Shariah and civil lawyers: What is the difference?

08-Dec-2016 Intellasia | AFP | 6:00 AM Print This Post

The recent proposal to create a separate Bar in order to standardise Shariah legal practice across the country has raised the question of the qualification process and training required to become a Shariah lawyer.

But is it really necessary to form a separate Bar to regulate the legal profession for Shariah lawyers?

Malay Mail Online spoke with legal experts to find what is currently lacking and how a Shariah Bar can address them.

Becoming a civil lawyer

To become a lawyer in the civil courts, one would need to first obtain either a local university law degree or an overseas one and then sit for Certificate in Legal Practice (CLP).

After that, a candidate would need to complete nine months of chambering or apprenticeship before they can finally be called to the bar for the admission as an advocate and solicitor.

The admission of lawyers in the civil courts is governed by the Legal Profession Act 1976 that regulates and determines the qualifications, tests, and admissions for advocates and solicitors to the Malaysian Bar, the legal professional body for all states in peninsular Malaysia

Becoming a Shariah lawyer how is it different?

But the path towards becoming a lawyer in the Shariah courts is not so straightforward, mainly because of the different rules governing the practice in different states.

“For Shariah courts every state has different criteria. For example some states recognise other religious qualifications if one does not have a Bachelor of Law Shariah (LLB Shariah degree),” Datuk Kuthubul Zaman Bukhari, chair of the Shariah Law Committee of the Bar Council told Malay Mail Online when contacted.

There are currently two types of Shariah lawyers: those who have obtained a Shariah law degree and have a post-graduate diploma in Shariah Law and Legal Practice (DSLP).

Those who fall in this category have not been called to the bar and therefore are not members of the Malaysian Bar. They are instead members of the Malaysian Shariah Lawyers Association (PGSM).

There are also those who are advocates and solicitors and have a post-graduate diploma in Shariah Law and Legal Practice (DSLP). Those who fall under this category are qualified lawyers in both civil courts and Shariah courts.

“Lawyers from both categories need to sit and and pass the examination and interviews by state Islamic authorities to become a Shariah lawyer,” (PGSM) president Musa Awang told Malay Mail Online.

According to Musa, the criteria to becoming a Shariah lawyer varies according to state. For Selangor, Negri Sembilan and Perak, one would need to first get a Shariah law degree and a post-graduate diploma in DSLP or become an advocate and solicitor with the same diploma.

He said that prospective candidates would then need to complete three to nine months of chambering and pass an examination and/or an interview after that before they can be admitted as Shariah lawyers.

In other states however the criteria is slightly different as they do not make it compulsory for prospective Shariah lawyers to have a post-graduate diploma or to seek apprenticeship with a firm which has more than seven years’ experience.

Nisam Bashir, who is both a civil and Shariah lawyer said that the qualifications of Shariah lawyers are set out in legislation enacted by Parliament (if they are seeking admission in either of the three Federal Territories of Kuala Lumpur, Putrajaya or Labuan) and state legislative assemblies.

“They don’t necessarily need to be advocates and solicitors or have a law degree pursuant to the provisions of those legislation,” he said.

Nisam said that bulk of Shariah practice at the moment lies in Islamic family law and succession, but added that even within a limited scope of practice there is growing demand for the services of a competent Shariah lawyer.

Why a Shariah Bar?

Proponents argue that a Shariah Bar will streamline the admission methods of different states for those who want to become Shariah lawyers and allow them to practice in all states.

Currently, some Shariah lawyers may not be able to practice in some states due to rejection of their applications by the respective state Islamic religious councils.

“For the setting up of the Shariah bar, Parliament only needs to pass the Bill of (the) Shariah Legal Profession Act (SLPA) or what is known as Akta 355,” Musa said.

He added that PGSM had drafted the SLPA and submitted it to the Attorney-General’s Chambers and the Malaysian Islamic Development Department (Jakim) back in 2012.

The introduction of a federal Shariah legal body amid state legislations would require the consent of the Rulers and agreement from the state governments. While civil law is federal, Shariah legislation is under state jurisdiction.

Wanita Umno chief Tan Sri Shahrisat Abd Jalil suggested last week at the Umno general assembly the formation of a Bar Council equivalent for Shariah lawyers, which she said should be administered by the Conference of Rulers.


Category: Malaysia

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