case. Moreover, this is the first test case in Kuala Lumpur of a non-Muslim
lawyer being given leave to challenge the ruling that only Muslim lawyers are
allowed to practice at the Shariah court. On the contrary to that thought, I strongly
believe it is possible for non-Muslims to be Shar‟ie lawyer but yet must according to
guidelines and procedure of Shariah law.

Before I justify in affirming my statement on this particular matter, it is

important to seek clarification first by finding out with general questions such as:

 Who is classified as non-Muslim in perspective of Islam?

 How is the implementation of Shariah law in Malaysia? And also;
 What is the role of a Shar‟ie lawyer and its criteria?

1
Bernama, “Jayaseele‟s bid to be heard Nov 2,” Newstraitstimes, 12 July, 2010, via Newstraitstimes,
<http://www.nst.com.my/nst/articles/Jayaseele__8217_sbidtobeheardNov2/Article/>

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Non-Muslim can be simply classified as the unbeliever of Islam or someone

whose religion is other than Islam like Christian, Hindu, Buddha, Jews etc. There are
many verses in Qur‟an pertaining on unbelievers of Islam and one of examples is:

“56 We only send the messengers to give Glad Tidings and to give warnings: but the
Unbelievers dispute with vain argument, in order therewith to weaken the truth, and
they treat My Signs as a jest, as also the fact they are warned! 57 And who does more
wrong than one is reminded of the Signs of his Lord, but turns away from them,
forgetting the (deeds) which his hands have sent forth?”
(Surah Al-Kahf: 18, 56-57)2

Thus, it is a doubtful decision to allow non-Muslim to be Shar‟ie lawyer when it

is clearly said in the Qur‟an that they cannot be trusted and have plotted a plan against
Muslim or a scheme of „if you can beat 'em, join 'em‟ which all the Muslim must
cautious of it. However, according to Dr. Said Ramadan expressed a different view
that Islam considers non-Muslims under two categories3:

1) Those who settle within the territorial limits of the Islamic State, and
whose status is to be determined by a kind of socio-political contract
which is called aqh al-dhimmah. This literally means “a contract the
fulfillment of which is a pledge upon the conscience of the
community.” Once this contract is concluded, the contractees become
basically entitled to equal and reciprocal rights and duties. This, in our
opinion, grants non-Muslim citizens a status that corresponds with the
modern conception of nationality. In other words, they are full
subjects of the Islamic State.
2) Those who enter Islamic State for a limited period, and whose status is
subject to the regulations and conditions upon which the permission of
sojourn is granted. Neither in the Qur‟an nor in the Sunnah is there any
text against the granting of such permission. On the contrary, there are
precedents of non-Muslim foreigners visiting Madinah in the Prophet
himself.4 Even with regard to subjects of a belligerent state, the
principles of Islam ordain their full protection once an a-posteriori
permission of sojourn has been granted and the bona fides of the
visitors has been established. In the early Islamic State, with its

2
‘Abdullah Yusuf „Ali, The Meaning of Holy Qur‟an: Complete Translation with Selected Notes,
(Kuala Lumpur: Islamic Book Trust, 2006), 296-297.
3
Dr Said Ramadan, Islamic Law: Its Scope and Equity, (Kuala Lumpur: Muslim Youth Movement of
Malaysia, 1992), 119-120.
4
Al-Bukhari, Kitab al-Buyu', (n.d.), (n.p.).

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primitive state of affairs, the permission of sojourn could even be

given by individual citizens and thereby became binding upon the
State; this, however, was later developed by Muslim jurists. Sojourners
were termed by the Prophet “holders of a covenant of protection,” 5
and they were granted, as a rule, the right to live according their
religious code.

In other means, Shariah law is applied to every Homo sapiens including the
non-Muslims with their rights and freedom of their religion within Islamic State.
Nevertheless, this matter has lead to the other question concerning ways of
implementation of Shariah law in Malaysia. Indeed referring to Article 3 of the
Federal Constitution provides that Islam is the religion of the Federation; but other
religions may be practiced in peace and harmony in any part of the Federation and
also with an emphasize in article 11 provides every person has the right to profess and
practice his religion and, subject to clause (4), to propagate it. However, Article 4
declared the Federal Constitution is the Supreme law of the Federation and Article
160 does not include Islamic law in its definition of law which shown Malaysia is not
an Islamic State, but practicing Islamic law (with limitation on certain areas and
jurisdiction as stated the Ninth Schedule, List II – State List of the Federal
Constitution). Generally, the application of Islamic law has been limited to6:

a) Muslims; and
b) Three areas: family law, inheritance and some matrimonial and ta‟azir
offence.

Therefore, it can be seen as opportunities to expand Shariah law throughout

non-Muslims as can be indicated their acceptance on Shariah law like Victoria
Jayaseele Martin7 who is so hesitated to proclaim her rights to be a Shar‟ie lawyer by
referring Article 5 (Liberty of the person), 8 (Equality) and 10 (Freedom of speech,
assembly and association) of Federal Constitution. Probably this is the time to
relinquish the minds of non-Muslims from unfair discrimination and injustice in

5
Al-Shawkani, Nayl al-Awtar, (n.d), vol. 7, 14.
6
Ahmad Ibrahim, Ahilemah Joned,, The Malaysian Legal System, 2nd edn, Dewan Bahasa dan
Pustaka, 1995, at 46-47.
7
Bernama, “Jayaseele‟s bid to be heard Nov 2,” Newstraitstimes, 12 July, 2010, via Newstraitstimes,
<http://www.nst.com.my/nst/articles/Jayaseele__8217_sbidtobeheardNov2/Article/>

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Islamic law. This is due to most of the Malay customs are coherent to Islamic law and
doctrine causes non-Malays reluctant to accept it as they also wanted to be able
inherited their diverse cultures and custom. Indirectly, the Muslims can propagate the
belief of Islam which does not contravene the Article 11. Besides that, it might be a
catalyst for process of Islamization in Malaysia gradually. Recall from the history of
trial Caliph Ali, as known as Amirul Mukminin (Commander of the Faithful) during
that time with a Jew regarding possession of an armour which is relevant for this
reference8;

The Caliph lost his armour and it was seen in a shop of a Jew as his selling
item. Thus, Caliph Ali claimed that it was his armour that was dropped
accidentally from his camel at that night, but the Jew reluctant to confess
and emphasize it was his armour. Caliph Ali immediately brings their
dispute for judgment from a Muslim judge, Qadhi Syuraih Ibn Harith Al-
Khindi r.a. (deceased on 78H).

Qadhi Syuraih : What is your story?

Caliph Ali : I found my armour that dropped the night that was in
the selling items of this man.
Qadhi Syuraih : How about you, O man?
Jew man : It is in my belongings and possessions, and I do not
accuse Ali lying.
Qadhi Syuraih : O Ali, I do not have doubt on your honesty, but it is a
must for you to have two witnesses. Do you have
evidence that it is yours?
Caliph Ali : Yes, my both son, Hassan and Hussin is as my
witnesses for that armour is mine.
Qadhi Syuraih : It is not acceptable for children to be the witnesses of
their father in this case.
Caliph Ali : Subhanallah! How come for men who are guaranteed
entering heaven will not be accepted as the witness?
(refer to Hassan and Hussin which mentioned by
prophet as the youngsters of Heaven)
Qadhi Syuraih : Even so, Amirul Mukminin, I could not let children as
witnesses to support their father in this case. O Jew
man, take this armour as it is yours.
Jew man : Amirul Mukminin Ali has brought me for judgment
through his court (Islam) and Qadhi (judge) of his
choice. Judge of his choice decided differently. I
witness that this religion is true. (and without hesitate,
he recites the shahadah)

8
Zaharuddin Abd Rahman, (Hilyatul Awliya, Abu Nu'aim Al-Esfahani, 4/140; Tarikh al-Khulafa, As-
Sayuti, 1/185; Akhbar Al-Qudhah,Waki') in “Bolehkah Peguam Syarie Bukan Muslim?”, via
www.zaharuddin.net, <http://www.zaharuddin.net/content/view/933/72/>

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Jew man : Actually this armour does belong to you, O Amirul

Mukminin, it was dropped from you during that night.
But then, Caliph Ali gives the armour to the Jew as a gift.

Thus, the moral of the story is the non-Muslims can defend themselves in the
Shariah court. In fact using the service of a lawyer should be permissible and also the
rights of client to choose his representative due to the lawyer‟s credibility,
knowledgeable and experience in that area of law whether he is Muslim or not.
Likewise, it can be said that the potential Shar‟ie lawyer can be amongst non-Muslims
and Muslims as it satisfies definition of lawyer that is someone whose job is to advise
people, write formal agreements, or represent people in court9. Furthermore, there are
some advantages by opening a door for non-Muslims to be Shar‟ie lawyers involved
room of improvement in the legal system and also to widen many scopes in order to
uphold the wholly Shariah law in Malaysia. Consequently, the non-Muslims may
slowly embrace Islam eventually when they reached the highest and depth
understanding of Islam with the Allah‟s light of guidance. As Prophet Muhammad,
the Messenger of Allah very explicitly stated10:

“Like gold and silver, men are different in their qualities, whether before Islam or
after Islam. The best of them before Islam is apt to be the best when he comes to
understand Islam.”

This Hadith is can be used to support the verse of Qur‟an which also has a case
behind it and to be taken lessons from it11:

“We have sent down to you Book in truth, that you might judge between men, as
guided by God: so be not (used) as an advocate by those who betray their trust…”
(Surah Al-Nisa‟, 4:105)

The commentators explain this passage with a reference to the case of

Ta‟ima ibn Ubairaq, who was nominally a Muslim but really a hypocrite

9
Dictionary of Cotemporary English; THE LIVING DICTIONARY, (England: LONGMAN, 4th edn,
2005), 190
10
Related by Abu Hurairah and unanimously held to be authentic.
11
„Abdullah Yusuf „Ali, 100.

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and given to all sorts of wicked deeds. He was suspected of having stolen
set of armour but when the trial was hot, he planted the stolen property in
the house of a Jew, where it was found. The Jew denied the charge and
accused Ta‟ima, but the sympathies of the Muslim community were with
Ta‟ima on account of his nominal profession of Islam. The case was
brought to the Prophet (SAW) who acquitted the Jew according to the
principles of justice. Attempts were made to prejudice him and deceive
him into using his authority to favour Ta‟ima but these failed.12

Muslims should be realized that even among them are hypocrites and as human
never will be purified from sins as in the hereafter, Muslims will be weighed and
judged by Allah for their live deeds in the world. Hence, Muslims should not be so
judgmental towards non-Muslims because it is the duty and burden of Muslims to
uphold Shariah law and spread the belief of Islam towards the non-Muslims.

Even though Shariah law can be illustrated like free-size clothes but yet it is
designated and custom made by Allah for specifically to all His believers and
generally to every human being in the world. Nonetheless, it wills not being fitted and
stretched freely and perfectly as there must be a draw line between the non-Muslims
to avoid transgression and misconception. Besides that, Shariah law should be
handled with care by expertise. This matter has extended to the question on criteria of
Shar‟ie lawyer and which arise another issue whether they can reach the expectation
of it or not. Tan Sri Datuk Prof. Ahmad Mohd Ibrahim and Dato' Prof. Dr. Mahmud
Saedon Awang Othman also has listed the criteria of Shar‟ie lawyer under the Islamic
law are as the following13:

1. Have a good character. The Holy Qur'an says to the effect: "You
indeed in the Prophet of Allah a beautiful pattern of conduct for any
for any one whose hope is in Allah and the Last Day and who engages
much in the praise of Allah." (Surah Al-Ahzab, 33:21)
2. Be trustworthy. As stated in the Holy Qur'an to the effect "Allah
commands you to render back your trusts to those to whom they are
due." (Surah An-Nisa', 4:58)

12
Zaharuddin Abd Rahman (Tafsir Ibn Kathir, 1/552; Al-Durru Al-Manthur, As-Sayuti), in “Bolehkah
Peguam Syarie Bukan Muslim?”, via www.zaharuddin.net,
<http://www.zaharuddin.net/content/view/933/72/>
13
Tan Sri Datuk Prof. Ahmad Mohd Ibrahim, Dato' Prof. Dr. Mahmud Saedon Awang Othman,
“Chapter 7: Judges and Lawyers under the Shariah” in ISLAM AND JUSTICE, edited by Aidit Bin Hj.
Ghazali, (Kuala Lumpur: Institute of Islamic Understanding Malaysia, 1993), 143.

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3. Should perform his duties with sincerity, honesty and with the
intention to serve Allah (SWT) for he is performing a worthwhile duty
in the eyes of Allah (SWT).
4. Should have a good knowledge of the law, both substantive and
procedural.
5. Should continue to improve his knowledge and make himself more
competent to perform his duties.
They also added that both in the legal Profesison Act, 1976 and in the
Peguam Shar‟ie rules for the States, there are provisions stating that to
became an advocate and solicitor or a Peguam Shar‟ie, a person must be
of good character and (a) has not been convicted of any criminal offence
and (b) has not been adjudicated a bankrupt.

Based on the requirements stated, it does not mention that Shar‟ie lawyer should
be a Muslim. However, the requirement of no. 2 and 3 might cause curiosity and
uncertainty especially the non-Muslims cannot be trusted as they do not profess Islam
and their intention to serve Allah which is conceived as absurd for they still believe in
other god than Allah. The main concern is their motive but then, even in the man-
made law, it is hard to prove a bad motive or malice and to be used as an evidence of
someone's wrongful act. That is why there should be stressed on that judge must be
Muslim in the Shariah court. It is mentioned in the Qur‟an, Surah Al-Maidah, 5: 6-11
on the duty on uprightness, and one of the verses14:

“... O you who believe! Stand out firmly for God, as witnesses for fair dealing, and let
not hatred of others to you make you swerve to wrong and depart from justice. Be
just: that is next to piety: and fear God. For God is well-acquitted with all that you
do.”

(Surah Al-Maidah, 5:8)

Nevertheless, there is some conflict on the qualification for being a judge

regarding whether that the judge must be a Muslim or not. It is also noted by the late
Tan Sri Datuk Prof. Ahmad Mohd Ibrahim and Dato' Prof. Dr. Mahmud Saedon
Awang Othman that asserted15:

14
„Abdullah Yusuf „Ali, 111.
15
Tan Sri Datuk Prof. Ahmad Mohd Ibrahim, Dato' Prof. Dr. Mahmud Saedon Awang Othman, 133

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7. The majority of jurists say that the judge must be a Muslim meanwhile
there are some jurists especially those belonging to the Hanafi‟s school,
who take the view that non-Muslim judges can be appointed to hear cases
where the parties or some of them are non-Muslims. The Majallah Ahkam
Adliyyah in mentioning the qualifications for judge does not mention that
he must be a Muslim. Some modern jurists like Muhammad Salam
Madhur takes the view that a non-Muslim can be judge, as a non-Muslim
can be accepted to give evidence. It can be argued that in Malaysia, non-
Muslim judges can be appointed to deal with cases, in courts other than
the Shari'ah Courts (which apply the Shari'ah and the Muslim personal
Law and has jurisdiction only over Muslims).

Referring the review above, it can be considered that if non-Muslim can be a

judge in Shariah court by some jurists, then it will be possible for a non-Muslim to be
a Sharie lawyer. As the judge is the highest authority in any court following with the
assistance of lawyers. Although there is such an opinion of jurist, it is much
appropriate and reasonable for judge is a Muslim in order to supervise and guided the
non-Muslim Shar‟ie lawyer especially on their interpretation of Qur‟an and Sunnah.
In addition to that, Muslims in Malaysia are belonging to the Shafie‟s school so they
are prone to accept that judge must be a Muslim in Shariah court. Besides, the
decision is up to judges whether to overturn it or not after hearing both parties. In the
Qur‟an said16;

“(They are fond of) listening to falsehood, of devouring anything forbidden. If they do
come to you, either judge between them, or decline to interfere, if you decline, they
cannot hurt you in the least. If you judge, judge in equity between them. For God
loves those who judge in equity.”

(Surah Al-Maidah, 5:42)

In the nutshell, we ought to look the bright side of these changes along with
outlook of the history. It is an alternative to strengthen the Shariah law and fully adopt
it for justice to be served and prevailed. Ineffectiveness of man-man law nowadays
should be replaced and all the country in the world should be unified under the
Shariah law excluding discrimination in races, countries, and colours because
everybody has the equal rights in Islam. There are just too many weaknesses in man-

16
„Abdullah Yusuf „Ali, 116.

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made law as can be seen in TV whether in the form drama series or reality news. It
can be described through a rhythmic poem;

Everyone seeks justice through law,

Everything from hitting someone's jaw,

Yet most of it is man-made which so many flaws,

As even a guilty person can get draw,

Citizens love to believe what they can saw,

Still among them were escapees living freely in the raw17,

Which this has eventually becomes the last straw?18

It is essential for Muslims have solid strong faith in their belief. Yet Muslims
are exhorted to remain united stated in the Qur‟an19,

“And hold fast, all together, by the rope which God (stretches out for you), and be not
divided among yourselves; and remember with gratitude God‟s favour on you; for you
were enemies and He joined your hearts in love, so that by His Grace, you became
brethren; and you were on the brink of the pit of Fire, and He saved you from it. Thus
does God make His Signs clear to you: that you may be guided”

(Surah Al „Imran, 3:103)

Plus, it is like propose a contract in acceptance of Islamic belief to the non-

Muslim when they are committed themselves to participate in Shariah law. Yet it
become obligatory the Muslims to fulfill the contract even with the non-Muslims
unless they breach some of the terms and conditions. Their rights and obligations are
determined according to basic text of Qur‟an and Sunnah. Examples:

From the Qur‟an:

17
Macmillan English Dictionary for Advanced Learners, International Student edn, 1171. Note: Used
for talking about the natural state of something, with all the unpleasant or shocking facts included.
18
Ibid, 1417. Note: The last of a series of events that causes an angry or violent reaction.
19
‘Abdullah Yusuf „Ali, 74.

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“O you who believe! Fulfill (all) obligations.”

(Surah Al-Maidah, 5:1) 20

“… As long as these (non-Muslim contractees) stand true to you, stand you true to
them: for God does love the righteous.”

(Surah Al-Tawbah, 9:7) 21

From the Sunnah, said the Prophet:

“Beware! Whosoever is cruel and hard on a contractee, or curtails his rights, or

burdens him with more than he can endure, or takes anything his property against his
free will. I shall myself be a plaintiff against him on the Day of Judgment.”22

In the end, Allah who is the wisest judge of all that know what is best for His
creations23;

“… Is not God the wisest of Judges?”

(Surah Al-Tin, 95: 8)

In the light shed of Islam, we should seek guidance from Allah regarding this
matter. And who knows maybe the non-Muslims will coincidentally embrace Islam
during their service as Shar‟ie lawyer for there is a saying, „don‟t judge a book by a
cover‟. For that, we Muslims should look forward for it to become reality. Whatever
decision of court on the case, the Muslims should be open-minded and not being hasty
about it because there always reason for every incident to be happened. Thus, I‟m
strongly agreed that non-Muslims can be Shar‟ie lawyer but stress on accordingly
with guidelines and procedure Of Shariah law.

20
Ibid, 110.
21
Ibid, 186-187.
22
Abu Dawud, Kitab al-Jihad, (n.d.), (n.p); Al-Kharaj, (n.d.), 125.
23
„Abdullah Yusuf „Ali, 657.

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