Siti Nurhayati bt Mohd Daud v Dato’ Mohd Zaidi bin Zain [2009] 1 SHLR 69

Siti Nurhayati bt Mohd Daud v Dato’ Mohd Zaidi bin Zain [2009] 1 SHLR 69

Syariah High Court (Kuala Lumpur)

Syarie Lawyer Etiquette – Conflict of Interest

 

Facts

1.      Dato’ Mohd Zaidi bin Zain (“the Respondent”) was a Syarie lawyer to Wan Baharuddin bin Wan Suleiman and Wan Shariman bin Wan Suleiman (“the Defendants”) in the Case No. 14200– 017–008 of 2001(“the First Case”).

2.      The First Case was resolved through a settlement agreement of jointly acquired property dated January 10, 2003 (“the Settlement Agreement”) which was made into a consent order.

3.      Subsequently, the Respondent represented the mother of his two clients, Zaiton bt Mohd Din (“the Plaintiff”) in Case No. 14100– 017–176 of 2004 (“the Second Case”) claiming the division of jointly acquired properties agreed upon between Siti Nurhayati bt Mohd Daud (“the Applicant”) and the Defendants.

4.      The Applicant was named as the First Defendant, while Zaiton’s children, Wan Baharuddin bin Wan Suleiman and Wan Shariman bin Wan Suleiman, were named as the Second and Third Defendant in the Second Case.

5.      Further, the Respondent had been appointed as Syarie lawyer by the Defendants in Case No 14200–099–0157 of 2005 (“the Third Case”) in which the Plaintiff was applying for a declaration to cancel the consent order due to the failure to comply with the Settlement Agreement.

6.      In this present case, the Applicant sought an order to restrain the Respondent from representing the Plaintiff in the Second Case and the Second and Third Defendant in the Third Case.

7.      The Applicant contended that the Respondent, as a Syarie lawyer has violated the Syarie Lawyer Etiquette Rules (Federal Territories) 2000 because initially, he represented the children as Defendants, and later in another case, he represented the mother as the Plaintiff and her previous children as Defendants, along with the Applicant.

8. All these cases involved the assets of the late Tan Sri Wan Sulaiman bin Pawan Teh.

 

Issue

1.      Whether the Court had jurisdiction to debar the Respondent from representing the parties?

2.      Whether the Court had the power to issue a notice of warning to the Respondent to comply with the Syarie Lawyer Etiquette Rules (Federal Territories) 2000 due to the non-compliance thereto, failure of which would entitle the Respondent to be struck off as a Syarie lawyer?

Ratios

First Issue: Whether the Court has jurisdiction to debar the Respondent from representing the parties?

1.      Section 46(2)(b)(x) of the Administration of Islamic Law (Federal

Territories) Act 1993 (“Act 505”) read as follows:

“46(2) A Syariah High Court shall—

(b) in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties are Muslims and which relate to—

(x) other matters in respect of which jurisdiction

is conferred by any written law.”

2.      The aforementioned provision specifies two conditions for the jurisdiction of the Syariah High Court wherein all parties must be Muslims   and   other  matters   related   to  its   jurisdiction   are determined by any written law.

3.      The Syariah High Court in the present case was satisfied that all parties herein are Muslims and was not disputed. However, for the second condition, the Syariah High Court made a reference to Section 59(1) of Act 505 in regards to the appointment of Syarie lawyer which provides as follows:

“59(1) The Majlis may admit any person having sufficient knowledge of Islamic Law to be Peguam Syarie to represent parties in any proceedings before the Syariah Court.”  

4.      Based on this provision, it is clear that the Majlis Agama Islam Wilayah Persekutuan Kuala Lumpur (“the Majlis”) has the authority to appoint a qualified person as a Syarie lawyer. However, if there is a dispute about whether a particular Syarie lawyer is fit to represent someone in Court, it is important for the Syariah High Court to define the Majlis’s authority as outlined in Section 4(1) of Act 505 herein-

“There shall be a body to be known as the “Majlis Agama  Islam  Wilayah  Persekutuan”  to  advise  the Yang di-Pertuan Agong in matters relating to the religion of Islam”

5.     It is clear that the Majlis is an executive body established to safeguard the interests of Islamic affairs in the Federal Territories. It is an organization that manages the administration of Islamic affairs and is not a legislative This is clearly provided under Section 5 of Act 505 for the following reasons:

  • The Majlis is a
  • The Majlis can sue and be sued in its corporate
  • The Majlis can enter into contracts and obtain
  • The Majlis must have the authority to act as an executor of a

6.     The Syariah High Court held that when a dispute arises concerning the qualification of a Syarie lawyer, it shall be the Court’s duty to decide, and not the Hence, the Court shall be the institution responsible for adjudicating disputes that arise between parties, and this jurisdiction is as provided under Section 59(1) of Act 505.

7.     Therefore, this provision aligned with the second condition, which is “other matters related to its jurisdiction are determined by any written law.”

8.     It  was  held  that  the  Court  has  the  jurisdiction  to  debar  the Respondent from representing the parties.

Second Issue: Whether the Court had the power to issue a notice of warning to the Respondent to comply with the Syarie Lawyer Etiquette Rules (Federal Territories) 2000 due to the non-compliance thereto, failure of which would entitle the Respondent to be struck off as a Syarie lawyer?

9.     Section 59(2)(b) of Act 505 provides-

          “59(2) The Majlis may, with the approval of the Yang di-Pertuan Agong, make rules–

           (b) to regulate, control and supervise the conduct of Peguam Syarie.”

10. To implement this provision, the Majlis has established the Peguam Syarie Rules 1993 (“P.U. (A) 408/93”) which, among other things, outlines the methods for regulating, controlling, and supervising the conduct of Syarie lawyers whereby the Syariah High Court referred to related provisions as follows:

Rule 17 of P.U. (A) 408/93

  • A Peguam Syarie shall be subject to the control of the Committee and shall be liable, on due cause shown, to be censured, suspended or removed from the

Rule 18 of P.U. (A) 408/93

(1) Any complaint concerning the conduct of any Peguam Syarie in his professional capacity shall be made to the Committee.

Rule 19 of P.U. (A) 408/93

In addition to the power conferred by these Rules, the Committee, on the hearing of any application or complaint made to it under these Rules, shall have power to make such order as it thinks fair and reasonable, and any such order may in particular include provision for any of the following matters:

  1. striking off the Register the name of the Peguam Syarie to whom the application or complaint relates;
  2. suspending the Peguam Syarie from practice;
  3. censuring the Peguam ”

 

  1. According to the Peguam Syarie Rules 1993, any complaint about a Syarie lawyer’s misconduct should be brought to the Peguam Syarie Committee, set up by the If the complaint is proven, the committee can take action against the concerned lawyer.
  2. Therefore, the jurisdiction involving the misconduct of a Syarie lawyer falls squarely within the jurisdiction of the Peguam Syarie Rules Committee and not with the Court.
  3. It was decided that the Court had no power to issue a notice of warning to the Respondent to comply with the Syarie Lawyer Etiquette Rules (Federal Territories) 2000 due to the said non- compliance. 
Decision
  1. The application was dismissed.
Key Take Away
  1. The disputes about the qualification of a Syarie lawyer are decided by the Court, not the Majlis.
  2. The complaints about Syarie lawyer’s misconduct should be directed to the Syarie Lawyers Committee established by the Majlis since the Committee has jurisdiction over such matters, not the Court.

 

 

 

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