Ṣulḥ (Mediation) in the State of Selangor: An Analysis of Legal Provision and Its Application (original) (raw)
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The Theory and Practice of Ṣulḥ (Mediation) in the Malaysian Shariah Courts
IIUM Law Journal
This paper attempts to discuss the position of Ṣulḥ as a mediation tool to resolve cases brought up in the Shariah Court. The first part of the paper is to explain the importance of Ṣulḥ in the institution of justice in Islamic law. Some relevant authorities from the sources of Islamic law will be highlighted including the practice of the companions. The second part of the paper will focus on the status of Ṣulḥ in the Shariah Court in Malaysia in terms of history, ethics of the Ṣulḥ officer and the procedure of how Ṣulḥ takes place in the Shariah Court. The last part of the paper will focus on the Ṣulḥ officers including female officers and compare their status with male Ṣulḥ officers, nature of cases (e.g divorce, taʿlīq, ḥaḍānah) handled by the Ṣulḥ officers and their success rate. The paper will conclude by a discussion of the possibility of the Ṣulḥ officers occupying the position of a judge in the Shariah Court. The last point to be discussed is the balance in terms of number o...
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...
FAMILY MEDIATION AND SULH: AN ALTERNATIVE DISPUTE RESOLUTION IN MALAYSIA
Mediation and other forms of alternative dispute resolution (ADR) developed rapidly in the era of globalization as an effect of high divorce rates, numerous conflicts between disjointing parents, the consequential administrative burden on courts and especially concerns about detrimental effects on children and post-divorce family relationships. An overwhelming change is also taking place in Asia concurrently with the law reforms in arbitration - the Courts are leading the way to encourage mediation in dispute settlement. This article focuses on the practices of family mediation and sulh in Malaysia and the significance of family mediation and sulh in resolving dispute amicably.
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 ...
USER SATISFACTION WITH SULH (MEDIATION) IN THE SELANGOR SYARIAH JUDICIAL DEPARTMENT
One of the resolutions of the Seminar on Alternative Dispute Resolution, held by the Legal Division of the Prime Minister Department in 2002 was to enhance the use of mediation as a mechanism of conflict resolution. It was suggested that a law pertaining to mediation be enacted. Responding to this resolution and in view of the importance of sulh as an alternative method in settling disputes amicably (particularly in family disputes), an effort has been taken by the Selangor Syariah Judicial Department to introduce Majlis Sulh in 2002. The present study aims to determine firstly, the relationships between demographic characteristics of users of sulh and satisfaction with sulh and secondly, the difference in satisfaction with sulh between male and female users. Males and females from the State of Selangor, who fulfilled the selection criteria, were selected as respondents for the study. The results reveal that majority (87 per cent) of the respondents reported that they were highly satisfied with sulh. Nonetheless, male respondents were found to exhibit higher level of satisfaction compared to female respondents. Satisfaction was not related to demographic characteristics. Findings implies that sulh is a very viable alternative dispute resolution mechanism in the Syariah Courts and it is timely for other states in Malaysia to follow the example of Selangor in mandating sulh (mediation) as the first step towards resolving family disputes amicably.
The Application of Sulh in Resolving Community Disputes
Sulh is a method of dispute resolution in Islam through a third party provided by the Quran. The Malays had from the time of Malacca Sultanate practised amicable settlement or mediation to resolve their disputes. Even though, it was not called Sulh directly, the principles are the same. However, the practice of this traditional dispute resolution method faded upon the introduction of Charter of Justice in Malaya. Consequently, the period of court proceedings or litigation has begun. After 50 years of independence, now the government is promoting amicable settlement or mediation as a method of dispute resolution. Perhaps, the effort is to revive the traditional method of dispute resolution in a new form, i.e., formal or institutionalise dispute resolution. This paper will refer to the practice of Sulh during the time of the Prophet (peace be upon him) and his companions and the amicable settlement practised by the Malays to promote application of Sulh in family disputes and as a program to be introduced in Islamic Schools and universities in Malaysia. Key Words: Education, Malacca Sultanate, Mediation, Peninsula Malaysia, Sulh, School.
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...
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.
Settlement of cases through a mediation process is an appropriate, effective and effective way of resolving disputes and can open wider access to the Parties to obtain satisfactory and fair resolution. With the issuance of the Republic of Indonesia Supreme Court Regulation No. 1 of 2016 concerning Mediation Procedures in the Court it is hoped that cases can be effectively resolved through the mediation process. But in reality the implementation of mediation is still less effective in resolving cases in the Court, this is evident from the few cases that were successfully resolved by mediation at the Syar'iyah Sigli Court. Of the 289 divorce cases registered in 2016, only 1 (one) case succeeded in mediation and in 2017, divorce cases registered reached 367 cases, only 2 (two) cases were able to be resolved through mediation. So that what becomes a legal issue is what factors that influence mediation cannot be carried out effectively in divorce cases in the Syar'iyah Sigli Court and what are the obstacles in the mediation process. The research was conducted using the sociological juridical research methods using the statute approach and case approach. The results showed that mediation could not be carried out properly as follows: First, the quality of judges appointed as mediators was not evenly distributed, there was only 1 (one) mediator judge who had mediator certificates who had participated in mediation training organized by the Supreme Court of the Republic of Indonesia. Second, mediation facilities and facilities at the Syar'iyah Sigli Court are still inadequate both in terms of mediation space and supporting facilities therein. Furthermore, the obstacles in mediating divorce cases in the Syar'iyah Sigli Court are the unpreparedness and proportionality of Human Resources (SMD) within the Syari'iyah Sigli Court to resolve the high number of divorce cases in the jurisdiction, and the unavailability of other human resources from the professions Psychosciences or other practitioners to facilitate settlement in the mediation process within the Syar'iyah Sigli Court.