ISMI AZIEY: A VIEW ON LAW OF NON-MUSLIMS APPOINT AS SOLICITOR IN ISLAMIC PERSPECTIVE

Introduction

Issues related to Islam that many ask is related to Shariah Lawyers appointment from among non-Muslims. In our study, we explored Is there a specific prohibition or permissibility of it in Islam.

This issue requires further discussion in more detail, especially involving the provision of the law and associated with it.

In addition, the Islamic texts and the associated positive and negative effects should also be examined. Everything should be discussed so as to obtain a most concrete and sensible decision.

In our study, we talked about several things that need to be outlined. Firstly, we discuss the definition of Shariah lawyers and some relevant background Shariah lawyers.

Furthermore, we touched upon some qualifications for a syariah lawyers. Next we touched some scholars view 'on the issue. We also discussed the fatwa that was decided by the council on the issue fatwa malaysia. Our hope that this study helps further brighten the community thinking on the issue.

Definition of syariah lawyer

A lawyer refers to a specialist in or a practitioner of law, one as an attorney, counselor, solicitors, barrister or advocate whose profession is to conduct lawsuit as to legal rights and obligations in other matter. In the context of Malaysia, lawyers can be divided into two namely an advocate and solicitor and a Peguam Syarie. An advocate and solicitor is a lawyer appears in court to represent a client in either a civil or criminal case or a lawyer admitted and enrolled under the legal Profession Act 1976 whereby a Peguam Syarie refers to those who practice specifically in the Shariah Courts. The advocates and solicitors may also practice in the Shariah courts provided that they are qualified and fulfilled all the requirements of Peguam Syarie as stipulated in the Peguam Syarie Rules.

Lawyer in Islamic History

Lawyer must be honest and competent in order to ensure those judges are able to deal with the cases that come before them justly. Lawyer may find guidance of their duties to be honest and to establish justice as enjoined by the holy al-Quran. In surah al-Nissa verse 58 Allah says,” Allah commands you to fulfil your trusts to those to whom they are due and when you judge between man and man that you judge with justice, verily how excellent is the teaching which Allah gives you for Allah is He who hear and sees all things”,[1] in this verse, justice is Allah attribute and to stand firm for justice is to be witness to Him ,even if it is detrimental to our own interest or to the interest of those who are near and dear to us.

Profession of lawyers had already existed since the early period of Islam although it was not formally or specifically called as lawyers or solicitors or barristers. In fact, the principle of wakalah bil khusumah (agency) has already been practiced as the time of jahiliyah where any legal dispute would be referred to kahin or arbitrator. The arbitrator is appointed from the respected tribe and a noble family. During the time of the Prophet, the practice or wakalah can be seen in the case of Muadz bin Jabal be appointed as a Judge in Yemen. The prophet also asked Unais to determine conviction and enforcement of [2]hudud punishment on an adultery offender.

Saidina Ali Ibn Talib was known as one of the best legal representatives amongst the companions. For instance in case of zina (adultery) where a pregnant woman who had been married confessed that she has committed zina and asked Caliph Umar to stone her to death. Ali has investigated and proven that the occasion in the time of Caliph Ali, Saidina Hassan represented a man who has been accused with murder. All of these cases signify the acknowledgment of Islam on the legal profession particularly the roles play by the legal representative or lawyers to assist the court in the process of administrating justice.

Although there are no formal profession during the early stage of Islam but historical evidence in many literatures provide indication of the existence of such profession. During the Abbasids Empire the lawyer’s profession is formally recognized where judges normally requested the disputed parties to be represented by a learned person in Islamic law. Amongst the famous lawyers at this time were Abu Ahmad al Wazzan, a representative of Khadi Abi Jaafar ahmad Bin Ishak and Abdullah Bin Jaafar, a representative of Khadi abu Bakar Muhammad. It is contended that the modern practice of advocates and solicitors as practiced by Western legal system was only been introduced during the empire of Turki Uthmaniyah.[3]

The qualification of syarie lawyer

Peguam Syarie refers to those who practice in Syariah Court in Malaysia and is governed by respective State’ Peguam Syarie Rules. For the information Johor was the first state to enact Peguam Syarie Rules in 1982 and presently almost all States in Malaysia have their own Peguam Syarie Rules.

Firstly, Peguam Syarie Rules 1993 (Federal Territories), Rule 10^{^[4]}

A person may be admitted to be a syarie lawyer if he:-

a) (i) is a Muslim and has passed the final examinations which leads to the certificate of a bachelor’s degree in Syariah from any university of any Islamic educational institution recognized by the government of Malaysia; or

(ii) Is a Muslim member of the judicial and legal service of the Federation; or

(iii) Is a Muslim advocate and solicitor enrolled under the Legal Profession Act 1976; or

(iv) Has served as a Syariah Judges or as a Qhadhi any State Government in Malaysia for a period of not less than seven years;

b) Has attained the age of twenty-one

c) Is of good behavior and-

(i) Has never been convicted in Malaysia or in any other place of any criminal offence;

(ii) Has never been adjudged a bankrupt:

d) Is a Malaysia citizen;

e) As an advocate and solicitor, has passed the Sijil Peguam Syarie examination.

However, reference should also be made to Peguam Syarie (state of Selangor) Rules 2008, being the latest Rules that require additional academic qualification.

In addition, Ahmad Ibrahim and Mahmud Saedon Awang Othman in the following extract outlined the general qualification of a Peguam Syarie under Islamic law. It would seem that under the Islamic Law. Shari’ah should:-

Have a good character. The holy Qur’an says to the effect: ‘you have indeed in the Prophet of Allah a beautiful pattern of conduct for any one whose hope is in Allah and the Last Day and who engages much in the praise of Allah.’^{^[5]}
Be trustworthy. As stated in Holy Qur’an to the effect ‘Allah commands you to render back yours trusts to those to whom they are due.’^{^[6]}
Should have perform his duties with sincerity, honesty and with the intention to serve Allah (SWT) for his performing a worthwhile duty in the eyes Allah (SWT).
Should have a good knowledge of the law, both substantive and procedural.

By virtue state list, the administration of Islamic law is given to the states and eventually every state has its own Peguam Syarie Rules. References for the qualifications of a Peguam Syarie are made to the Peguam Syarie Rules 1993 (Federal Territories).

View Of Islamic Jurist

According to Ustaz Zaharuddin’s view regarding this issue, He said that, if we search the Islamic intellectual heritage there are some things that can be consulted: -

1. Allah says:

يا أيها الذين آمنوا كونوا قوامين لله شهداء بالقسط ولا يجرمنكم شنآن قوم على ألا تعدلوا اعدلوا هو أقرب للتقوى واتقوا الله إن الله خبير بما تعملون

Meaning: O ye who believe, you shall be the ones who always uphold the (truth) because Allah, bearing witness with justice. And let not the hatred of a people incite you into not being just. Be fair, just because it is nearer to piety. And fear Allah, for Allah is Informed of what ye do. (Al-Maidah: 8)

This verse clearly directing Muslims mengenakkan justice and truth in any assessment and sentence passed. Therefore the objective of the Shariah, whatever things should (which no specific prohibition) can get closer to justice will also be allowed.

In this context, in order to uphold justice in the Shariah court decision, of course, judges must be a Muslim, but have specific requirements in addition. Ustaz Zaharuddin regard, it is clear judges in the Syariah Court and must be a muslim.

But the status of lawyers, for him they only executor or limited jurisdiction such as executives, not casting. In fact all the claims or the submission of defense against his client is not necessarily accepted by the Judge. Hearings can also be made in private. Hence no doubt, lawyers involved will manipulate the Quran verses or hadith, as any deviation will be rejected by judges and other lawyers. So in that context, he sees no problem for a Syariah lawyer even among non-Muslims.

It is very similar to the situation of Islamic banking and finance today met with the CEO, senior management and executives who are not Muslims. But of course, they are required to have a certain number of criteria and eligibility to occupy positions in the Islamic finance sector. Particular knowledge and knowledge in the affairs of Shariah law in the field of Fiqh General Issue.

What not coming improper or non-Muslim is a member of the Shariah Advisory Council of Islamic financial institutions. This is because the position requires criteria Shariah court judges to embrace Islam in science, life and faith in my heart. Alhamdulillah to date, there is still no any individual or non-Muslim scholar who was appointed to the Shariah adviser.

As the use of the name of Allah, the government has the exclusive power to block if believed it could bring certain harm. Even if no harm, He gives freedom. This is clear from the second sentence that I bring on also, namely:

فإن جآؤوك فاحكم بينهم أو أعرض عنهم

Meaning: If they come to you, judge between them the sentencing process or you can turn

Imam Al-Baidhawi etc. mufassirin explained:

تخيير لرسول الله صلى الله عليه وسلم إذا تحاكموا إليه بين الحكم والإعراض

Meaning: It is the giving preference to the Prophet when they come asking for the punishment of it, whether to accept or reject (Tafsir Al-Baidhawi, 2/326)[7]

Fatwa On Law of Non-Muslims appoint As solicitor by Fatwa Committee of the National Council for Islamic Religious Affairs Malaysia

Discussion Fatwa Committee of the National Council for Islamic Religious Affairs Malaysia Ke-92 time sitting on 15 to 17 December 2010 have been discussing the Law of Non-Muslims appoint As solicitor. Having examined the evidence, the arguments and views expressed, Discussion of the view that to be a syariah lawyers, one should be able to master knowledge of the Quran and al-Hadith, Arabic, Fiqh and Usul Fiqh Knowledge as a whole and it should be based on the faith to Allah responsibilities undertaken so pledged only to Allah and for the benefit of Muslims and Islam from the perspective of justice.

Therefore, in order to protect the sanctity and dignity of Islam and Muslims, Discussion agree decides that non-Muslims are not allowed to be appointed as guided Syarie fiqhiyyah rules and provisions of the following laws:

Ø سَدُّ الذَّرِيعَةِ

· This method refers to the need to close the doors that can bring harm. If non-Muslims are allowed to be appointed as syariah lawyers, it provides space for non-Muslims to manage the affairs of Muslims, especially with Islamic issues. This situation could create confusion among Muslims.

Ø إِذَا تَعَارَضَ الْمَانِعُ وَالْمُقْتَضَى قُدِّمَ الْمَانِعُ :

· When the conflict between evidences that forbid the evidences which require, shall be preferred to forbid things. Prohibition appoint non-Muslims as syariah lawyers should be given priority, even if it has a good possibility in a sense, but the disadvantages have to be taken into account and given due attention.

Ø المَصْلَحَةُ الْعَامَّةُ تُقَدِّمُ عَلَى الْمَصْلَحَةِ الْخَاصَةِ:

· This method means maslahah (good) generally have precedence over special maslahah. Maslahah general or general reference to maslahah Muslims in Malaysia as a whole. While maslahah special reference to the advantages that may be achieved by one person. In today's situation, maslahah civilians (Muslims) should be prioritized.

Ø تَصَرَّفُ الإمَامِ عَلَى الرَّعِيَّةِ مَنُوْطٌ بِالْمَصْلَحَة

· This method means the action taken by the government against the people depend on maslahah. In this context, the government reserves the right to make decisions based on the benefit of the people in accordance with the tenets of Islam.

Ø Based on the legal provisions in force, if a non-Muslims are allowed to practice as a lawyer was found not to comply with the Syariah and ethics as Syarie or any procedures related to the Syariah Court, no action can be taken because he was not subject to the jurisdiction Syariah Court. Therefore, no action can be taken against him for the Syariah Court has no jurisdiction overnon-Muslims.[8]

Administration of islam (johor state) 2003

Part v - prosecution and representation

Clause 80. Solicitor

(1) Subject to subsection (2), (3) and (4), the Council may accept any person who has adequate knowledge of Islamic law into Syariah Lawyers representing the parties in any proceedings in the Syariah Court.[9]

CONCLUSION

In practice we do not agree is not the Muslim Shariah Lawyers and agree with Fatwa On Law of Non-Muslims appoint As solicitor by Fatwa Committee of the National Council for Islamic Religious Affairs Malaysia

Regarding about what Ustaz Zaharuddin talking about in his article above is some aspects of the legal angle. The question of lawyers included in the chapter "Al-Wakalah Khusumah bill 'or' Al-Wakalah Fi Al-Da'wa '.

That is, the appointment of a person to a lawyer to represent him in the trial. Explicitly mentioned by the scholars of Islam must not to represent Muslims in any case involving property, family, inheritance rights and so on.

Imam Ibn Qudamah says:

وإن وكل مسلم كافرا فيما يصح تصرفه فيه صح توكيله سواء كان ذميا, أو مستأمنا لأن العدالة غير مشترطة فيه

Meaning: if a Muslim truly a akfir appoint its representative in any legal matter for him to act, mak valid appointment as representative (in the context of our discussion billing representative khusumah = representative defenders or prosecutors), either disbelieve from among the heathen dzimmi, Musta 'min because justice is not required (linked) to it "(See Al-Mughni, Ibn Qudamah, Chapter Wakalah)

From the point of Islamic law, non-Muslims are allowed to represent Muslims in court either civil courts or the Syariah court (in the context of Malaysia). Only it was bound to the law. However, they have already issued a clear fatwa on the issue Fatwa Council of Malaysia to prevent non-Muslims become syariah lawyers as to keep the benefit of the community and to the need to close the doors that can bring harm.

REFERENCESS

Al-Quran
نظام القضاء في الشريعة الاسلامية , الدكتور عبد الكريم زيدان . مؤسسة الرسالة ناشرون.ه1432 – 2011م
Administration of Islamic Law in Malaysia, second edition, Farid Sufian Shuaib, Tajul Aris Ahmad Bustami, Mohd hisham Mohd Kamal.
Administration of Islamic Laws (Federal Territory) Act 1993
Enactment 16 of 2003, the enactment administration Islam (Johor state) 2003, Part v - prosecution and representation.
http://www.e-fatwa.gov.my/fatwa-kebangsaan/hukum-melantik-orang-bukan-islam-sebagai-peguam-syari-e