The Theory and Practice of Ṣulḥ (Mediation) in the Malaysian Shariah Courts (original) (raw)
Related papers
THE APPLICATION OF MEDIATION (SULH) IN ISLAMIC CRIMINAL LAW
Dispute resolution through mediation or sulh is encouraged in Islam in almost all disputes. Sulh is not only applicable in civil cases such as matrimonial dispute, custody dispute, transaction dispute and inheritance dispute, but could also be applied in criminal cases as well. In the context of Islamic Criminal Law, sulh is applicable in certain criminal offences of hudud, qisas and ta'zir particularly when involving the right of individuals. Sulh concerning criminal disputes has been exercised during the period of Prophet Muhammad SAW and legalized in the Quran. There are numerous Qur'anic verses and Ahadith that allow sulh to be applied in criminal cases. Pakistan has recently implemented the Islamic criminal law, allowing criminal cases to be resolved through sulh. Therefore, this article aims to examine the concept of sulḥ in criminal cases according to the Quran and Ahadith. This research also analyses how sulh in criminal cases is implemented in Pakistan and to determine whether it complies with the Quran and Ahadith.
Ṣulḥ (Mediation) in the State of Selangor: An Analysis of Legal Provision and Its Application
IIUM Law Journal, 2012
The first part of the paper seeks to examine the relevant legal provisions of ṣulḥ in the State of Selangor Darul Ehsan. Thus, the provisions of ṣulḥ as provided for under the Islamic Family Law Enactment 2003 will be discussed and analysed. Other provisions under the Administration of Islamic Religious Enactment 2003, the Syariah Court Civil Procedure Enactment 2003 and the Civil procedure (ṣulḥ) Rules 2001 will also be examined to study the procedures and guidelines in conducting Majlis ṣulḥ. The qualification of ṣulḥ officer will be briefly discussed in the last part of the paper. The paper concludes by commending the initiative that has been taken by the Department of Syariah Judiciary of Selangor in introducing ṣulḥ which has been proven to be very effective in reducing excess cases in the State Syariah Courts.
Journal of Islam in Asia (E-ISSN 2289-8077), 2020
Mediation or sulh at the Malaysian Shariah Court deals with a variety of issues relating to Islamic family law including the child custody issues. Disputes that exist between the parties can be resolved through litigation (court) and non-litigation (outside the court). Sulh is one of the non-litigation methods in settling disputes in peace and harmony. The Government initiative by introducing sulh since 2001 helps in reducing the backlog of cases, speeds up settlement of dispute and it has become a very constructive method of resolving disputes amicably. This article aims to discuss and analyse the principles of sulh in Islamic Law, its foundations and its implementation in Malaysia particularly in child custody disputes. The article also will look at how sulh interacts with the new implementation of the Special Court of Hadanah established in the Shariah Court of Federal Territories (MSWP). The methodology adopted, is library-based research to collect information, data and theories...
El-Aqwal : Journal of Sharia and Comparative Law
Mediation as a dispute resolution process outside the courtroom has been used by the Religious Courts. Its juridical basis is based on Indonesian Supreme Court Regulations Number 2 of 2003 and Number 1 of 2008 concerning Mediation Procedures in Courts. Meanwhile, in the classical Islamic legal tradition, marital conflicts are resolved by a third party outside the courtroom which is referred to as ṣulḥ, namely efforts to reconcile through a process of taḥkīm or arbitration. Based on this, this study answers the question whether the Religious Courts in Indonesia fully use the concept of ṣulḥ as a process of resolving marital conflicts as depicted in the classical Islamic legal tradition. This study concludes that the Religious Courts in Indonesia do not fully use the concept of ṣulḥ as a process of resolving marital conflicts as depicted in the classical Islamic legal tradition. This is because the concept of ṣulḥ in Islamic law uses the taḥkīm (ḥakam) mechanism. The concept of ḥakam ...
Syariah Courts in Malaysia And the Development of Islamic Jurisprudence: The Study of Istihsan.
Malaysia is among the countries, which have very close relations with Shafi'i madhhab in term of Islamic Law. This can be seen from the provisions of Syariah Law in Malaysia where the opinion of the Shafi'i madhhab is preferred than other madhhabs. However, the current situations and issues cause that the other opinions from the other madhhabs are also used and practiced in order to provide the best solutions. This is also true in respect on the use of sources of Islamic law, such as Istihsan, Istislah and Qawl Sahabi, which are rejected by the Shafi'i madhhab. Therefore, this study attempts to analyze the development of Islamic law, particularly in the application of the concept of Istihsan in the Syariah Courts in Malaysia. This study has examined a number of cases reported in the Jurnal Hukum issued by the Syariah Judiciary Department of Malaysia (JKSM). The result of this study found that in several cases, the judges have applied indirectly the concept of Istihsan in their judgment. It is also found that it is actually the provisions of the law that allows the Shariah judges to indirectly apply this concept.
Mediation as an alternative mode of resolving family disputes in Malaysia / Su'aida Safei
2005
This dissertation attempts to explore the possibilities of introducing mediation to settle family disputes, as an alternative to litigation in the Malaysian High Court. Family matters are seen as sensitive that deserve to be treated in confidence and in a less formal manner. The special features of mediation are of paramount importance to disputes of family nature, namely; confidentiality, informality and flexibility of its processes. Delay in disposing civil cases including family cases should not be tolerated. Prolonged litigation may also lead to high expenses incurred by parties in family disputes. Most importantly, it is saddening to see matters concerning private lives of people being dealt openly in court that may cause embarrassment to the family members as a whole. Since Malaysia has a dual family system for the non-Muslims in the High Court and for Muslims in the Shariah Court, mediation or known as sulh as practised in the Selangor Shariah Courts will be studied. Mediatio...
Mediation in Marital Discord in Islamic Law: Legislative Foundation and Contemporary Application
Arab Law Quarterly, 2009
Mediation as a method of marriage conflict resolution has recently emerged as one of the most workable institutionalized techniques in Western jurisdictions. In Islamic law, although ipso facto, it was given legislative recognition centuries ago under the principle of tahkim; its potential as a viable reconciliation technique was somewhat obscured by juridical technicalities. Indisputably, mediation was the underlying ratio legis for the institution of hakam (arbitration). In practice, however, mediation was not the sole prerogative of the arbitration. It was instituted and carried out through numerous culturally specific methods, both formal and informal. In the Malaysian scene, mediation in family dispute is part of the ongoing daily job of Shari'ah lawyers, judges and officers in religious departments. However, critiques believe that neither the agents under traditional hakam nor Shari'ah practitioners of Shari'ah bodies have the necessary training and soft skills to ...
WAKAF: CONFLICT OF JURISDICTION BETWEEN CIVIL AND SYARIAH COURTS IN MALAYSIA
Current Law Journal , 2002
The jurisdiction of the syariah courts to hear matters involving wakaf is provided in List II to the 9th Schedule of the Federal Constitution ('FC') and the provisions in the respective states' enactment on the administration of Islamic affair enactments (hereinafter referred to as 'the said provisions'). Alas, this has otherwise been decided and negated by the civil court. Based on the case's decided, even though the jurisdiction to hear wakaf exclusively is under the jurisdiction of the syariah court, yet the civil court vehemently decided otherwise, viz, it is under their domain. This clearly negates the importance of article 121 (1A) of the FC. This paper intends to study the decided cases involving wakaf since the inclusion of sub clause 1A to article 121 of the FC, which has bestowed on the syariah courts, exclusive and unfettered jurisdiction and power to adjudicate and determine their own matters as provided the said provisions and to identify the real legal and jurisprudential issues, causes and stumbling blocks which had hitherto barred the syariah courts from having the freedom and ability to decide on wakaf and further to give suggestion and solution in the problem of conflict of jurisdiction of between these courts, civil and syariah, in matters pertaining to the same. It is hoped that through the illumination of this paper on wakaf and its conflict of jurisdiction between both courts in Malaysia, will give us some insights as to how issues on wakaf and its disputes were and are currently determined.
The Islamic Legal System in Malaysia
2011
This article describes the historical evolution and the current structure of the Islamic legal system in Malaysia. The structure of the modern Malaysian state has its roots in the region's colonial history. By the end of the nineteenth century the territory that comprises contemporary Malaysia had been subjected to British colonial authority. The British did not, however, rule the region as a single colonial unit. In the directly ruled colonies most matters were governed by English common law, and while Islamic doctrine governed family law, it was applied by colonial courts that were staffed by British or British-trained judges. In the colonies subject to indirect rule an English resident exercised authority over matters of British interest while Malay sultans retained their hereditary titles, and local courts exercised the sultan's authority in matters of Malay adat (custom) and Islam. When the state of Malaysia was created in 1957, the constitution established a federal structure that reflected the pluralistic colonial system. Malaysia is currently comprised of 13 states and three federal territories. Under the constitution, most areas of life are governed by a uniform body of federal law applied by a system of national courts. However, the constitution grants the states the power to apply a version of Islamic law on certain topics enumerated in the constitution, and to create Shari‛a courts to adjudicate disputes involving Muslims relating to matters of Islamic law. The subjects included within the states' legislative power include, in addition to personal law and matters related to religious practice, offenses deemed to be against the precepts of Islam. All of the states have exercised the powers granted by the constitution to legislate on matters related to Islam, and every state has established Shari‛a courts to adjudicate disputes based on Islamic legislation. A constitutional amendment approved in 1988 eliminated the power of civil courts to hear appeals from decisions of the Syariah courts. At the same time that they are achieving greater autonomy, the Shari‛a courts are also seeking to "upgrade" in ways that emulate the civil courts. † † I. † Farid Sufian Shuaib is an Associate Professor of Laws at the Faculty of Laws, International Islamic University Malaysia. He received his legal education in Malaysia and England. He currently holds the post of the Deputy Dean (Student Affairs) at the Faculty of Laws, International Islamic University Malaysia. The author has written articles on issues in the Malaysian legal system, constitutional law, and media law in local and international journals. He has published several books, including Powers and Jurisdiction of Syariah Courts in Malaysia, which is in its second edition, and co-authored Constitution of Malaysia: Text and Commentary, which is in its third edition. He would like to thank R. Michael Feener, Clark B. Lombardi, and Mark Cammack who, as conveners, invited the author to a workshop at the Asia Research Institute from which this article was conceptualized. In addition, he offers many thanks to them for their tireless efforts in seeing through the publication of this article. † † In accordance with the policies of the Pacific Rim Law & Policy Journal, foreign words that have entered common English usage will not be italicized. Foreign words that are not in common usage will be italicized. Arabic words will not use diacritical marks such as macrons. However, apostrophes and reverse apostrophes will be employed to signal the letters hamza and ‛ayn, respectively. The Malaysian equivalent of "Shari‛a," "Syariah," is generally used in this article.
The administration of Syariah Courts in Malaysia, 1957–2009
Journal of Islamic Law and Culture, 2011
This article analyses the development of the administration of Syariah Courts in Malaysia from the pre-colonial to the post-independence periods. The status of Islam as the official religion during the Malacca Sultanate and the application of Islamic law throughout the administration during that period are agreed upon by most historians. The structure of courts consisting of subordinate and superior levels with the Sultan as the head of the judiciary shows the existence of an organized structure which recognized natural justice as one of the rules of law. After Merdeka (independence), the restructuring and restoring of Syariah Courts in Malaysia took more than 40 years. Subsequently, the current Syariah Court acts and state enactments have been amended and improved to bring them into line with the policy of the government, current situations, and legal pluralism in Malaysia. The process of reform of the Syariah Court was slow, but Muslims in Malaysia handled the matter with tolerance, perseverance, and patience, and, most importantly, without jeopardizing the peace and harmony which is the hallmark of Malaysia as a nation.