The Syariah Court system is one of the two separate systems of courts which exist in Malaysian Legal System. Syariah refers to Syariah law in Islamic religious law and deals with exclusively Islamic laws, having jurisdiction upon every Muslim in Malaysia. The dual-system of law in Malaysia is provided for in Article 121(1A) of the Constitution of Malaysia. The civil courts in Malaysia, which is a federalised court system, the Syariah Court is a creature of state law. Similarly syariah or Islamic law is a matter of state law, with the exception of the Federal Territories of Malaysia, as provided in Article 3 of the Federal Constitution. Thus syariah law in one state might differ to that of another state. There are 13 state syariah law departments and 1 syariah law department for the Federal Territories.
Usually, legal representative who will appear in Syariah Court is Syarie counsel. It means that, they must hold the title of Syarie Counsel in order to enable them to appear before court. This is because, the cases heard before Syariah Court usually relating to Muslim affairs. Those matters fall under jurisdiction of Syariah Court is enumerated under List 2 of Nine Schedule of Federal Constitution.
When we talk about Syarie Counsel, it means that we are discussing about Syarie Counsel who defence his client in cases which where Syariah Court has jurisdiction. Syarie Counsel will give his best legal services to fulfil the desire of their client. This is because, most of the clients hoping that they will win the case.
By looking at the statement above, it seems that Syarie Counsel will defence his client without taking into consideration whether their client is guilty or not. Is it the truth and what are the Islamic views upon this profession? This is the issues discussed by Muslim as lawyer is regarded as a person who distort the truth for gained. This is one of the challenging issues for this profession especially upon Syarie Counsel.This is because, Syarie Counsel will be in dilemma situations when he faced with this situations especially when the matters involve the right of Allah i.e. offences under hadd punishment
1. THE DUTY OF LEGAL COUNSEL
General role as legal counsel is to give service to his client. The Islamic Legal maxim stated الاءصل براءة الذمة
Thus, the duty of legal counsel is not to serve the client per se, but to prove in the court either he is truly guilty or not. Among the duty of legal counsel is to act on behalf of his client as a trustee, who administer the trust property, prepare an agreement between his client and the other party, to protect the interest of his client and etc.
According to the principle of law stated earlier, a person is innocent until proven guilty. It means that, an accused is innocent at the first stage he is brought for trial. Generally, lawyer is in charge to give assistance to court so that the trial can be conducted smoothly and the fact, procedure and provision of law which related to the case can be produced and argued before court in a professional manner. Through this way, judge will be assisted to make a proper and just decision. This is because, lawyers is an officer of the court.
This is because, all the evidence produce before court is based on the naked eyes. It means that, sometimes when the judge needs to decide certain matters, there is no revelation or divine sources from God. Judge will decide the case based on the evidence produce before him. The authority is that: الحكم على الظواهر والله يتولى على السراءر
The second authority is: نحن نحكم بالظواهرونفوس البواطن لله عزوجلى
The second authority means that, we can decide certain matters based on what is serve to us or available to us. The details or truth we need to leave it to God because He knows everything.
ان الله ياءمركم ان تؤدوا الامنت الى اهلها واذا حكمتم بين الناس ان تحكموا بالعدل
Based on the duty of lawyer in court, outside court or his connection as a representative of his client in protecting, defending and dealing with the right and interest of his client, it is in line with the Order from God based on the above stated verse. This case can be made as a basis in performing that duty although that verse is general.
2. APOSTACY IN ISLAM
Apostasy is riddah from the root ‘radd’ which among other connotations has the meaning to retreat, to retire, to withdraw from or fall back from. In the context of Muslim Fiqh (jurisprudence) it is equated with renouncement or abandonment of Islam by one who professes the Islamic faith. The apostate is called murtad.
According to Muslim jurist, apostasy may be committed with reference to belief, word or deed or even by failure to observe certain obligatory practices. The person concerned must have attained majority, should be in full possession of his senses and should have acted voluntary, if he is to be condemned as an apostate.
A murtad is someone who renounces Islam, after accepting it. All four schools of thought agree that a sane male who become an apostate must be executed depending on the perquisites. While, for female may be put to death, according to some schools, or imprisoned, according to others.
They constitutes apostasy in Islam when a public declaration or conduct that denies Islam, its beliefs, symbols or its principal factors such as statements as "I believe in gods other than Allah", or "God has a material form". Those acts can be created as apostasy:
· Worshipping an idol.
· Denying the existence of God
· Saying the world has always existed from eternity, in such a way that it denies the existence of God as a creator.
· Saying that the world is everlasting and without end, in such a way that it could be interpreted as a denial of resurrection.
· Believing in reincarnation into this world, in such a way that it could be interpreted as a denial of resurrectio
The jurist muslim are unanimously agreed that apostates must be punished. The majority of them including the four main schools of jurisprudence as well as the other four schools of jurisprudence agree that apostates must be executed.
The view is further strengthened by the death sentence imposed by Abu Bakar against those who refused to pay zakah and defeat the state officials which is a rebel against the community against the leader of the state
ACT OF SYARIE COUNSEL IN DEALING WITH CONVERSION CASES
Dealing in conversation cases is one of the dilemmas suffered by Syarie Counsel because apostasy is classified as one of the offence that can be punished under hadd. To defence someone who want to renounce from Islam will give bad impression in certain aspect. So, Syarie Counsel who had been assigning with this case will be in a dilemma whether to accept or reject.
So, the issue may arise, what if the Syarie Counsel did accept the cases which put him in dilemma? Did the acceptance connote the meaning that the he is assisting in wrongdoing with the cruel person while the person who had been charge is not proven yet his guilty? This is because, according to the principle of law, a person is innocent until proven otherwise. The second issue is, if the person charge is proven guilty and he appeal for lighter punishment, revision or set aside the case, did the assistance given by the lawyer means that he is abetted or support the offence committed?
Actually, as discussed earlier lawyer is in charge to give assistance to court so that the trial can be conducted smoothly and the fact, procedure and provision of law which related to the case can be produced and argued before court in a professional manner. Through this way, judge will be assisted to make a proper and just decision.
Based on the case of Siti Fatimah, the syarie counsel in this case argued that he has no intention to assist a Muslim to renounce from Islam. He only followed the procedure in ascertaining the status of religion since there is no guideline or provision which provide under which court is proper to determine this matter.
Generally, a lawyer needs to obey what had been ordered by Allah. It is obligatory upon them to upheld justice although it is contrary with the interest of themselves or their client. Any intense desire, sympathy, hatred or angry cannot be a motive of action. Personal interest, fame or popularity and a desire to win in every trial should be set aside. In contrast, they should become a witness for Allah and the real triumph is to get blessing from Allah.
To uphold justice in Islam, feeling of hatred upon others should be set aside. In this context, as lawyers, they must uphold justice. Lawyers plays an importance roles in order to prove the excellent of justice in Islam, the greatness and honourable of Islamic Law. This is because, lawyers who perform their duty justly and with full of trust means that they are performing an obligation to Allah.
Briefly about the case of Siti Fatimah, decided at Penang Syariah High Court.
On 10 July 2006, Siti Fatimah filed an application to MAIPP as a Plaintiff to renounce from Islam. According to her statement of claim, she had no confident with the Islamic teaching and only embraces Islam for the purposes of marrying Muslim male. She filed an application after she had been divorce by her husband. In his claim, she also stated that, during the time she profess Islam, she still worship an idol, followed her previous religion (Buddhist) and eat swine. Based on the fact adduce, argument from her counsel and witness who appear in court to give evidence, the judge in this case satisfied that Plaintiff did not practice the religion of Islam since she profess that religion on July 1998. Judge allowed her application to get an announcement to renounce from Islam. Judge also ordered MAIPP to cancel her certificate of embracing Islam. To change her status of religion in her identity card, she need to deal it with National Registration Department herself because it is not within the jurisdiction of Syariah Court.
Critics made by non-government organization: Siti Fatimah is not a Muslim although she had professed syahadah because she only professes it (to embrace Islam) due to formalities to enable them to marry with Muslim man. But in this case, it is an application ‘to determine the status of religion’. This is the argument why the Syarie Counsel in this case willingly accepts this case.
We can found out what is the real motive of an application in this case if we refer to the Statement of Claim filed by Ahmad Jailani (lawyer for Fatimah). However, based on media report, it is confirmed that one of the motive of an application is to get an order of announcement that the Plaintiff had renounced from Islam. Even it is truth as argued by Ahmad Jailani, the question is what is the different between ‘an application to declare herself as non-Muslim’ and ‘an application to renounce from Islam’.
The truth is that, the application is made by Ahmad Jailani after he got a proof that Siti Fatimah had embraced Islam and now she made an application to renounce from Islam. So, an application for a declaration of Siti Fatimah religion (Buddha) is an application to confirm that Siti Fatimah had become an apostate person. Thus there is no intention from Encik Jailani to assist a client to renounce from Islam but this case involves procedural technicalities.
Syarie counsel in this case argued that, the real intention from him just to ensure that the function or jurisdiction of Syariah court in conversion cases supposed to be handling by Syariah court per se. This case is relating to the issue of procedural technicalities that is the procedure or application to change the status of religion.
Beside, the real intention of Fatimah in embracing Islam maybe just wanted to fulfil the procedure requirement that is embrace Islam to marry Muslim man. That is why, when her husband left her, she simply apply to renounce from Islam. She’s not willingly embrace Islam.
In this case, judge also stated that he disappointed with the Islamic Religious Council of Pulau Pinang because fail to guide Muallaf deeply to Islamic teaching. This is because; it is a duty of Islamic Religious Council to take care of the welfare of the Muallaf, to guide them regarding Islamic matters so as they did not feel being ignore as a Muallaf.
4. THE POSITIVE SIDE FOR SYARIAH COURT IN DEALING WITH CONVERSION CASES
The parliament has the power to authorize the state legislature to enact the law subject to such conditions or restrictions that the parliament may impose. With regard to religious matters regulating conversion, the State may make statutory provisions for conversion to Islam but there is no statutory provision that governs the conversion to any other religion. Nevertheless, it may suggest that Islamic Law does not allow the transfer of religion by Muslims as it is contrary to the general concern of Islamic law. The accepted definition of a Muslim in Shariah Law include a Muslim by birth as well as by conversion to Islam. Thus, in case of attempted apostacy, the law does not make any distinction between the two when appliying procedural requirement to determine the religious status.
Since the procedure to convert out of Islam is not regulated in majority of states, the task is given solely to the Syariah court to decide on the religious status. The authority is derived through inherent jurisdiction as decided in Dalip Kaur v Pegawai Polis Bukit Mertajam1 MLJ 1 or by implication appointed out in Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor 2 CLJ 5. Both cases involve muallaf who wanted to convert out of Islam by entering deed polls. But, the court decided that determination of their religious status must be done by Shariah Court that requires careful consideration from qualified people in Islamic jurisprudence.
The right to apostatize is raised in Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors. The appellant, a Muslim girl by birth attempted to apostatize by applying to National Registration Department (the NRD) to change her name into a Christian name and to delete the word Islam from her identity card. The reason for the application is that she has converted into Christian and wanted to marry Christian man. However, her application was rejected by the NRD after several attempts. She was advised by the NRD to obtain a declaration from Shariah court to the effect that she has renounced Islam before NRD could delete the word Islam from her identity card. Instead of referring the matter to the Shariah court, she applied to the High court against the Religious Counsel of Federal Territories and the Government of Malaysia for the violation of human right and freedom of religion as envisaged in Article 11(1) of the Federal Constitution.
It was argued that by the counsel of the appellant that article 11 of Federal Constitution does not only guarantee the right to profess a religion but it also allows a person to convert out. Thus the application made by the appellant to declare her absolute freedom to renounce Islam and become Christian could not be validly restricted or controlled by any law such as the administration of Islamic law ( Federal Territory) Act 1993, by the Shariah Court or by any other authority
As far as jurisdiction of the court is concerned, it is considered as a settled law that the Syariah Court will decide on the religious status of the party. However, possible conflict may happen in the absence of specific legislation governing apostacy.
The above discussion illustrates for the need to have a comprehensive statutory provisions governing conversion out of Islam to avoid a conflict. Undeniably, the syariah court is burdened heavier responsibility by the civil court to decide on the religious status. Thus it would be difficult for the Syariah court to decide if the judge is not familiar in dealing with a conversion cases in Syariah Court. The Syariah court, though empowered to deal with the convert to Islam, lacks the power to enforce its order to the non-convert due to its jurisdictional status as a creature of state law.
However, if Syariah court is the only competence court to decide conversion cases, it will have a positive side that is there is no need for a person to convert his religion to filed his application in civil court. Indirectly, this is the platform for Syariah court to upgrade its jurisdiction because for all cases pertaining to conversion, the parties usually filed an application to civil High Court.
5. THE BENEFIT FOR SYARIAH COURT OFFICER
As discussed above, there is a benefit when Syariah court is given this exclusive jurisdiction to deal with the conversion cases. One of the benefit is that, to train Syarie Court Judges to decide the issues which is in conflicting with the jurisdiction of civil High Court. Beside, the parties involve in conversion cases is Muslim persons. Thus, the exclusive jurisdiction of Syariah court as laid down in Article 121(1A) is followed.
Although this exclusive jurisdiction is not fully conferred, but at lease this is a preliminary steps taken to upgrade the jurisdiction of Syariah court. This is also indirectly to train other officer of the Syariah court, for example Syariah Religious Enforcement Officer, Syarie Public Prosecutor and others to deal with big current issues involving Muslims.
This is because, as we know a person who want to renounce from Islam will file an application in the civil High Court. This is because, if the file their application in the Syariah Court, they will kew the result that their application will be dismissed.
As discussed above, the responsibility upon Syarie Counsel is higher because they owe a big duty to execute the right of Allah. This is because, in a legal context, beside judges, they are the person in charge as a backbone to ensure that Islamic Law is upheld. Thus, in handling certain matters, the issue of sin, cruel depends a lot on their intention and not upon their duty and roles as a lawyer. This is an unsettled issue and becomes more complicated as the law and society always changing.
The greater challenge that needs to face by Syarie Counsel can be seen in certain aspect. First is moral obligation. Syarie Counsel need to behave in a good manner as demanded in Islam. The second is intention. In performing his duty, he must intended to performed it honestly, and with full of sincerity because it is part of ibadah. Thirdly, Syarie Counsel need to have deeper knowledge of Syariah because without it, they will not be able to assist a judge in upheld justice especially in relation with Syariah Law applicable in Syariah Court.
Though article 3 of the Constitution does not declare the Federation to be an Islamic State, every citizen is guaranteed the freedom to practise his religion in peace and harmony. On that premise, the religion of Islam has been given a special status of being the main and dominant religion of the federation that cast upon Federation a positive obligation to protect, defend and promote the religion of Islam. One of the natural consequences is the limitation imposed on the propagation of any religious doctrine or belief among persons professing the religion of Islam.
The above provision is supported by Article 11 of the Federal Constitution that states, every person has the right to profess and practice his religion and subject to clause (4) to propagate it. Federal Constitution permits State law and in respect of federal Territories to control and restrict the propagation of any religious doctrine among persons professing the religion of Islam and it is made an offence cognizable by the civil court.
Article 11 of Federal Constitution, guarantees the right of individual to profess and practice his religion including to propagate. This means that, this article give freedom to an individual’s to profess any religion he wish. However, it is to be note that, this article is contrary with the Islamic principle that is any person who professes Islam need to remain in Islam.
It is to be note that, verse 256 in Surah Al-Baqarah which means “let there no compulsion in religion” cannot be used by any Muslim as a defence to renounce from Islam. This principle only applicable to non-Muslim that is Muslim cannot force non-Muslim to profess Islam. But, if any Muslim wants to renounce from Islam, he was forced to remain in Islam and followed all the Islamic Ruling as stated by syarak.
So this article need for amendment that is by adding a proviso that this article cannot be applied to Muslim or prohibit Muslim from renounce from Islam. If this is done, it seems to strengthen the provision under article 3 of Federal Constitution that is Islam as a main religion of federation.