Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
3/14/2018 0 Comments
Mediation in Islam (Sulh) is an ancient idea but it is still relevant to our current needs.
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Mediation, also known as Sulh or Wasaatah in classical Islamic text, is not a foreign concept in the Islamic legal system as sources of Islamic law have consistently encouraged the endeavour for amicable settlement. In promoting peaceful conflict resolution, Muslim scholars have introduced approaches that are both systematic and fact sensitive.
Mediation was formally legislated to form part of the Islamic civil law by the Ottoman Caliphate when it was included in The Majelle. This provided the operating legal definition of Sulh, which is “an agreement to settle a dispute with consent of the disputants, which will be concluded as a contract with offer (‘Ijab) and acceptance (Qabul).”
Sulh is also incorporated in the Malaysian Syariah legal system by virtue of Federal Acts and State Enactments. The Malaysian Syariah Courts are equipped to perform Sulh proceedings via judges, lawyers and Sulh Officers who are guided by the Sulh Officers Code of Ethics and the Sulh Manual, which are both formulated by the Syariah Judiciary Department.
This paper intends to discuss mediation in Islamic legal theory and its procedure in the Malaysian Syariah courts. The observation will continue to analyse the types of Sulh proceedings that are available and the corresponding disputes they were designed to address. The study will conclude with a fair commentary on the present structure and its potential for improvement.
II. MEDIATION IN ISLAMIC LEGAL THEORY
Achieving amicable settlement has been extensively promoted in various Islamic legal texts. Mediation and its concepts are provided throughout the Al-Quran, Hadith, Athar and Ijma’. Thus, the concept of mediation can be argued to have a substantial place in good Islamic conduct. Generally, the texts command the virtuous practices of assistance, conciliation and peaceful settlement of conflict.
In Quran, Chapter Al-Maidah, verse 2:
“Help each other in righteousness and piety, and do not help each other in sin and aggression.”
In Quran, Chapter Al-Hujurat, verse 9:
“If two groups of the believers fight each other, seek reconciliation between them. And if one of them commits aggression against the other, fight the one that commits aggression until it comes back to Allah’s command. So if it comes back, seek reconciliation between them with fairness, and maintain justice. Surely Allah loves those who maintain justice.”
The verses above illustrate how the Quran lauds all types of peaceful conflict settlements, as long as they do not contravene fundamental Islamic principles. Such a practice was adopted by the Prophet, who conciliated his Companions and accepted mediation between Muslims and non-Muslims.
In Quran, Chapter An-Nisa’, verse 35:
“If you fear a split between them (the spouses), send one arbitrator from his people and one from her people. If they desire to set things right, Allah shall bring about harmony between them. Surely, Allah is All-Knowing, All-Aware.”
In Quran, Chapter An-Nisa’ 4:128,
“If a woman fears ill treatment or aversion from her husband, then, there is no sin on them in entering into a compromise between them. Compromise is better. Avarice is made to be present in human souls. If you do good and fear Allah, then, Allah is All-Aware of what you do.”
As demonstrated in the above verses, mediation is explicitly recommended by the Quran as an effective mechanism in resolving marital disputes. Participation by disputants is encouraged not only by the potential of achieving an expedient resolution, but also by the fact that Sulh is a form ibadah or worship. Sulh will empower the parties, especially the wife, to decide for herself the type of settlement that best suits her, and not to simply succumb to the blatant will of the husband. Most importantly, Sulh also guarantees that the dispute shall be resolved under strict confidentiality so that the ‘aib or faults of the parties are concealed from the public.
Mediation is also substantially prevalent in the advice, practices and tacit approvals by the Prophet. In becoming the best example for all mankind, the Prophet had conducted mediation proceedings on several occasions throughout his various capacities as a Messenger of God, a community leader and a personal friend. This established an ethical and legal system that engineers social behaviour within the context of dispute resolution in harmony with the Quran and Hadith.
Abu Darda’ RA narrated that the Prophet (pbuh) said:
“Shall I not tell you something that is better than the status of (voluntary) fasting, prayer and charity?” They said: “Yes.” He said: “Reconciling in a case of discord, for the evil of discord is the shaver.”
Abu Hurayrah RA narrated that the Prophet (pbuh) said:
“The gates of Paradise are opened on Monday and Thursday, and everyone who does not associate anything with Allaah is forgiven, except a man who has had an argument with his brother. It is said: ‘Wait for these two until they reconcile, wait for these two until they reconcile, wait for these two until they reconcile.”
It was narrated that the Prophet (pbuh) had said:
“Conciliation between Muslims is permissible, except for a conciliation that makes lawful unlawful and unlawful lawful.”
It has also been reported that the Prophet was willing to intercede for Mutaam Ibn Adii in dealing with the prisoners captured during the battle of Badr, despite the fact that Mutaam was a polytheist. This is in recognition of the intercession conducted by Mutaam to lift the embargo against the Muslims to enter Makkah from Taaif. Mutaam also played an important role in mediating the removal of economic ostracism imposed on the Muslims.
During several military campaigns between the Muslims and the polytheists of Makkah, mediation was practised as an alternative resolution. The Prophet would often offer conciliation to the polytheists when the Muslims won. For example, when the first military detachment commanded by Sariyah Sayf al-Bahr under the direction of Hamzah Ibn Abd Al-mutalib intercepted the caravan lead by Abu Jahal, the conflict was mediated by Majdi Ibn Amr, who was a mutual ally of both belligerents. This demonstrated how conciliation acts as the main mechanism for dispute resolution on numerous occasions. Nevertheless, the polytheists never opted for mediation when they defeated the Muslims in the wars.
After the battle of Khaibar, the tribe of Fadk commenced conciliation with the Muslims by employing Masoud as the mediator. Another instance was when the polytheists of Makkah appointed Badil ibn Waqaa as the mediator during the Hudaybiyyah Treaty. In both examples, non-Muslim mediators were chosen in conflicts that impacted on the Muslim community at the time.
Despite the possible involvement of non-Muslims mediators, scholars held that a Muslim mediator is the best option for conflicts exclusively taking place between Muslim disputants. This is especially when the matter is purely religious and saliently deals with the precepts of Islamic law. The rationale of this fatwa is that such a dispute requires considerable level of expertise in Islamic law.
III. MEDIATION IN MALAYSIAN SYARIAH COURTS
Mediation is implemented in Malaysian Syariah Courts in the form of Sulh proceedings. The term “Sulh” is derived from the word salaha, which means “to do good”, whereas the technical definition of “Sulh” is “an agreement between two disputants which would lead to peace”. Sulh is also defined by the Selangor Islamic Judiciary Department as “a meeting between two disputing parties involving one or more claims in the Syariah Court which is chaired by a Sulh Officer.” Hence, Sulh aims to cease on-going hostilities between the parties and restore their relationship in a peaceful manner.
In the event that disputants can reach a settlement, a Sulh agreement shall be signed by both parties in accordance with the terms agreed during the Sulh session (Majlis Sulh). If the mediation is able to be concluded with a voluntary agreement by the disputants, the said mutual agreement will be recorded before a Syariah Judge as a Court order or consent judgment without the commencement of trial. Therefore, Sulh has been recognized as “a painless tool of dispensing justice in many cases, especially in the application of divorce cases.”
Fundamentally, the process of Sulh can be conducted in all types of Syariah cases except Hudud cases. However, the application of Sulh in Malaysia is essentially different in terms of the procedure before and after the Sulh session. Every case for Sulh shall first be registered and evaluated by the Syariah Court Registrar to determine its suitability for Sulh. In addition, Sulh in Malaysia is limited to matrimonial disputes that include divorce, polygamy, maintenance, jointly acquired property, custody of children and mut’ah.
The Sulh process has four fundamental and salient features to be upheld by the Sulh Officer (Mediator):
1. Neutrality or impartiality of the mediator;
2. Voluntariness of the process;
3. Confidentiality of the relationship between the mediator and the parties; and
4. Procedural flexibility available to the mediator.
Scholars have argued that the paramount element of mediation is present in the Sulh proceedings implemented by the Syariah Courts. However, Sulh also employs the features of other modes of alternative dispute resolution. Sulh proceedings in divorce cases have the elements of arbitration or Hakam, which gives the Sulh Officer the authority to affirm a divorce, regardless of it being mutually accepted or not. This power is provided by several Islamic Family Law enactments throughout Malaysia.
The first batch of eleven (11) Sulh Officers in Selangor was appointed in 2002, but all lacked formal training to conduct mediation properly. Sulh trainings and workshops were then conducted by the Accord Group in order to enhance and develop the Officers’ skills in facilitating mediation that deals with Syariah disputes. Throughout the years, Sulh Officers become more and more competent with every workshop held.
The formal introduction of Sulh in the Malaysian Syariah legal system was spearheaded by the Federal Territory Syariah Court, Kuala Lumpur, followed by Selangor and Melaka in 2002. The Sulh Manual was drafted and published as a comprehensive reference material to be utilised by Sulh Officers.
The legal basis of Sulh as a mechanism for alternative dispute resolution can be found in some state enactments. A few examples include the Syariah Court Civil Procedure Enactment Selangor 2003, the Syariah Court Civil Procedure (Sulh) Federal Territory Act 585 Rules 2004, and the Syariah Court Civil Procedure (Sulh) Melaka Rules 2004.
A clear example would be Section 99 of the Federal Territory Rules, which stipulates:
“The parties to any proceedings may at any stage of the proceedings, hold Sulh to settle their dispute in accordance with such rules as may be prescribed or in the absence of such rules, in accordance with Hukum Syara."
Rule 3 of the Civil Procedure Rules provides that the Registrar of the Syariah Court shall have the duty to evaluate the case at hand and apply discretion in deliberating for the suitability of Sulh. This would also include the date for the Sulh session and the issuance of a notice for Sulh. If a case is found to be suitable for Sulh, the court shall issue a notice within 21 days of its registration to ensure expediency.
In the event that parties fail to attend the Majlis Sulh despite being served the Notice of Sulh, the absent party shall be held in contempt of court, holding him or her liable for imprisonment of not more than six (6) months and/or a fine of not more than RM2,000.00. This imposes a duty on the disputants to respect the Majlis Sulh as if it was the Syariah Court.
Due to its practicality, Sulh is highly effective in improving the process at Syariah Courts. This mechanism succeeded in improving the administration of Syariah Courts by reducing case-backlog. Since its introduction in 2001, Sulh has a success rate of 70% in resolving disputes amicably.
The main player in Sulh proceedings is the Sulh Officer. Despite its importance, the role of the Sulh Officer is sometime delegated to the registrar or any other officer of the Court. This serves as a temporary solution to a logistical problem whereby cases outnumber Sulh Officers. From another perspective, this demonstrates the inexplicable need for more trained Sulh Officers.
As of 2008, there are a total of 29 Sulh Officer in the entirety of Malaysia’s Syariah Courts. Out of this small group, only five (5) Sulh Officers are female. In view that Sulh is predominantly applied in marital disputes, the need for more trained female Sulh Officers in all states is of the highest paramount.
In order to maintain the quality of Sulh proceedings, the Islamic Judiciary Department of Malaysia organised occasional mediation courses for the overall improvement its officers. These training courses were held in collaboration between The Accord Group of Sydney, Australia and the Syariah Lawyers Association of Malaysia. The exchange of expertise between the Malaysian Syariah Mediators and their Australian colleagues proved to have enhanced the Sulh Officers to become more professional and facilitative.
The Sulh Officer shall first start the Majlis Sulh with a brief explanation of the Sulh process. Next, the Sulh Officer will encourage disputants to inquire about Hukum Syarak and Islamic Family law in order to help them understand the reality of their case. Then, the Sulh Officer will assist the disputants to set out an agenda with any issues of concern. Following that, he or she will proceed to aid the disputants in evaluating the dispute and lead the negotiation between them.
The disputants will represent themselves in the Majlis Sulh. Sulh procedure dictates that the Syariah counsel for the parties may not attend the Majlis Sulh without the prior approval of the Sulh Officer. This restriction is to ensure that disputants are not under the influence of their counsel. With that said, the Sulh Officer will guide the disputants to arrive at a resolution by acknowledging their right to be heard, perusing any relevant documents and, if needed, rescheduling the Majlis Sulh in order to allow the parties to have time in considering any offers at hand.
IV. SULH IS EXCLUSIVE FOR THE DISSOLUTION OF MARRIAGES
In Malaysia, Sulh is administered exclusively for the dissolution of marriages through counselling, reconciliation and arbitration. By virtue of the Islamic Family Law Act, parties in the midst of dissolving their marriage are required by law to first attempt mediation and salvage their relationship. In the event that the marriage is irretrievable, the matter shall be heard in front of a Syariah Judge.
If a divorce proceeding is not mutually agreed upon, the dispute shall first be mediated by a mutual and neutral third party. The Majlis Sulh at this point is usually chaired by an officer from the religious department of the respective state. However, more often than not, these officers and the representatives of the parties are not formally trained in Sulh. This has unfortunately caused the gratuitous delay of the process, resulting in the failure to arrive at a settlement.
The breakdown in Sulh proceedings would forfeit the matter to the next phase, which is Hakam. Hakam is the Syariah counterpart for arbitration in Syariah court. At this stage, the salient principles of Sulh will still be upheld and applied with the exception of relying on mutual agreement for a settlement. In order to ensure quality in all Hakam proceeding, the Department of Islamic Judiciary of Malaysia has introduced the Hakam Rules, a referential guide for the Syariah Courts and Hakams (arbitrator).
V. TYPES OF SULH PROCEEDINGS
Historically, Sulh may take place in three (3) occasions:
1. A case that initially began as a litigious claim but is resolved with Sulh;
2. A Sulh already agreed out-of-court and brought to court for endorsement; and
3. A Sulh that broke down with one party filing a claim at court.
However, Sulh was rarely resorted to during the Ottoman Caliphate. This was due to the over-reaching influence of Western imperialism that promoted a heightened reliance on the litigation system of the court as a means to resolve disputes.
In Malaysia, Sulh is conducted via a few methods that are dependent on the specific facts and nature of the dispute. Each mode of Sulh proceeding is different and is conducted in a manner that can either be formal or informal. The types of Sulh proceedings available in Syariah marital disputes include:
1. Sulh administered by parties through their Syariah Counsels;
2. Sulh administered by the Sulh Officers at the Syariah Court;
3. Sulh administered by the officers at the Legal Aid Department; and
4. Sulh administered by Family Support Authority.
Although the Malaysian practice of Sulh is limited to marital disputes, it is not restricted to the courts’ formality. In other words, agents besides the court may also initiate reconcilation between the disputants and take part in the charity for amicable settlement.
A. SULH CONDUCTED BY SYARIE LAWYERS
Syariah lawyers have already carried out Sulh between disputing couples, despite not having proper training as mediators prior. This is made possible by the voluntary consent of the disputants after receiving legal advice from their respective Syariah counsels. Without formal training and clear binding guideline for out-of-court Sulh, the lawyers mediate in a spontaneous manner catered to the parties.
At its conclusion, the parties will execute a mediation agreement to be submitted to the Syariah court. The Judge will first verify whether the parties’ agreement was voluntary and understood. Once satisfied, the agreement will be recorded as a court order with no modification. However, if the parties agreed in contradiction with Islamic law, such agreement will not be recorded or be amended accordingly.
Nonetheless, the situation is substantially different in practice. It has been argued that, instead of facilitating the mediation, Syariah lawyers are responsible for inducing their clients to retract from the Sulh Agreement before it could be endorsed by the court. In the event of a retraction, the agreement will not be endorsed by the court and the dispute will remain unresolved.
B. SULH BY THE SULH OFFICERS
Sulh Officers, as agents of the Syariah Courts, are appointed for the sole purpose of conducting Sulh proceedings. They are usually fresh officers who have yet obtained the required skills and experience to become a Syariah judge. Nevertheless, the conduct of a Sulh Officer is still bound by the Sulh Officers Code of Ethics and the Sulh Manual.
The duties of Sulh Officers in Syariah Courts are not limited to merely conducting and chairing Sulh sessions. Some Sulh Officers have also been granted “Tauliah Hakim”, which authorise them to act and decide on behalf of a Syariah judge in the event that the learned judge is unavailable. This guarantees the prevention of any unnecessary delay in the disposal of cases.
In assuring that their duties are properly perfected in a competent manner, there are certain eligibility requirements that must first be satisfied by a potential candidate before his or her appointment. The minimum qualifications to be a Sulh Officer are:
C. SULH IN THE LEGAL AID DEPARTMENT
The Legal Aid Department, which has always promoted the settlement of Syariah disputes by way of Sulh, was established to provide low-income earners the access to competent legal representation. Applicants who earn below RM30,000.00 per annum are eligible for legal aid services with a contribution of RM 300.00 to the department.
The common Syariah claims that reach the Legal Aid Department are:
1. Muta’ah (a consolatory gift granted by the husband for his ex-wife after their divorce)
2. Harta Sepencarian (jointly acquired property)
3. Nafkah ‘Iddah (maintenance during the ‘iddah period)
4. Nafkah Anak (maintenance for the children)
5. Hadhanah (custody of the child)
With the exception of divorce cases, fasakh and notices of judgment, the Legal Aid Department deals with civil proceedings related to any dispute of maintenance, custody, divorce, and harta sepencarian in courts administering Muslim law, whereby any person or advocate and solicitor may be authorized to appear.
D. SULH CONDUCTED BY FAMILY SUPPORT DIVISION
Marital disputes are especially frequent in the Syariah legal system. In Malaysia, dedicated officers who investigate and resolve these emotional conflicts are members of an elite unit known as the Family Support Division (FSD). Formed by the Syariah Judicial Department, its purpose is to assist single mothers in recovering their maintenance from the former husband by establishing his undivided compliance with the maintenance orders.
The FSD will first provide legal advice on the non-compliance committed by the former husband. They will then proceed by channelling an amount of money as temporary living assistance to the mother and children. Investigations will later commence in order to decide the applicant’s eligibility for any financial assistance.
Once the eligibility is determined, the FSD shall advance an amount of payment as ordered by the Syariah court for a duration of 6 months. The same amount will then be claimed from the former husband under an order for recovery. After that, the FSD will administer Sulh in order to induce the former husband to pay the maintenance, and file a case for recovery in enforcing the court order. Once the amount is paid, the money will be forwarded to the FSD.
VI. COMMENTARIES ON THE PRESENT STRUCTURE
As long as there are Muslim marriages, there will be a need for a mechanism that resolves any possible marital dispute in a civil and amicable manner. Despite its essential role in resolving disputes, alternative measures may still be taken in order to develop and further improve the effectiveness of Sulh proceedings in Malaysia.
The first recommendation is to legislate the position of a Sulh Officer. Although this is the accepted term, the position does not exist in law or in the official hierarchy of the Syariah courts. Since a Sulh Officer is a Syariah Officer who deals mainly in Sulh proceedings, the legislation of such a position would strengthen the authority of the officer. 
Furthermore, the Syariah court should appoint more Sulh officers who specialises in Islamic mediation. The most ideal condition is to have at least 3 Sulh Officers at every Syariah lower court. This would overcome the inadequacy of mediators formally trained in Sulh, which affects the zealousness of the court to conduct Sulh.
In addition, the Syariah court should also appoint more female Sulh Officers. Since the nature of Sulh proceedings is exclusively marital, a female Sulh Officer would be in a better position to understand, empathise and properly mediate the dispute. This is in consistent with the current rise in the involvement of women in Syariah courts.
We have established that Islam advocates the practice of amicable mediation in the form Sulh. With its foundational concepts vested in the sources of Islamic law and its legal codification by the Ottomans, the role of Sulh has been cemented in the Islamic legal system centuries before the inception of the common law system. In Malaysia, it is proven that Sulh has been outstandingly effective in settling disputes expediently in the Syariah Courts.
Taking the next step in its development, the Department of Syariah Judiciary of Selangor has introduced Sulh in civil cases other than marital disputes. Disputants in other types of civil disputes may now consider an alternative to litigation. This will allow the disputants to have access to a wider range of solutions in resolving the dispute between them. Due to its constructive nature, statistics have shown that Sulh in the Selangor Syariah Court has a success rate of 64% as compared to litigation at 34%.
It is undeniable that divorce cases are increasing at a worrying rate in Malaysia. Sulh is capable solving this problem, and if not, at least ensures that it is carried out in an amicable manner. However, in order for Sulh to be effective, the legislature must collaborate with the judiciary in providing proper training to all agents involved. This will sustain the pivotal role of Sulh in easing the resolution of a wide range of marital problems. Therefore, it is imperative that Sulh should be properly executed and practised by the Syariah Courts of Malaysia.
This article was written by Mr Wan Muhammad Asyraf Bin Wan Mohd Fadzli, a postgraduate student at the Faculty of Law, University of Malaya. (Edited by Jean Lee Jia Ying)