Dissenting judge: Parliament does not bar non-Muslim syarie lawyers

When Parliament's intention is clear, the court must enforce its meaning and not try to find another meaning to the words, says Justice Suriyadi Halim Omar.

PUTRAJAYA: The intention of the Administration of Islamic Law (Federal Territories) Act was never to block a non-Muslim appearing before the Syariah Court as a syarie lawyer.

This was stated by dissenting Federal Court Justice Suriyadi Halim Omar in the case of lawyer Victoria Jayaseele Martin’s bid to be a syarie lawyer.

In a split 3-2 ruling today, the Federal Court overturned a Court of Appeal ruling that a non-Muslim can practise as a syarie lawyer in the Syariah Courts throughout the Federal Territories.

Suriyadi backed this up by quoting the Hansard on the amendment of Section 59 of the Act, dated Aug 16, 1995, when the Bill was being read.

“The Hansard clearly states that Parliament had no intention to shut the doors to non-Muslims who have adequate knowledge of syariah laws.”

Section 59(1) must include any person, regardless of their religion, he said in his 52-page judgment.

He quoted in his judgment what then Minister in the Prime Minister’s Department Abdul Hamid Omar said when winding up the debate.

The Hansard, in Malay, read that “with this amendment (for syarie lawyers), a lawyer in the Federal Territories can represent a client even though (the lawyer) is not Muslim”“This will be put in the list. They will have to pass the exams required.

“This is in line with our needs today. This is suitable with syariah law courses offered by the International Islamic University to non-Muslim undergraduates.”

Justice Suriyadi added the court had a duty to give effect to the intention of Parliament.

“Had it been the intention of Parliament, the religious requirement would have been added to Section 59(1) without hassle,” said Justice Suriyadi.

He added that when Parliament’s intention was clear, the court must only enforce its meaning, not find another meaning to the words.

Justice Suriyadi noted that Rule 10 of Peguam Syarie had clearly contravened the Act and had gone beyond the powers prescribed to it.

“The additional requirement on admitting only Muslims was against the intention of Parliament.

“It had imposed a restrictive and draconian qualification, something not subscribed in the Act,” he said.

“Such a requirement has disqualified an eligible candidate (Victoria). Her constitutional rights were restricted and infringed.”

Justice Suriyadi said Rule 10 should be declared null and void.