Letter to Rector : Objection on Appointed Seats in The Students’ Representative Council

On 11th May 2010, Students’ Representative Council (SRC) got a memo from Student Development Division regarding to the appointed seat for Institute of Education, Disable Student, Non-Muslim student, International student (for Kuantan) and Kulliyyah of Dentistry (for Kuantan). Since the procedure of the appointment is contravened with SRC constitution and it’s violate the students’ rights to elect their representative, thus, we sent the objection letter to the rector concerning to the issue. The letter is as below.



Our ref: IIUM/SRC0910/PRES/I-006
Date: 9th June 2010


Prof. Dato' Sri Dr. Syed Arabi Idid
Rector,
International Islamic University Malaysia


السّلام عليكم و رحمة الله و بركاته
Dear Hon. Prof. Dato’ Sri,

Objection On Appointed Seats In The Students’ Representative Council

May this letter reach the Hon. Prof. Dato’ Sri in the best of health and highest Islamic spirit by the grace of Allah S.W.T. With regards to the above matter, the executive members of the Students' Representative Council (SRC) session 2009/2010 would like to express our disappointment regarding to the appointment of new representatives in the SRC 2009/2010 line-up.

2) Referring to the memo received from the Student Development Division dated 11th May 2010, it was stated that the university has appointed two new students’ representatives to represent the International and Dentistry students in Kuantan campus. Meanwhile, three representatives were appointed representing the Disabled students, Non-Muslim students and Institute of Education constituency in Gombak campus.

3) With regards to the issue mentioned, we would regretfully object to the appointment made as we firmly believe that the appointment of the new representatives is in contravention to the SRC Constitution itself whereby it is provided under Article 9, Part III of the SRC Constitution:

“The association shall be represented and administered by the SRC elected by the members in accordance with the Third Schedule.”

Based on this article, it is clear that the SRC Executive members must be selected through an election. Therefore, there shall be no appointed seats in the Students’ Representative Council. We believe that the appointed system cannot be implemented in order to uphold the right of the IIUM students as a whole to have fair election in choosing their representatives. Violating this right will definitely neglect the norms of democracy which has been honored by the International Islamic University Malaysia before.

4) Pertaining to the Dentistry and International students’ seats in Kuantan, by virtue of Article 15 (2) of the SRC Constitution it is stated that:

“When the position of a representative in the SRC is declared vacant, BOSA shall have the power to determine as to whether a by-election may be held by taking into account the paramount interest of the University under the circumstances”

It may be understood that when a seat in the SRC is declared vacant, BOSA shall have the power to decide on whether a by-election is to be held. As we know, there is no competition in the previous election on both constituencies. Hence, by virtue of this article we humbly suggest that by-election should be conducted and at the same time encouraging direct involvement of the students in choosing their leaders who will represent them.

5) Pertaining to the seats for the disabled and non-Muslims students, it is undeniable that as registered students of the IIUM, they are entitled to enjoy equal rights, including rights to be heard and to be represented. Nevertheless, we do not see any solid reasons to appoint new representatives on their behalf, as we are convinced that the existing Welfare Secretariat is able to take care over their needs and welfare. In addition to that, we believe that there is no need to appoint new representatives on their behalf since the percentage of disabled students is only 0.3 percent and non-Muslims students 1.3 percent from the IIUM undergraduates’ students.

Article 7 (d) of the SRC Constitution states that:

"The object and function of the SRC is to make representation to the Rector on all matters relating or connected with student's welfare"

6) Pertaining to the seat for education, it seems the university has denied the rights of IIUM students to cast their votes to select their representative in SRC General Election. Referring to the Article 9, Part III of the SRC Constitution (as quoted above), they should be given the opportunity to elect their own representative. Thus, the appointment of the new students’ representative is contravened with the said article.

7) On the other hand, the memo received was unclear and vague as the wording in the memo cannot be understood. It was stated in the memo that “the Rector has been elected” and they are selected as SRC representative. Thus, it creates confusion to our understanding. Attached herewith is the copy of the memo. In addition, it appears that the procedure of the appointment was not well organized since as far as this matter is concerned, only one of the appointed representatives received the letter of appointment but not the remaining four persons. This illustrates the lack of professionalism in implementing this matter

8) Therefore, SRC executive members unanimously disagree with the appointment of the new representatives, especially without prior notification and serious discussions with SRC. Such appointment would rather affect the management and framework which the SRC has well-structured since the beginning of the tenure ship. As the students’ representatives, we are concerned with the question of student’s rights and welfare which is much connected to the fundamental issue of democracy and rights to a fair election.

9) Nonetheless, we would like to request the pleasure of the administrative authority to have a thorough discussion with SRC executive members regarding this matter. We humbly request an immediate response from your good self.

Allow us to extend our highest gratitude for your kind support. Your concern and consideration is highly appreciated.

Thank you. السّلام و

“Joining Hands for the Betterment of IIUM”


MUHAMMAD FIRWAN NORLIZA (012-582 9252)
President,
Students’ Representative Council 2009/2010,
International Islamic University Malaysia.



Cc:
Prof. Dr. Nik Ahmad Kamal Nik Mahmod
Deputy Rector (Student Affairs)

Prof. Dr.Mohd Akram Shair Mohamad
Dean
Ahmad Ibrahim Kulliyyah of Law

Prof. Dr. Mohd. Adam Suhaimi
Dean
Kulliyyah of Information and Communication Technology

Dr. Badri Najib Zubir
Dean
Kulliyyah of Islamic Revealed Knowledge and Human Sciences

Dr. Amir Akramin Shafie
Dean
Kulliyyah of Engineering

Prof. Dr. Khaliq Ahmad
Dean
Kulliyyah of Economics and Management Sciences

Prof. Dr. Mansor Ibrahim
Dean
Kulliyyah of Architecture and Environmental Design

Dr. Siti Rafiah Abdul Hamid
Director
Institute of Education

Dr Asiah Binti Mohamad,
Director
Student Development Division

Can Non-Muslims be Shar'ie Lawyer?

This article won the first prize in AIKOLFEST Article Writing Competition which was held during AIKOLFEST. The writer of this article was NADRA FATIMA BINTI MANNAN. Congratulation!!

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 Court 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?

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)

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 categories :

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. 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 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,” 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 to :

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 Martin 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 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 reference ;

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)
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 court . 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 stated :

“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 it :

“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 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.

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 following :

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)
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 verses :

“... 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 asserted :

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 judge whether to overturn it or not after hearing both parties. In the Qur’an said ;

“(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-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 raw,
Which this has eventually becomes the last straw?

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

“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:

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

(Surah Al-Maidah, 5:1)

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

(Surah Al-Tawbah, 9:7)

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.”

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

“… 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.

Can a Non-Muslim be Shari'e Lawyers?

This article won the second prize in AIKOLFEST Article Writing Competition which was held during AIKOLFEST. The writer of this article was SITI AISHAH BINTI MOHD RAIS. Congratulation!!

Lately we were shocked by the news from main stream media about the judgement made by Kuala Lumpur High Court which consent the judicial review (mandamus) to suit the application of Victoria Jayaseelee Martin, a Christian lawyer, who wants to be a Shar'ie lawyer. On May 14, she won approval from the High Court to challenge the rule. The date for the hearing is yet to be fixed. The judicial review is one of the branches of the court’s inherent jurisdiction . Based on the courts authority (refer to common law), to review the legal action made by the executive and legislative party, courts must make decision that either the statute is permitted or vice versa with our constitutional (constitutional in nature) or either the result concluded by executive party that rely upon particular policies which in line with constitution. On the other hand, the reason that had been used by this applicant to be Sharie lawyer is because ‘to uphold the justice’.

Victoria, who was representative by Ranjit Singh in this case, has made claim in civil court after her application as Sharie lawyer has been rejected due to the reason that she is non-Muslim. After graduating from the University of London, Martin in 2004, obtained a diploma in Shariah Law and practice or Diploma Undang-Undang dan Amalan Syariah (DSLP) from the International Islamic University of Malaysia (IIUM) has filed the application in consent on certiorari order which want Majlis Agama Islam Wilayah Persekutuan (MAIWP) cancel the decision upon their rejection of her application to be Shar'ie lawyer. Applicant also want an announcement to be made that Rule 10 of the Peguam Syarie Rules 1993 (Federal Territories) that gives mandate only Muslim can be accepted as Shar'ie lawyer is an ‘ultra vires’ to Islamic Administration Law Act 1993. Besides that, the applicant also made a claim that another announcement must being done in a same way that who gives mandate that only Muslim can be Shar'ie lawyer is opposite with the article 8 (1), 8 (2), 5 and 10 (1) in Federal Constitution.

The respective judge, Hakim Datuk Mohd Zawawi Salleh in his decision has rejected the evidence from MAIWP who was represented by Nadia Hanim Mohd Tajuddin that only Shariah court have jurisdiction to try the cases of their clients. This is because, actually Civil courts have jurisdiction to curb the issue as authorised by law.

I am fully believe that this issue will be settled by judiciary division in peace and harmonize condition without any bias to any party. However, I have some doubt here after evaluate particular circumstances. Firstly, this application was found triggered after the applicant faced the disappointed series of non-Muslim dilemma about rights and their responsibility when any case was tried in Shariah court. For example, applicant in this case Victoria Jayaseelee Martin, has said that she wants to be Sharie lawyer to handle cases such as custody battles for children where one spouse had converted to Islam and where Muslims had renounced their faith.

Magdelene Selvarajah, a social worker, said some Muslim lawyers are sympathetic to non-Muslims’ custody battles, “but they don’t dare take up such cases as it would be seen as going against Islam. So why not allow a non-Muslim, a person who is competent in Shariah law, to do so?”. In this problem, they must understand that our religion has fixed some guidelines to appoint Shariah lawyers and judges. Yet in another verse the Quran said :

“We have neglected nothing in the book”

Legal dualism in Malaysia is reflected by the application of two sets of laws which are Shariah and Civil. The former has been practised centuries prior to the invasion of the colonialists, while the latter was introduced after the coming of the British to this land. Now, there exists two groups of lawyers which are Syarie and non-Syarie legal practitioners. Under certain circumstances, a section of them may practise in both systems provided certain requirements are met.

To become a civil lawyer, one must obtain the Bachelor of Laws degree from any tertiary institutions recognised by the Government. After being called to and admitted by the Bar or any other relevant body, one may serve as an advocate and solicitor in the country. For syarie lawyers, they have to fulfil a number of additional conditions, which are generally the same throughout the country, but there are some minor variations in some states.

For example, Rule 10 of the Peguam Syarie Rules 1993 (Federal Territories) clearly provides that a person may be admitted to be a Syarie lawyer if he:

(i) is a Muslim and has passed the final examination which leads to the certificate of bachelor’s degree in Syariah from any university or any Islamic educational institution recognised by the government of Malaysia; (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 1967.

Section (c) of the same Rule states that the aspiring applicant must be of good behaviour, while Section (e) stipulates that as an advocate and solicitor, he or she must pass the Sijil Peguam Syarie examination.

Considering the provisions mentioned, can a non-Muslim apply to become a Syarie lawyer? The answer is obviously a categorical “NO”. However, we cannot solely rely on law and its legal provisions to deny any application, as people see no rationale justifying such a rejection. Here, at least two rationales can be given to fill the seemingly lacunae. Firstly, in Islamic tradition, the terms “Islam” and “Syariah” have been applied interchangeably as synonyms. Though the latter is generally perceived as more technical referring mainly to legal matters, in reality it covers all aspects of human life such as theology, law, politics, economics, ethics, and so forth to form a complete religion and way of life known as Islam. Therefore, knowledge about Shariah implies knowledge about Islam and vice versa.

In addition, Islam is a divine religion meant and brought to all mankind by Prophet Muhammad S.A.W. Those who accept his call, recognise and believe in him as the last Messenger of God are known as Muslims. Should disputes arise among them, possible solutions must be obtained within the parameters specified or recognised by the religion. It may be reached either inside or outside the formal court of justice established by Shariah.

فسألوا أهل الذكر ان كنتم لا تعلمون

“ask your matter (religious) to the expertise if you know”

Realising the above framework, the duty of a Syarie lawyer “is not only to present and argue a case for the interest of his client but, more importantly, to assist the court to arrive at a just and fair decision even if the decision of the court may not be in favour of his client”. In doing so, he must constantly refer to the primary and secondary Islamic legal sources, namely, the Quran, the Sunnah of the Prophet, consensus (ijmak), analogy (qiyas) and other methods agreed upon by Muslim jurists and scholars.

Therefore, for a non-Muslim to become an effective Syar'ie lawyer, he must first of all believe in all fundamentals prescribed by Islam. He must make efforts to understand as many Islamic teachings, principles and tenets as possible and outwardly put them into practice. He is also required to adequately master the art of applying and deriving conclusions from all those primary and secondary sources of Islamic law. And it takes years for one to sufficiently learn all the necessary processes. How best can a non-Muslim “syar'ie lawyer” fight for the interests of his Muslim client if he himself actually does not sincerely believe in Islam and practise the religion?

Understanding Islam based on unguided readings or attending sporadic short courses is far from enough for one to claim so. A 150-hour course in Islamic law, for example, does not guarantee that one understands Shariah to the extent that he is qualified enough to talk confidently in the area. By analogy, can a non-Christian like me, after claiming some knowledge in the religion, apply to become a priest without changing my religion? By the same token, can I apply to be a Hindu or Buddhist monk just by having a certain diploma in certain respects of these religions without abandoning my original faith?

There are no religious authorities would allow that “encroachment” to take place as that would only create suspicions, problems and confusion in their respective groups in particular and in the masses in general. It does more harm than good. “Accepting” Islam cannot be compared with accepting something non-religious or cultural in nature. Thus one may enrol as a martial arts student in silat, tae kwan do, kungfu, etc, irrespective of one’s religious or racial background. Similarly, a non-Malay may adopt a Malay wedding ceremony; a Malay-Muslim may become involve in a certain Hindu arts, or join a Chinese Opera group. All these can be done, I believe, without having to compromise one’s religious beliefs.

Secondly, literature on Islamic law is abundantly written in Arabic. A good Syar'ie lawyer will have to master the language for him understand the Shariah better. Quranic and prophetic texts as well as juristic opinions are all preserved and recorded in Arabic. Considerable works may be translated into and available in many other world languages but a tremendous amount of material remains in Arabic. In Malaysia, I believe there is no non-Muslim lawyer who understands Arabic good enough that may help or enable him to comprehend Shariah better to qualify him to practise in that field. Even if one manages to acquire and fulfill this requirement, his understanding of Islam remains doubtful.

The next point that I want to stress out about the purpose of Shariah. Every law is oriented towards certain purpose. The Shariah, being a divinely inspired code for human conduct, also has its own aims and objectives. Its primary goal is to free man from the grips of his own whims and fancies so that he may become a true servant of ALLAH S.W.T. As we reading the Al-Quran:

“then we put thee in the right way of religion : so follow thou that way and follow not the desires of those who know not”.

To enable man to serve Him, ALLAH has designed His laws to secure man’s interest and safeguard his well-being (maslahah), both in this world and hereafter. This is very significance to the issue that we have discuss earlier. I strongly believe if we give consent to non-Muslim be Sharie lawyer, the case of apostasy, drink liquor and gambling will be increased in a short time. We must be aware that our religion’s enemy will not allow Islam control the world and they will influence us to follow their way of life with any method (ghazwul fikr) that many of us did not realise it. However, I strongly believe to ALLAH S.W.T that Islam will unite and leads the ummah 100 percent sooner or later.

Generally, for those who do not sincerely believe in Islam or do not properly practise the religion, and those who do not have the linguistic skill of Arabic, they are advised not to indulge in Islamic law as their profession, fully or partially, even if they are Muslims. Let alone if they are non-Muslims. ALLAH S.W.T has said :

“this day, I have perfected your religion for you, completed My Favour upon you, and have chosen for you Islam as your religion”

I want to share some useful advices about the fiqh of dispute resolution. It is natural that everyone in a society cannot be expected to behave elegantly and responsibility. Violation is bound to occur, out of greed of power, money, authority, recognition, criminal motives and the social conflict that ensues. ALLAH S.W.T has clearly sanctioned this social dispute :

“if you fear a breach between them. Appoint two arbiters, one from his family and the other from hers. If they seek to set things right, ALLAH will cause their reconciliation...”.

Prophet Muhammad S.A.W also underline the importance of mediation when he said :

“shall I not inform you of something more excellent in degree than fasting, charity and solah? On receiving the reply, he said : It is putting things right between people, for to incite people to dispute is like a a razor. And I do not mean that it shaves off the hair bit it shears the religion”

Another Quranic passage lays down the basic law of Islam about the relationship between Muslim and people of other faiths.

“ALLAH does not forbid you with regard to those who do not fight you on account of your religion nor drive you out of your homes, from treating them with goodness and from being just to them; truly ALLAH loves those who are just”

Consequently, the cardinal principle of social relation in the Islamic view is one of peaceful coexistence and not in conflict, tension and hostility. The issue that we have discussed can be solved if there are co-operation between Shariah court and Civil court in upholding the true justice in this worldly life. We must realise our basic role in this world which are as the servants of ALLAH S.W.T, His caliphs and spread the truths. I am very confident if all of human being in this world realised their roles, we will not rely on the man-made law anymore. It is enough for us to apply the Law of ALLAH S.W.T as our guidance in life which based on Al-Quran and As-Sunnah. Last but not least, a non-Muslim who wants to practice as a Syarie lawyer must believe in all fundamentals prescribed by Islam and understand as many Islamic teachings, principles and tenets as possible.

“Can a Non Muslim Mother Have a Right of Guardianship Over Her Under Age Muslim Children?"

This article won the third prize in AIKOLFEST Article Writing Competition which was held during AIKOLFEST. The writer of this article was RAIHAN MUSTAFA KAMAL and NORAZWAA SAZALI. Congratulation!!

“ Mohd Ridzuan, 40, or Patmanathan a/l Krishnan, 40, a Muslim convert who used to be a Hindu, was reported to have converted his children -- Tevi Darsiny, 12, Karan Dinesh, 11, and Prasana Diksa, 1 -- to Islam on April 12 and applied for custody at the Syariah Court although their mother is still a Hindu.”

Living in Malaysia, a multiracial and multi religions country, contributes as one of the factor which leads to the dispute between a converted Muslim parent and Non-Muslim spouse on a custody of their child/children upon a conversion. The cases like Nur Aishah Suk, Shamala Sathiyaseelan and Subashini once have attracted the attention of the whole nation of Malaysia on this matter. Latest, the case of Mohd Ridwan or Patmanathan a/l Krishnan has been reported on April 23 2009.

Among a normal question arises is, “Can a Non-Muslim Spouse have a Right of Guardianship over his/her under age Muslim Children”? To be specific, “Can a Non-Muslim Mother have a right of guardianship over her under age Muslim Children?”

To begin, the library research is the methodology used to prepare this article. The research showed that before determining the Right of Guardianship belongs to whom, 3 factors need to be well thought-out. They are the provisions of laws, the best interest of the child and the principle of guardianship.

In order to answer this question as I mentioned above, we must construe first what is the meaning of Right of Guardianship, what is the other terms related to it and what is the meaning of under age children. Then, we have to identify what is the right of guardianship. Lastly we will discuss on the factors which are taken into concern to determine whether a Non-Muslim Mother can have a Right of Guardianship over her under age Muslim Children or not.

2.0 Definitions

First of all, ‘Guardian’ is a term which is multifarious meaning. In the context of custody and guardianship today, ‘Guardian’ means one who has powers over a child’s upbringing, care, discipline and religion. ‘Custody’ refers to the state of having certain rights over a child, which rights may include care and control of the child . Minor or infant may be both refer as ‘infant’ or ‘child’. The meaning of under age children subject to law can be referred to The Child Act 2001 which defines a “child” as a person under the age of 18. Inter Alia the Age of Majority Act 1971 also emphasizes on the age of majority as at 18 years old. The Act itself acquire a person who is under 18 years old should have the parent custody which including the protection and care . These laws are applicable for Muslims and Non-Muslims.

Bare in mind, when we argue about guardianship, it must also include the custody. Custody is a part of guardianship. But guardianship does not consist of custody wholly. The Right of Guardianship includes the right of child’s upbringing, care and discipline and right to determine the child’s religion . To simplify, it is appropriate for us to state that guardianship includes child’s upbringing, care, discipline, religion and further more custody. As far as this article is concerned, to the best of my knowledge, I believe it is appropriate for me to emphasize more on the Right of Guardianship in the context of determining the religion of the children.

Now, we move forward to the next point that is really crucial for us to discuss. Who has the merit to have the Right of Guardianship of the under age Muslim children? Whether it is the converted Father or the Non-Muslim Mother?

There are 3 essential factors in discussing who can have the Right of Guardianship. There are the provisions of laws, the best interest of the children and the principle of guardianship.

3.0 The Provisions of Laws

Under both laws; Civil law and Shariah Law, a same modus operandi need to be adhered in determining who can have the Right of Guardianship. This principle has been introduced in Law Reform (Marriage & Reform) Act, (1976) for the Non-Muslim couple marriage per se and Islamic Family Law (Federal Territories) Act, (1984) for Muslim couple marriage per se. Both laws necessitate the best interest of the child as the utmost paramount consideration. However, both laws are silence, when it involves spouses whom included Muslim party and Non-Muslim party. As consequence, numerous cases which implicated this issue cannot be settled and thus created more tensions and un-gratification on the part of the losing party.

In Islam, a converted parent has a Right of Guardianship in changing a religion of their child. Allah s.w.t mentioned in Al-Qur’an, (Surah At-Thuur 52:21):-

21. And those who believe and whose families follow them in Faith, to them shall We join their families. Nor shall We derive them (of the fruit) of anything of their works, (yet) is each individual in pledge for his deeds.

According to Islamic School of Thoughts, Jumhur Ulama’ (Al-Hanafiyyah, Al-Shafi’iyyah and Al-Hanabilah) in a view that a child of a converted parent must follow the religion of Islam regardless the converted parent is the father or the mother.

In Malaysia, two important provisions which are significant to this matter are Article 12 (4) of Malaysian Federal Constitution and Article 12 (3) of Malaysian Federal Constitution. According to Article 12 (4) of Malaysian Federal Constitution, “For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian”. Article 12 (3) of Malaysian Federal Constitution states that “No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.”. It is to be noted that, these two provisions must be read together with Article 3 of Malaysia Federal Constitution. From here, it seems that the weight is more on the converted Muslim parent. A Muslim parent has Right of Guardianship to determine the child religious education which also includes the religion of their child in this context and since Islam is the religion of Federation.

However, the weight will not be always on the Muslim Father’s side, whereby the court will consider fact of the case and some circumstances occurred. The skeptical idea among the non-Muslims Malaysians is that once a father converted to Islam, the child/children will follow them as in Civil Law, which applies a principle of ‘a child must follow the religion of his/her father’. It is totally vise versa. We may refer to the case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals (2008) , where the Right of Guardianship vested on the father’s hand and in Nur Aishah Suk@ Sukwinder (1999) , where the Right of Guardianship vested in the hand of the converted mother.

4.0 The best interest of the child

The best interest of the child is very utmost fundamental factor in deciding who has the Right of Guardianship. The best interest of the child includes welfare of the child as to protect the child themselves. It must be taken into consideration in deciding, who is the one who deserve to have a Right of Guardianship over their under age Muslim children. Tuan Haji Zainul Rijal suggested that to settled this dispute, the best interest of the child should be taken into consideration. He referred to Kitab Sayid Sabiq, “ The right of the person over whom the custody exercised is stronger than the right of the person who has the custody “ .

Both Civil Laws and Shariah Laws unanimously agreed that the best interest of a child should be taken into consideration in deciding who has the Right of Guardianship. For Civil Law, we may refer to Section 88 of Law Reform (Marriage and Divorce) Act, (1976) and Article 16 (1) (d) of Convention on the Elimination of All Forms of Discrimination against Women. These 2 provisions remark the interest of the children shall be paramount in nature in consideration to the parent’s right and parental responsibilities.

In Islam, as far as a converted Muslim father is concern, he can have the Right of Guardianship in determining the child’s religion. He can preach them together and embrace Islam. This acts are consider as the best interest of the child since it is for the protection of the children. This is because the principle of “al-shaghir yatba’u khayr al-abawayn dinan” which means “the child follows the best religion of his parent” do applied . Since Islam is deemed to be the best religion, therefore, the child follows the religion of his/her Muslim parent (either mother or father) and it is considered as the best interest of the child itself.

Wan Azhar Wan Ahmad again in his article has highlighted that :-

If only one parent crosses over to Islam, either father of mother, their underage child becomes Muslim too. Between 2 parents, the position of the one who embraces Islam is stronger compared to the non converting spouse. Therefore, the child follows the religion of the stronger party.

To support this, there are many evidences to show Islam is considered to the best religion of the child. One of them can be seen in the hadith which involved Rafi’ b. Sanan:-

Rafi’ b. Sanan narrated a tradition to me. He said that he accepted the faith of Islam but his wife refused to accept it. She went to the presence of the Prophet and said, “My daughter’s feeding by me has been stopped (by the father)”. Rafi’ said, “She is my daughter”. The Prophet asked Rafi’ to take his seat at one side and the woman on the other side and directed them to make the daughter sit between them. Thereafter he asked both of them to call their daughter to them; (call being made) the daughter (seemed) inclined towards her mother. Thereupon, the Prophet prayed, “May God guide her (the child). Then she got inclined towards her father. Consequently Rafi’ picked up his daughter.

5.0 Principle of Guardianship

Principle of guardianship always been referred as a principle of parental responsibilities. This principle requires the equality in guardianship between parents in the marriage. However the laws are silence when it involves the Converted Muslim Parent and Non-Muslim Parent.

According to Memorandum: Safeguard Rights Of Wives And Children Upon Conversion Of Husbands To Islam (2007) sent by Joint Action Group for Gender Equality (JAG), they claimed that by allowing the converted parent to convert his child’s religion to Islam will infringed another’s parent right over the child.

They also contended that Section 5 Guardianship of Infants Act, (1961) promotes the equality of parental rights and this law shall be applicable to the converted Muslim by virtue of Section 1 (3) of the same Act. These provisions may connote that the Act is applicable to Muslim as long the Act has been adopted by law made by the Legislature of that State and as long it does not contrary to Islam. Hence, once a parent converted to Islam, the converted parent should have the equal parental responsibilities with the other non-Muslim parent. However, the Guardianship of Infants Act, (1961) is not applicable to Muslim by virtue of Section 1 (3) of the same Act. If the exception in Section 1 (3) of Guardianship of Infants Act, (1961) has been contented by JAG group, unfortunately, there is none of the State Legislatures who adopt Guardianship of Infants Act, (1961) in the State Law which involve Muslim family law indirectly. Therefore, Muslim party is not subject to this Act. Therefore, both parents can have right of Guardianship over their under age children.

This is also supported by Article 16 (1) of Convention on the Elimination of All Forms of Discrimination against Women, (1979) which promotes the equality right for both parent over their child and no discrimination on women on this matters.

Furthermore, Article 8 of Malaysian Federal Constitution states “All persons are equal before the law and entitled to the equal protection of the law”. This article promotes equality between men and women in all aspects including marriage and education. That’s why the equal right between both parents in right of guardianship in determining the child’s religion is very significant.

Then, Article 12 (4) of Malaysian Federal Constitution states “For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian”. However, the word parent in Article 12 (4) of Malaysia Federal Constitution may be read collectively (both parent consent needed) or non-collectively as in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals (2008). A parent has right to determine the child’s religion’s education which include the child’s religion. No consent needed to be obtained by another parent as regard to the child’s religion.

According to Mohd Haniff Katri Abdullah (2008), a member of Sarawanan’s legal counsel; “..it is wrong to assume that upon conversion to Islam, the husband no longer has any legal obligations towards his family……the obligation is still exist. Only now, they must be based on Islamic principles.”

6.0 Conclusion

In conclusion, to answer the question, there is no direct answer as whether a Converted Muslim Father or Non-Muslim Mother can have a Right of Guardianship over their under age Muslim Children. There are three points to be well-thought first before deciding who can have such right regardless of the religion of the spouse. The paramount consideration should be taken in solving this matter. If the weight is more on the Non-Muslim Mother’s side, it will be the merit for the mother to have the Right of Guardianship over her under age Muslim children and also vise versa.

This article suggests tolerance as the key to settle this problem. An amicable tolerance should be inserted in a negotiation made between parents by holding Islam as a yard-stick. The discussion among the Muslim scholars and other religions should be made in order to settle this issue. The discussion conducted should achieve to an ended-solution by not neglecting the major principles in Islam as Islam is the religion of Federation. The legislation also shall play their role in making a clear-cut provision on this issue to end a non-settled dispute by law. This matter is not as gigantic as it was publicized by media. It can be settled provided it has been done in a proper way.