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Tidak mengapa jika nak buat juga. Buat lah secara tertutup bersama mahramnya atau semasa wanita. Begitu juga bagi lelaki tidak terkecuali. Apabila menari bercampur lelaki perempuan. Ia tidak boleh di sisi syarak.
Victoria Jayaseele Martin ('the applicant'), an advocate and solicitor of the High Court of Malaya, applied to be admitted as a Syarie lawyer in Wilayah Persekutuan, Kuala Lumpur. Her application was denied on the grounds that she was not a Muslim. This was the applicant's application for judicial review of the decision by the Majlis Agama Islam Wilayah Persekutuan ('the first respondent'), on the grounds that the first respondent had acted with illegality, irrationality, unreasonableness and in excess of jurisdiction when it denied her admission as a Syarie lawyer in Wilayah Persekutuan because she was not a Muslim. By way of this application the applicant sought, inter alia, a declaration that r 10 of the Peguam Syarie Rules 1993 ('r 10') mandating that only Muslims may be admitted as syarie lawyer was ultra vires the Administration of Islamic Law (Federal Territories) Act 1993 ('the Act') and also void for contravening arts 8, 5 and/or 10 of the Federal Constitution ('Constitution'); and an order of certiorari to quash the first respondent's decision. Meanwhile, the first respondent applied to strike out the application for judicial review as an abuse of process, frivolous and vexatious. The first respondent submitted that the civil court had no jurisdiction to hear this matter since it involved matters within the Shariah and that r 10 was valid and passed in accordance with the Act.
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Both the applicant's application for judicial review and the first respondent's striking out application were heard together. The applicant submitted that under s 59(1) of the Act the first respondent must admit any person having sufficient knowledge of Islamic law as a syarie lawyer and that a person need not be a Muslim to have sufficient knowledge of Islamic Law. The applicant further argued that the first respondent's requirement that the person seeking appointment as a syarie lawyer must be a Muslim was an additional requirement that the Legislature did not intend. As such it was the applicant's argument that the first respondent had exceeded its legislative power when it enacted r 10, which mandated that only Muslims may be admitted as a syarie lawyer.
The first respondent submitted that it was empowered under s 59(2) of the Act to legislate on the qualification of a Syarie lawyer and that r 10, which required the person seeking appointment as a syarie lawyer to be a Muslim, was made under s 59(2) of the Act. (1) Since s 59(1) of the Act begins with the opening words 'subject to subsection (2)' it must be read subject to sub-s (2). In clear plain language it means that the discretion of the first respondent to admit any person with sufficient knowledge of Islamic law to be a Syarie lawyer is subject to sub-s (2) and that s 59(1) did not stand alone without condition. Further the words 'may admit' in s 59(1) of the Act denote that it is not mandatory for the first respondent to admit a person solely on the basis of having sufficient knowledge of Islamic Law. It was the intent of the Legislature to delegate to the first respondent the power to determine the necessary qualification at its discretion.
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