KAEDAH-KAEDAH PROFESION GUAMAN SYARIE (WILAYAH-WILAYAH PERSEKUTUAN) (PROSIDING TATATERTIB) 2024

A Disciplinary Board shall be established for the purpose of disciplinary proceeding under the Act.

The Disciplinary Board shall consist of the following members:

The appointment under subrule (2) shall be for a period of three years and may be extended for a maximum period of three years.

The Chairman of the Disciplinary Board shall preside at the meeting of the

Disciplinary Board and if the Chairman withdraws pursuant to subrule (6) or if the

Chairman is unable, due to illness or any other reason, to attend the meeting, the President of the Badan Peguam Syarie or his representative shall preside over the meeting.

If the President of the Badan Peguam Syarie or his representative withdraws pursuant to subrule (6) or is unable, due to illness or any other reason, to attend the meeting, the members present shall elect from among themselves to preside over the meeting.

The Chairman of the Disciplinary Board, the President of the Badan Peguam

Syarie or his representative and any other member of the Disciplinary Board appointed under paragraph (2)(c) shall, if necessary, in the interests of justice, withdraw from considering any complaint if there is any conflict of interests.

The Disciplinary Board may determine its own procedure.

Quorum of Disciplinary Board

The daily administration of complaints against a Peguam Syarie concerned shall be dealt with by the Complaints Secretariat.

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The Complaints Secretariat shall consist of a Director and a number of employees appointed by the

Majlis

Peguam

Syarie amongst those who the Majlis Peguam Syarie thinks fit.

The Director shall be the Secretary of the Disciplinary Board.

Majlis Peguam Syarie may, at any time, revoke the appointment of the

Director or employees appointed under subrule (2).

All complaints shall be lodge to the Director accompanied with the processing fees mentioned in subrule 7(1).

A complaint shall be made in the form as prescribed in the First Schedule.

Where the Majlis Peguam Syarie is the complainant, the complaint shall be signed by the Chairman of the Majlis Peguam Syarie.

The complaint made by a complainant shall contain sufficient particulars of the Peguam Syarie concerned and the facts of the complaint.

Processing fees

A complainant shall pay to the Director the processing fee in the sum of two hundred ringgit or any other sum as the Disciplinary Board may determine.

Subrule

shall not apply where the complainant is the Majlis Peguam Syarie, a State Majlis Peguam Syarie or any person or bodies mentioned in subsection 78(2) of the Act.

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All sums paid under this rule shall be paid into the Discipline Fund and shall not be refundable.

Limitation period

Upon receipt of a complaint, the Director shall—

Where the complainant has not complied with the requirements of rule 6, the Director shall as soon as possible send a written request to the complainant to submit the particulars required.

Notwithstanding subrule (2), if the non-compliance in relation to the omission of the name or address of the complainant or both, the Director shall reject the complaint and record such fact in the Rejected Complaints Register.

The complainant shall submit the particulars required within twenty-one days from the date of receipt of the written request under subrule (2).

Where the complainant fails to comply with the requirement of subrule (4), the Director shall reject the complaint and record it in the Rejected Complaints Register.

If the Director rejects any complaint under this rule, the Director shall inform the complainant in writing of the rejection of the complaint.

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The Director shall send the complaint registered in the Complaints Register and in the Register of Rejected Complaints to the Disciplinary Board.

Withdrawal of complaint

A complainant may, at any time before a final decision is made by the

Disciplinary Board, withdraw the complaint by notice in writing to the Disciplinary Board and a copy of such notice shall be sent to the Director.

Upon receipt of the notice of withdrawal under subrule (1), the Director shall—

Where the complainant has withdrawn his complaint under subrule (1), the withdrawal shall constitute a bar to any further complaint by the same complainant on the same facts.

Majlis Peguam Syarie may proceed with complaint withdrawn

Notwithstanding rule 10 and without prejudice to its right to make a complaint on its own, the Majlis Peguam Syarie may, at any time before the final decision is made by the Disciplinary Board, if the Majlis Peguam Syarie is of the opinion that there is merit in the complaint withdrawn under rule 10, proceed with the complaint as if the complaint was made by the Majlis Peguam Syarie.

Where the Majlis Peguam Syarie decides to proceed with the complaint under subrule (1)—

date of receipt of a complaint;

full name and the identity card or passport number of the complainant;

address of the complainant;

name and address of the person permitted by the Disciplinary Board to represent the complainant, if any;

full name of the Peguam Syarie concerned;

withdrawal of the complaint, where applicable;

continuance of the complaint withdrawn by the Majlis Peguam Syarie, where applicable;

date and decision of the Disciplinary Board;

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date on which the Disciplinary Board’s decision is delivered to the complainant or the person permitted by the Disciplinary Board to represent the complainant; and

date on which the Disciplinary Board’s decision is delivered to the Peguam Syarie concerned.

Rejected Complaints Register

date of receipt of a complaint;

date of the written request under subrule 9(2), if any;

date of the written explanation given by the Peguam Syarie concerned, if any;

the reason for the rejection of the complaint; and

date on which the rejection of the complaint is notified to the complainant.

Determination of merits of complaint

Where a complaint is referred to the

Disciplinary

Board, the Disciplinary Board shall, if it is satisfied that—

Where the Peguam Syarie has furnished his written explanation requested under subparagraph (1)(b)(ii) or, if the Peguam Syarie does not furnish his written explanation, after the expiry of the period stipulated or within such longer period as may be allowed by the Disciplinary Board under subparagraph (1)(b)(ii), the Disciplinary

Board shall proceed to consider the complaint.

The Disciplinary Board may, by virtue of the power provided in section 81

of the Act, require the production of any further documents or explanation from the complainant, the Peguam Syarie concerned or such other person as the Disciplinary

Board may require before making any decision on a complaint.

Power of Disciplinary Board to deal with complaints summarily

Where, after considering a complaint under subrule 14(2), it appears to the

Disciplinary Board that—

Notwithstanding subrule (1), the Disciplinary Board may also make an order of restitution as provided for in subsection 82(2) of the Act.

The Disciplinary Board shall, before imposing any penalty or punishment under subrule (1) or making any order of restitution under subrule (2), notify the Peguam Syarie concerned of its intention to do so and give the Peguam Syarie concerned a reasonable opportunity to be heard.

Investigation of complaints

The Director shall compile the following documents which constitute the record of a complaint:

A copy of the record of complaint shall be served to the complainant and the Peguam Syarie concerned before the Disciplinary Board commences its inquiry.

Date, time and place of hearing

The Disciplinary Board shall conduct its proceedings on such date, time and place as determined by the Chairman of the Disciplinary Board.

Any proceeding conducted pursuant to subrule (1) may be conducted through a live video telecast, live television telecast or any other means of electronic communication.

For the purposes of this rule, a reference to a “place” includes virtual cyberspace, virtual place or virtual space.

Notice of hearing

The Disciplinary Board shall serve a notice of the hearing to the complainant and the Peguam Syarie concerned at least seven days before the hearing is to be conducted.

A notice under subrule (1) shall specify the date, time and place of the hearing and shall be in the form or manner as determined by the Disciplinary Board.

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Right to legal representation

At the commencement of the hearing, the Chairman shall record the names of the parties present.

Unless permitted by the

Chairman, only the complainant, the Peguam Syarie concerned and their legal representatives, if any, shall be present during the proceedings.

Where the complainant is a body corporate or an organization, the complainant may appear through an authorized representative.

If the complainant or his legal representative is present, the Chairman shall direct the complainant or his legal representative to present his case.

All evidence shall be given separately and under oath.

At any hearing before the Disciplinary Board—

The Chairman or members of the Disciplinary Board may ask any question, or request the attendance of any person as a witness or for the production of any thing or documents as the Disciplinary Board may think is relevant to the inquiry.

If the complaint is based on a misconduct relating to monies in the custody or control of the Peguam Syarie concerned, the burden shall be on the Peguam Syarie concerned to provide a satisfactory explanation in relation to the complaint.

The Chairman of the Disciplinary Board shall call upon the Peguam Syarie concerned to respond to the complaint at the close of the complainant’s case.

The Chairman of the Disciplinary Board may call upon the parties to make their final submissions at the close of the proceedings, with the Peguam Syarie concerned making the first submission.

The Disciplinary Board shall record all evidence given to it.

Adjournment of hearing

The Disciplinary Board may adjourn the hearing from time to time as the Disciplinary Board thinks appropriate.

The Disciplinary Board shall serve a notice of the adjournment of the hearing to the parties to the proceedings within seven days from the date the adjournment is granted.

Subrule (2) shall not apply where the adjournment is granted in the presence of the parties to the proceedings.

Absence of parties before Disciplinary Board

adjourn the hearing in accordance with rule 23; or

proceed to hear the complaint and make any decision as it thinks fit in the absence of such person and without giving any further notice to such person.

Record of proceedings before Disciplinary Board

The report of the Disciplinary Board shall state the findings and reasons for the findings.

Where—

The report of the Disciplinary Board together with the record of the proceedings shall be sent to the Director.

The report of the Disciplinary Board under this rule shall be conclusive of the proceedings of the Disciplinary Board.

Where the

Majlis

Peguam

Syarie makes an application to the Disciplinary Board under section 83 of the Act for an order to suspend a

Peguam

Syarie from practicing, the

Disciplinary

Board shall request the Peguam Syarie to submit a written explanation thereon before the Disciplinary Board makes a decision on the application.

The Disciplinary Board shall notify in writing the decision on the application for suspension to the Majlis Peguam Syarie and the Peguam Syarie against whom the application for suspension is made.

An appeal against the decision of the Disciplinary Board shall be made to the Syariah High Court.

An appeal shall be made by filing a notice of appeal as prescribed in the

Second Schedule within thirty days from the date on which the decision of the

Disciplinary Board was pronounced.

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The party who appeals is known as “appellant” and the party against whom the appeal is made is known as “respondent”.

An appellant may appeal against the whole or any part of a decision and the notice of appeal shall state whether the appeal is against the whole or part only, and if so, shall specify the part of the decision appealed against.

A copy of the notice of appeal shall be served by the appellant within the time limited for filing the appeal on all parties involved in the appeal or their respective Peguam Syarie, the Disciplinary Board and the Majlis Peguam Syarie.

Notice of counter appeal

file in the Syariah High Court hearing the appeal; and

serve on the appellant, a notice as prescribed in the Third Schedule of his intention to submit at the hearing of the appeal that the decision appealed against should be varied.

Notes of evidence and judgment

The Director shall, upon receipt of the notice of appeal and subject to the compliance of subrule (3), supply to the appellant a certified copy of the notes of evidence and grounds of judgment.

For the purposes of subrule (1), the Director shall notify the appellant in the form as prescribed in the Fourth Schedule as soon as the certified copies of the notes of evidence and grounds of judgment are ready.

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Within fourteen days from the date of receipt of the notification under subrule (2), the appellant shall—

The deposit referred to in paragraph (3)(a) is non-refundable.

Within thirty days from the date of receipt of the deposit made under paragraph (3)(a), the Director shall supply to the appellant the certified copies of the notes of evidence and grounds of judgment.

Subrule (3) is not applicable if the appellant is the Majlis Peguam Syarie, any syariah court, Syariah Court Judge or Syariah Prosecutor.

No document shall be supplied if the appellant does not comply with subrule (3).

Grounds of appeal

Within fourteen days from the date of receipt of the notification under subrule 31(2), the appellant shall lodge with the Director grounds of appeal in five copies addressed to the Syariah High Court hearing the appeal.

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Every ground of appeal shall state briefly the substance of the decision appealed against and shall contain definite particulars of the point of law or fact in respect of which the appeal is made.

Except with the leave of the Syariah High Court hearing the appeal, the appellant shall not be permitted on the hearing of the appeal to rely on any ground other than those set out in the grounds of appeal.

Appeal record where appellant is represented

The appellant who is represented by a Peguam Syarie shall, having complied with the requirements of rules 31 and 32, prepare the requisite number of copies of the appeal record which shall contain copies of—

The appellant shall, within six weeks of the receipt of the notification under subrule 31(2)—

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Where the appellant who has complied with the requirements of rules 31 and 32 is not represented by a Peguam Syarie, the Director shall prepare the requisite number of copies of the appeal record which shall contain copies of the documents mentioned in subrule 32(1).

As soon as the appeal record is ready, the Director shall serve on the appellant a notice as prescribed in the Fifth Schedule.

Upon request by the appellant and, if the deposit mentioned in paragraph 31(3)(a) is insufficient, upon payment by the appellant of a further sum sufficient to pay the costs of preparing the appeal record, the Director shall—

The appellant shall, within six weeks from the receipt of the notification under subrule (2), serve a copy of the appeal record on each party who has been served with the notice of appeal.

Withdrawal of appeal

An appellant may, with the leave of the Syariah High Court, withdraw his appeal at any time before judgment by filing in the Syariah High Court a notice of withdrawal of the appeal as prescribed in the Sixth Schedule.

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The appellant shall serve a copy of the notice of withdrawal of appeal on each party who has been served with the notice of appeal.

Where the appellant withdraws his appeal under subrule (1), the respondent shall be entitled to the costs of the proceedings.

Notice of hearing of appeal

the date of receipt of the notice of appeal;

the date of the decision of the Syariah High Court; and

where the appeal is withdrawn, the date of withdrawal.

Service of documents and notices

Subject to rule 19, where any document or notice is required to be served under these Rules, the service of the document or notice shall be effected by personal service to the last known address of the person to whom such document or notice is required to be served.

Where for any sufficient reason the document or notice cannot be served by personal service, the document or notice shall be served by registered post to the last known address of the person to whom such document or notice is required to be served.

Service effected in accordance with subrule (2) shall be as effectual as personal service.

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Service of the document or notice under this rule shall be proved by an affidavit of service affirmed by the person who effected the service.

The person against whom the document or notice is served by personal service under subrule (1) shall sign an acknowledgement of service.

Notwithstanding subrule (5), the refusal or inability to sign the acknowledgement of service referred to in subrule (5) shall not affect the validity of the service.

Stay of execution pending appeal

any defect afterwards discovered in the appointment or qualification of a member;

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any minor irregularity in the convening or conduct of a meeting; or