CONCEPT OF AL WAKALAH AND HOW IT’ S PRINCIPLES APPLY TO
LEGAL PROFESSION
Legal profession plays an important role in the administration of
justice. As part of the legal professions, lawyers have unique roles of
creating proper image and building confidence and trust of the public
through observing certain code of ethics. Lawyers are bound with a high
standard of code of ethics to ensure that the profession is able to fulfill its
role within the justice system adequately and lawyers are ethically
equipped for the powerful roles that they play in the society. The lawyers’
code of ethics reflects standards of chosen behavior and provides
guidelines for desirable conduct between individual lawyers, clients, courts
and public at large.
Generally, a lawyer refers to a specialist in or a practitioner of law,
one as an attorney, counselor, solicitors, barrister or advocate whose
profession is to conduct lawsuit as to legal rights and obligations in other
matter. In the context of Malaysia, lawyers can be divided into two namely
an advocate and solicitor and a Peguam Syarie. An advocate and solicitor
is a lawyer admitted and enrolled under the Legal Profession Act 1976
whereby a Peguam Syarie refers to those who practice specifically in the
Shariah courts. The advocates and solicitors may also practice in the
Shariah courts provided that they are qualified and fulfilled all the
requirements of Peguam Syarie as stipulated in the Peguam Syarie Rules.
Profession of lawyers had already existed since the early period of
Islam although it was not formally or specifically called as lawyers or
solicitors or barristers. In fact, the principle of wakalah bil khusumah
(agency) has already been practiced as the time of jahiliyah where any
legal dispute would be referred to kahin or arbitrator. The arbitrator is
appointed from the respected tribe and a noble family. During the time of
the Prophet, the practice of wakalah can be seen in the case of Muadz bin
Jabal be appointed as a Judge in Yemen. The Prophet also asked Unais to
determine conviction and enforcement of hudud punishment on an adultery
offender.
Wakalah literally means protection, delegation, or authorization.
Legally, wakalah refers to a contract in which a person who has complete
legal capacity authorizes another to conclude a certain well‐defined
permissible contract on behalf of that person. Wakalah can be defined as
preservation or submission or representation. While khusumah means a
true claim or a clear answer by saying "yes" or "no". The concept of
wakalah bil al-khusumah gives meaning to the debate that takes place
between two disputing and quarreling parties.
Implementation of Al Wakalah Bil Khusumah Currently in Syariah
Courts. The appointment of syarie lawyers is provided for under section 34
to section 39 of the Syariah Courts (State of Selangor) Civil Procedure
Enactment 2003. Section 34 of this enactment provides for the appointment
of syarie lawyers to be made before the registrar with using form MS 5 in
the enactment. Section 34. describes Wakalah i.e., The appointment of a
Peguam Syarie shall be pronounced by the person appointing him, and
accepted by a so-appointed Peguam Syarie, before the Court or the
Registrar. secondly, If a Peguam Syarie has accepted his appointment
under subsection (1), he shall, before taking any steps in the proceedings,
file a wakalah in Form MS 5.
Sections 35 to section 39 provide for the delivery of syarie lawyers,
conversion and release of syarie lawyers, release on syarie lawyer's
application and death. Based on the State Islamic Religious Administration
Enactment, a by-law has been passed to regulate the administration of
matters related to syarie lawyers. This can be seen for example in section
80 of the Administration of the Religion of Islam (State of Selangor)
Enactment 2003. Based on this provision, the Council is empowered to
make the Rules of Peguam Syarie for their respective states. Among the
rules enacted are the Peguam Syarie (Kelantan) Rules 1988, the Peguam
Syarie (Pahang) Rules 1990, the Peguam Syarie Rules (Melaka) 1989 and
so on. These existing rules are also amended from time to time. The latest
example for Kedah is the Peguam Syarie (Kedah Darul Aman) Regulations
2016.
Concept of wakalah al khusumah is not a new things but already has
been a practice during the times of prophet and sahabah. The
implementation of al wakalah bil khusumah in the time of Rasulullah S.A.W.
can be seen through the hadith of Jabir Bin Abdullah r.a. He said, “One
time I wanted to go out to Khaibar, then I went to see the Prophet S.A.W. I
told him about my intention to go to Khaibar, then his Majesty S.A.W. said,
if you meet my representative, then take from him fifteen barrels (wheat)
and if he asks you for proof (that you are my representative) then put your
hand on the shoulder as proof. " In this hadith it is clearly shown that
Rasulullah S.A.W. itself adopts the concept of representation in daily
affairs.
The principle of al wakalah bil khusumah can also be seen in the time
of the companions. Sahabat acts as a syarie lawyer and represents the
parties in solving problems. Although no formal appointment process has
been made, the concept of representation is clear. The companions
represent the parties in achieving justice as well as being experts in
unraveling things that the common people do not know. An example is the
events that took place in the time of Caliph Umar Al-Khattab r.a. in the year
of famine. In this event Saidina Ali r.a. has played the role of a
representative of a woman who had met and asked Caliph Umar r.a. to
impose a stone on him. The woman had claimed that she was pregnant as
a result of adultery. However, Saidina Ali r.a who acted as a representative
has examined the case and identified the factors that caused the woman to
commit adultery. The results of the investigation found that the woman had
been raped and the adultery that took place was not of the woman's will but
was forced to save herself from starvation. The adulterous couple provided
that the milk would be given to the woman only if the woman gave up.
Saidina Ali r.a. clearly played his role as a representative to defend the
woman who was eventually released from punishment on the grounds of
emergency. This event clearly shows the importance of a representative
which can prevent the occurrence of unfair punishment on the party
the persecuted.
As a conclusion, the Syariah Courts Civil Procedure Enactment as
well as the Rules of Peguam Syarie of the States which provide for the
appointment and governance of syariah lawyers are a continuation of the
previous Islamic law. The provisions of the law in question should be
recognized under the principle of Istihsan, Masalih
al Mursalah and Siasah al Syar’iyyah. In fact, the provisions of the law are
in accordance with the general principle of al wakalah bil khusumah
according to Islamic law. It also meets the requirements of Islamic
principles that emphasize justice achieved through clear government
actions.
