I received an unexpected query via social media (WhatsApp) during the weekend. It came from a former student, now holding a senior position in the Syariah Court of a southern state. In recognition of his meritorious service to the state over almost three decades, he was conferred a Datukship recently. Not many of my former students continue to keep in touch with me after graduation, but he is one of those who like to maintain the “teacher-student” relationship.
Last Saturday, he asked me whether it was possible for a law on the syarie legal profession to be enacted by the state legislature? His actual words were “Bolehkah kita wujudkan Enakmen Profesion Guaman Syarie Negeri?” He went on to say that if it was so difficult for such a law (Akta Profesion Guaman Syarie) to be passed at the federal level, why not allow the individual states to pass their own state enactments? I told him that if his state government was prepared to do so, there should not be any legal or constitutional problem.
At the moment, we have 13 state syariah courts (11 in Peninsular Malaysia, one each in Sabah and Sarawak) governed by their own state enactments. There is a 14th syariah court for the Federal Territory of Kuala Lumpur, Putrajaya and Labuan. Each of these 13 states (and the Federal Territory) has its own state law governing the syariah courts, family law, criminal law, civil procedure, criminal procedure and evidence. In addition, some states (like Selangor and Negri Sembilan) have their own enactments on wakaf.
Syarie lawyers practising in these states are governed by subsidiary law enforced by the Majlis Agama of each state. A Selangor syarie lawyer holding a practising certificate in Selangor has to apply for a similar certificate in Melaka or Perak if he wishes to practise in those states. In short, matters relating to Islamic law are within the jurisdiction of the respective states. Just as there are 14 syariah courts, there are 14 chief judges (ketua hakim syarie) and 14 entities or authorities (Majlis Agama or Jabatan Agama, whichever is applicable) regulating the syarie legal profession in this country.
Over the last decade, members of Persatuan Peguam Syarie Malaysia (PGSM) had repeatedly called for the passage of a specific law equivalent to the Legal Profession Act 1976, naming it as Akta Profesion Guaman Syarie (Syarie Legal Profession Act, SLPA). Musa Awang, the president of PGSM, told reporters in July this year that they have been working on this objective since 2001 and that Prime Minister Datuk Seri Najib Razak himself had agreed to look into the matter in 2011. The prime minister made that commitment when he delivered his keynote address to members of PGSM at their second annual convention in Kuala Lumpur.
I know Musa personally, and I know that he and his colleagues in PGSM have been working hard on the SLPA. I hope he does not give up his mission despite being let down so many times by promises made to him that SLPA would be tabled in Parliament “soon”. I remember an occasion a long time ago when over coffee, (whilst waiting for a particular conference to begin) a certain federal minister told us, “I will make sure this law will be tabled in Parliament whilst I am still in this ministry/department”. He has since moved up the hierarchy of government and perhaps has forgotten what he had promised us.
Three things are necessary for a new law like SLPA to be tabled in Parliament.
FIRST, there must e a policy decision to have such a law;
SECOND, there must be sufficient time for the draftsman to work on the text of the bill before it can be given cabinet approval and tabled in Parliament; and,
THIRD (and this is the most important of all) there must be the political will to see it through.
According to Musa, the draft bill had been prepared by PGSM a long time ago. I am not aware whether it has been submitted to the Attorney-General’s Chambers for vetting and improvement.
Likewise, I have no idea if the bill is on someone’s agenda for it to be taken up for cabinet approval and then to be tabled in the Dewan Rakyat.
I imagine my former student was thinking of all this when he sent me his message last Saturday. He probably knew the answer to his question, but felt he needed to ask me for confirmation and assurance that he was on the right track.
According to the information I came across on PGSM’s official portal, the association had convened a workshop on the draft SLPA in April 2012 in Bangi, Selangor. It was attended by 70 participants, including five from each state. The workshop was officiated by Datuk Seri Jamil Khir Baharom, minister in the Prime Minister’s Department. There is no update on what happened after that.
Even if efforts are continuing at the federal level on the SLPA, that should not prevent my former student’s state government from taking the initiative to draft its version of SLPA because its impact will be limited to syarie lawyers practising in that state. In the event that the state SLPA is already in force when the federal law on the matter is later passed by Parliament, actions can still be taken to harmonise the two pieces of legislation.
The writer formerly served the
Attorney-General’s Chambers before he left for private practice, the
corporate sector and the academia