I was finally called to the Syariah (Federal Territories) Bar in June 2018.
That was my fifth attempt.
The journey to that point started in 2010 when I signed up for the Post Graduate Diploma in Syariah and Practice (DSP) in Universiti Teknologi MARA (UiTM). I did the course together with Syahrul, who was my pupil at the time, and his housemate, Azwar. They both recently graduated from UiTM. I did it to have the DSP serve as my course content for the Kuala Lumpur Syariah bar exam that I intended to take. It was also meant to serve as my second encounter with the Syariah; I took Islamic Law as an elective subject in my final year at Bristol University.
The DSP course was held every Saturday. It ran from eight in the morning to nine at night. Nine months. Every Saturday we had two-hour lectures, one after the other, breaking only for lunch from one to two. Then more two-hour lectures, one after the other until nine at night. Despite all those hours, many of us did not pay attention. The study material was tedious and the lecturers personified tedium.
Our bodies were present but our minds were generally elsewhere. I felt like I was back in secondary school but now all grown up, a lawyer with a family. Most of us were on our Facebook, watching movies with subtitles on, doing other work, or busy texting. Syahrul, Azwar, and I saw all that because we sat right at the back middle part of the class. Instead of indulging in that, I wrote several essays for Loyarburok during class. It was a delight to discover I was at my creative and productive height when I should really be focusing on the class.
There was a ten to fifteen-minute break at the end of each lecture. Not because it was scheduled, but because I needed a cigarette break from pretending to pay attention after an hour forty-five. Duplicity drains.
I don’t know how anyone can learn anything like that – hour after hour of lectures, like waves crashing upon an indifferent boulder. But it seems to be a Malaysian education thing. I suffered the same manner of instruction for my Certificate of Legal Practice course in 1998. We had several different law lectures scheduled back to back over several hours. Although my mind would switch off after forty-five minutes, my hand continued writhing like a leopard gecko’s tail after it fell off. My right hand worked directly with my eyes and ears, bypassing my mind, recording for posterity.
Sometimes the lecturers could not make the scheduled times. To make up for it, they would schedule a three-hour lecture extravaganza. And if two of them wanted to reschedule, we would have those five, six-hour epic lectures.
That was a vast difference from how our lectures were in our university in England. A lecture was an hour, max. The lecturers were often done by the fiftieth, latest fifty-fifth minute. Then they left us alone with our reading list. It was rare for the faculty to fix one lecture immediately after another. If it happened, it was usually because of the electives we took. We, law undergraduates, were given plenty of time and space to read, explore, think and reflect; so the theory went… The law course in Bristol was the course with the second least most lecture hours. The one with the least was English literature.
My sense of it is Malaysian ‘educators’ see us as empty vassals. Education is about filling empty vassals with information. Since education is simply a matter of filling a vassal, our time is simply meant to be filled up acquiring information, and then tested for retention through exams. Poor results mean poor absorption of information. Good results reflect a mind that knows what to regurgitate on cue. It is a ‘filling empty vassals’ mindset that conceives of scheduling law lectures (or any subject) back to back for long hours. In all that yammering, learning is lost, understanding remains a sperm.
A week before the final exams for the DSP, our usul fiqh (Islamic Jurisprudence) lecturer called me out of the blue. After our niceties,
“The exam starts next week. How is your preparation?” he asked.
“It is good, uztad. Insyallah, I should be prepared for it.”
“Good. Good. I called you because I want you to consider wearing a songkok for the exams.”
“I see. If that is the case, of course, I will wear it. I didn’t know it was compulsory.”
“No, no. It’s not compulsory. I am worried they stop you from entering the hall. If you are not appropriately dressed they may bar you from entering.”
“I see. May I ask, what is the songkok supposed to do?”
“To tuck your hair under, of course! Your hair is long. An examiner may object to you entering the hall. You should wear a songkok. Tuck your hair under it. That’s what I wanted to suggest to you.”
“I see. I see. Thank you for your advice, uztad. I will take your advice.”
On the first day of the exam, as I walked towards the exam hall, no one I saw wore a songkok. I drew curious looks, amused smiles, and discrete finger-pointing. I could not have stood out more if I had taken my pants off. They all had a look about them which asked, Why is he wearing that for the exam? Has he got some kind of trick going on?
When I reached the examination hall where Syahrul told me he was, I was pleased. Turns out he was the only other guy in a songkok. He too had long hair. He too received the same call from the lecturer. We were, of course, teased by our classmates who were amused to see both of us in songkoks. The songkok will not buy you marks, lah! That’s not the way to win Allah’s favour. Maybe after this, they will become the uztads instead. What hypocrites!
I eventually passed all my exams and graduated on 25 November 2010 together with Syahrul and Azwar.
I signed up to take the Kuala Lumpur Syariah bar exams right after that in 2011.
How we went about it back then until 2016 was we first attended a day of lectures. The lectures were from nine in the morning to five in the evening. The allotted time for each lecturer was an hour and a half each. You can only cram four lectures of that duration in a day. Those lectures would often comprise of a pick of four subjects: Syariah criminal procedure, Syariah civil procedure, Islamic family law, the Islamic administration, its organizations, or a lecture about relevant civil court decisions that involve the Syariah courts or state religious department.
We were lectured on four subjects but tested on six. For the exam itself, there were also usul fiqh i.e., Islamic jurisprudence, Fara’id (Islamic inheritance) formulas and calculations, a translation of a scholar’s text from Arabic to Malay, Syariah evidence, and criminal law. Unless you were conversant in Arabic you would be deprived of one compulsory question, as I was. I burned ten marks skipping the translation question on top of another five for not attending all the classes. In Malaysia, students get marks for just turning up; amazing.
Back then, after a day of lectures, we sat for the exam the next day.
There were no courses or textbooks you could rely on for the exam. There were no past year papers to practice. The Jurnal Hukum was not easily accessible, not that it was terribly relevant. Many of us were dependent on ‘tips’ that were hinted at by the lecturers about what we could expect for the exam. I felt like I was in secondary school sitting for SPM again. Tip. Tip.
Prior to my first attempt, I had no idea what areas we would be tested on. From the lectures, I heard we would be tested on more or less what I learned for the DSP. But we didn’t know what exactly we were going to be tested on and how we were expected to answer the questions.
Naturally, I flunked the first time, DSP notwithstanding.
You are only told whether you passed or failed your exam. You are not told your marks. You do not get to see where you went wrong and learn from that. You do not get to keep the question paper and none are available for reference, study, or practice. All I knew was I failed. It was frustrating.
For those reasons, I flunked the second time in 2012. Third time in 2014. It was hard to motivate myself for future exams at the time. There was not enough time and material to process the lectures sufficiently to answer the exam questions. It was difficult when the exam came right after the lectures. I had to do most of the reading and understanding myself before the lectures. And yet, it did not instill any confidence in me.
In 2017, I picked up new wind about it and persuaded two of my lawyers, Aizat and Farhan, to sit for the Syariah bar exams with me. Misery adores company. The more, the merrier. For that year the organizers of the exam did something different. We still had a day’s lecture but this time the exam was held a week later. I thought that was thoughtful and reasonable of them. This time the tips the lecturers dripped proved to be of actual use. We had time to read up and knew better where to focus. In that respect sitting for the exam was better this time.
And yet, Aizat and I failed. But Farhan passed! To me, an impressive feat. First timer and he did not even take the DSP! We were happy for him. Aizat was a little crestfallen.
I was keen about taking the exams again since they changed the format to a more reasonable one. Aizat was dissuaded at first. He was not used to failing, he was used to scoring. I assured him failure was fine so long as we learned from it. His first time was my fourth time, so don’t take it too hard! I was going to keep at it until I passed. I am going to sit for this exam until they pass me out of pity! That got a laugh from Aizat and he agreed to give it another go.
So we enrolled for the 2018 exams. Aizat declared that if he failed he would not sit for the exam again. I wondered how many more times I had to take it before I passed.
This time the planets aligned for both of us, Alhamdulillah, we passed. It was the exam I felt most confident about my answers compared to the previous four attempts. Aizat and I were called to the Federal Territories Bar on 28 June 2018. I was pleased and proud of this little accomplishment. I finally had the right to appear in the Syariah courts. I could now finally get direct experience of practice instead of hearing it from others.
I never thought I would end up as one and certainly possessed no ambition for it when I began practicing. However, as the years grew by I felt there was a need for it since I was often referred Syariah work but could not take it up. Now, I could. I was also curious about what the advocacy was like in the Syariah court and what matters I would get to do as a Syariah lawyer.
In closing, I want to share some advice for lawyers professing the religion of Islam reading this. It is the same advice I give my interns and pupils of such beliefs so do not readily accept it. It is what is known as ‘off the shelf’ advice; the type I spray about indiscriminately; it is advice not tailored to the uniqueness of you. So give it some thought and see how it sits with you before rolling with it or ignoring it.
I encourage you to qualify as a Syariah lawyer, in whatever state. It would add value to you as a lawyer. It does not necessarily mean you would have to do family, Syariah criminal defence, and estate planning and advisory work. It is enough that you are qualified and licensed to practice as one.
When I started out, I thought that was all there was. Since then I was appointed to provide expert evidence, legal opinions, contract advisory, and even corporate advisory and compliance work relating to Syariah law. I was surprised about the last two. And all that in the last three years. The work has been more varied and interesting than I expected, and I look forward to being continually pleasantly surprised.
Having a Syariah certificate of practice allows you and your firm to offer a wider range of services. At the very least, it will bring you a heightened awareness of Syariah issues that may strike matters under your care. I have since found the Syariah fascinating fertile field of study, discussion, and work.
In my short time at the Syariah bar, I have formed a tentative view about what a Syariah litigator needs to possess to be considered competent where their legal knowledge is concerned.
Firstly, he should have an understanding of the Federal Constitution, particularly those articles that relate to the jurisdiction of the Syariah court. The most important being Article 121(1) and item 1, List II, Schedule Nine, which together delineate the province of the Syariah courts. Since the Syariah courts are of exclusive and limited jurisdiction, it is important to know where those limits lie.
Second, he should have a familiarity with related legislation which provides the framework for the civil courts. That would include Part IX of the Federal Constitution, the Courts of Judicature Act 1964, the Subordinate Courts Act 1948, the Civil Law Act 1956, the Interpretations Act 1948 and 1967, and the leading civil cases that relate to them.
Third, he should know the legislation enacted that comprise the Syariah law such as The Administration of Islamic Law (Federal Territory) 1993 (Act 505), the Syariah Court Civil Procedure (Federal Territory) Act 1998 (Act 585), the Islamic Family Law (Federal Territory) Act 1984 (Act 303) and others. Each state has its own respective enactments that are similar to the Federal Territory Acts.
Fourth, having access to a set of the Jurnal Hukum is helpful for the decided cases published and an Islamic scholar’s commentary. Current Law Journal also has a collection of Syariah-reported cases. Court cases are an important source of authority.
If commentary is relied on in arriving at the decision then that commentary was endorsed by the court. Having said that it is helpful to have access to Islamic scholars or former Syariah judges to assist with this aspect of the doctrinal aspect of the arguments.
Finally, knowledge and understanding of judicial review; Order 53 of the Rules of Court 2012. This is a judicial mechanism that allows members of the public dissatisfied with a public authority’s decision or ruling to challenge its legality in court. Since a Syariah court is an inferior tribunal and under the superior court’s supervisory jurisdiction, it is subject to judicial review. For example, assuming one loses in the Syariah court of appeal, for instance, does not mean the case necessarily ends there. The decision is open to judicial review if it is tainted by illegality, irrationality, or procedural impropriety.
In the three years, I have practiced, there have been undoubted frustrations. But there have been moments of pleasure too particularly where the learning aspect is concerned. I have no regrets since donning my Syariah robes to practice. If anything, it has certainly made my work and life more interesting and varied. It has given me an added dimension as a lawyer and opened up a new landscape of law and life to explore.
Long may it continue to be a part of my repertoire, Insyallah.