SULH AND TAHKIM

1. SULH AND TAHKIM FEM4123

2. SULH • Literal: termination of a dispute. • Terminology: an agreement entered into by the disputing parties for the purpose of settling once and for all the dispute between them. • Process of restorative justice and peacemaking. • Process of resolving dispute amicably.

3. TAHKIM • Literal: to make someone as an arbitrator (hakam) and to authorise him to make judgement. • Terminology: an appointment by the disputing parties of someone (hakam) to judge between them. • Hakam is like a judge who has the power to give judgement. • A form of sulh.

4. AUTHORITIES OF SULH • Can be found in several places in the Qur’an. Eg: Al Hujurat:9, A;Nisa’:35, 114, 128, Al Baqarah: 178, 182, 224, 228. • “If you fear a breach between them (husband and wife) appoint two arbiters, one from his family and the other from hers. If they wish for peace, Allah will cause their conciliation, for Allah hath full knowledge, and is acquainted with all things” – Al Nisa’:35

5. Continue • Hadith: “Sulh is permissible among Muslims except the one which makes the unlawful as lawful and which makes the lawful as unlawful. Muslims are bind by their promises except promises that permit the unlawful as lawful and the lawful as unlawful” – narrated by Kathir bin Abd Allah. • Sunnah: the setting of Hajar Aswad during the reconstruction of Ka’bah.

6. SULH IN FAMILY DISPUTE • Matters: relating to property rights, non-property rights or rights that arise either during the marriage or after divorce. • Hakam or mediator is under a duty to render justice in his judgement. • “Whoever judge between two disputing parties (by way of tahkim) and both of them agree with the arbitrator whereas he does not do justice between them, Allah will curse him.” – hadith Prophet Muhammad s.a.w.

7. DISTINCTION BETWEEN SULH AND TAHKIM • Voluntary and parties consented. • Mediator facilitate the discussion of the issues in dispute. • Disputants responsible for the agreement. • The agreement is not binding unless endorsed by the court. • Use to resolve past or present dispute. • Informal. • Voluntary and parties consented. • Hakam plays the role of a judge - excluding the formal procedure. • Hakam make the decision on the issues of dispute. • The decision is binding as if it is made by the court. • Can be used to resolve future dispute. • Quasi-judicial

8. PROVISIONS ON SULH • 1st state to draft the procedure: Federal Territories of Kuala Lumpur. Later followed by Selangor and Melaka. • Proactive state in implementing sulh: Selangor. • Relevant laws in Selangor: • The Family Law Enactment 2003 (IFLE): s. 47, 48. • The Syariah Court Civil Procedure Enactment 2003 (SCCPE) : s. 99, 94 and 131. • The Syariah Civil Procedure (Sulh) Rule 2001.

9. SECTION 47 IFLE– CONCILIATORY COMMITTEE • S 47(5): “Where the other party does not consent to the divorce or it appears to the court that there is reasonable possibility of a reconciliation between the parties, the court shall, as soon as possible, appoint a conciliatory committee consisting of a religious officer as Chairman and two other persons, one to act for the husband and the other for the wife and refer the case to the committee.” • In practice: Chairman is usually the head of family Counselling and Development Unit or the Head of registration of Marriage and Revocation Unit in the Department of Islamic Religion of Selangor.

10. EXEMPTION OF SECTION 47 • Desertion. • Residing outside Peninsular Malaysia – unlikely to be within the jurisdiction of the court within 6 months. • Imprisonment for a term of 3 yrs and more. • Incurable mental illness. • Exceptional circumstances which make reference to a conciliatory committee impracticable.

11. SECTION 48 IFLE - HAKAM • The court may appoint two hakam to act on behalf of the husband and wife respectively if it is satisfied that there is constant quarrels between them. • Preference: close relatives who know the circumstances of the case. • Hakam will be directed by the court. • If the hakam are unable to agree or if the court dissatisfied with their conduct: appoint another hakam.

12. SS 99, 94 AND 131SCCPE 2003 • S. 99: Any parties to a proceeding may convene sulh at any stage of the proceeding according to the established rules and procedure. • Absence of those rules and procedure: resort to hukumsyarak. • S. 94: recording of settlement reached in any proceeding including sulh. The record of settlement shall afford as a defense by way of res judicata. • S. 131: Judgement based on consent or agreement of parties including sulh may be recorded at any time.

13. THE SYARIAH CIVIL PROCEDURE (SULH) RULES 2001 • Enforced in 2002. • Not applicable in divorce cases. • Determination of date: on registration day. • Sulh will convene in 21 days. • Failure to attend MajlisSulh: penalised – imprisonment not more than 6 months or a fine not more that RM2000. • Confidential • Non-compliance of Consent Order amount to contempt of court

14. JABATAN KEHAKIMAN SYARIAH MALAYSIA • Play important role in upgrading the quality of services of the syariah courts. • Provide Working Manual and Code of Ethics to guide sulh officers in performing their duty effectively. • Provide ongoing training to enhance mediation skill. • All sulh officers must attend training course conducted by The Accord Group, an international (based in Sidney, Australia) dispute resolution firm specializing in mediation. • Eg. of Skills imparted: conflict management, communication, how to represent client. • Qualified for Associate membership of the UK Chartered Institute of Arbitrators.

15. CASES THAT CAN BE RESOLVED BY SULH S. 67: Amendment of wife maintenance S.70: Outstanding maintenance S. 73: Maintenance of children S. 82: Custody of children S. 122: Hartasepencarian S. 133: Failure to abide maintenance order S. 154: Enforcement order • S. 13 : consent of wali. • S. 18(1) (c): Wali hakim • S. 23(1): Poligamy • S. 47: Application of divorce • S. 49: Khulu’ • S. 50: Ta’liq • S. 53: Fasakh • S.57: Confirmat’n of divorce • S. 58: Mut’ah • S. 60: Maintenance • S. 66: ‘Iddah maintenance

16. SULH PROCESS • Review case file. • Ensures sulh officer has jurisdiction and Notice has been served or not to parties in sulh. • Conduct Majlis Sulh. • Agreed: record agreement in sulh, draft Consent Agreement, review Consent Agreement, • Court endorsed Consent Agreement: Judgement Order • Disagreed: proceed for trial in court, Judgement Order. • Case closed.

17. EFFECTIVENESS OF SULH IN SELANGOR • 64% as compared to 34% cases referred for trial. Only 2 % adjourned. (JAKESS: May 2002 to December 2006). • Of 2555 cases registered from May 2002 to December 2003, 68% were succesfully settled by sulh, 26% by trial in court and only 6% adjourned (Raihanah, 2005). • 87% parties of sulh reported that they were highly satisfied with sulh, 13% reported that thay were moderately satisfied with sulh, none reported having low satisfaction with sulh (Sa’odah, 2010). • Majority or the parties of sulh were able to discuss issues resulted from their divorce and together they came up with agreed aolution (Sa’odah, 2010). • 97% parties of sulh would recommend sulh to any person having similar problems (Sa’odah, 2010).

18. CONSLUSION • Sulh is very effective in resolving dispute amicably. • Empowering process. • Gain-gain situation. • Preserve future relationship between parties in dispute. • Spill-over result: decrease of backlog cases in court.