UAD4612:

Topic: Islamic ADR and Syariah Court

• We will look into:
• (i) Principles
• (ii) Processes and practice of Islamic ADR: Nasihah, Tahkim, Sulh, Med-Arb,
Muhtasib, Wali al-Mazalim, Fatwa of a Mufta

Disclaimer: All the contents in these slides are meant for education purpose solely.
“The Malay in general is not a litigious person, when he happens to be a litigant, he
appears to be unhappy about it. It is said,

Victory- a defeated

Defeat- a bowed head

Agreement- a joining of hand.”

By: Joseph Minnatur (1968).

HISTORICAL BACKGROUND OF ADR IN ISLAM
Before the Period of Islam
• Before the advent of Islam, different civilizations of the world were
known to have had their own unique ways of resolving disputes.
There were different modes of dispute resolution in the pre-
Islamic era including settlement through battles.

• The prevalent method of dispute resolution during the pre-Islamic

era was self-help and this comprised of both peaceful
negotiations and personal vengeance. There are also reports that
tribal arbitration was prevalent during the pre-Islamic era in
Arabia. Tribal arbitration was considered as the sanctioned
method for of dispute settlement in Arabia. It was part of the role
of the tribal heads or clan heads to arbitrate disputes among
disputing parties within their domains.
HISTORICAL BACKGROUND OF ADR IN ISLAM
• Arbitration was conducted in the form of sulh (mediation or amicable settlement)
but had a binding effect on the parties. During this period, people referred disputes
to the priest (kahin) of the pagan cults within their clan. The priests claimed certain
supernatural powers and were chosen by disputing parties to mediate their
disputes through divination. Through divination, the priests could establish crimes,
adulteries or find missing camels. They were considered as spiritual mediators.
HISTORICAL BACKGROUND OF ADR IN ISLAM
• Prophet Muhammad SAW rejected the pagan elements that
dominated pre-Islamic arbitration and dispute settlement and a
new framework was instituted based on Islamic ideals.

• Islam gradually resolved the endless cycles of vengeance

prevalent in the pre-Islamic Arabia. Despite the fact that the
pre-Islamic arbitration was in existence, countless tribal feuds still
existed due to the primitiveness of the Pagan Arab culture. In
some cases, the tribal chiefs tried to reconcile their warring tribes
through the use of sulh. That is, sulh and tahkim were both in
force during the pre-Islamic era but there were not based on
clear-cut rules. The practice was done in a haphazard manner
and in accordance with the whims and caprices of the noble
tribes and the societal elite.
HISTORICAL BACKGROUND OF ADR IN ISLAM
• With the advent of Islam, the Prophet's references to arbitration
and mediation were meant to establish a civilised substitute to
the prevailing primitive dispute resolution methods.

• The Qur'an condemned the arbitral priests arrangement and

introduced the Islamic arbitration and mediation where the
Prophet was inspired to act as the first mediator, arbitrator and a
judge for disputes among his companions. The pagan
arbitrations were done away with the gradual Islamisation of the
ways and lives of the people of Arabia.
Advent of Islam and Landmark Reforms
• As an independent administrative body of the Islamic state, the judiciary or the
court resolves all types of legal disputes between the people and ensures social
harmony, peaceful co-existence by applying principles of natural justice, fairness,
equity and good conscience.
• While explaining the code of conduct for judicial officers, Umar bin Al-Khattab,
unequivocally restated the position of Islam regarding adjudication of disputes in
Islamic courts. This is contained in a letter he sent to one of assigned judges, Abu
Musa Al-Ashari, where he observed that part of the case management technique
of a judge is to encourage the parties to compromise between each other by
resolving the dispute amicably. This is similar to modern pre-trial procedure, and its
findings should be adhered to before proceeding for adjudication, if such need
still arises.
Advent of Islam and Landmark Reforms

• Ibn Qayyim further emphasized that judges and juris consults regard
the letter as authoritative in judicial process while attempting to
resolve a dispute. Therefore, the duty of a qadi is all-encompassing
and should be treated as such, when it comes to the issue of dispute
resolution. One of the most important etiquettes of adjudication as
widely pronounced in books on the Code of Conduct for Judges
(adab al-qadi) in Islamic law.
Advent of Islam and Landmark Reforms
• Even if the judge proceeds with the trail of the case, he should still consider the
possibilities of reconciliation before giving the final decision, to get parties settle
their disputes amicably based on certain terms of agreement. This is considered to
be part of the case management role of the judge which should be taken into
account as a matter of procedure.
• The reason for this procedural prescription is that is parties may shift grounds at
anytime and it still expedient to negotiate even in the case of imbalance of power
between the parties. The parties may resolve the dispute themselves and bury the
hatchet.
• In cases such as domestic violence, Sulh should first be employed to reach an
amicable settlement. The facilitative roles such as Sulh and tahkim are sometimes
delegated to some other court officials depending on the prevailing practice in a
particular locality.
• This was the nature of the Shari'ah courts right from the period of the Prophet
Muhammad and this golden trend was upheld during the Ottoman Empire.
The Period of Prophet Muhammad (SAW)
• The advent of Islam brought major reforms to the process of settling disputes
across Arabia and the world in general.
• Pre-Islamic Arabia was characterized by an absence of standard dispute
resolution mechanisms. The society was porous and this gave room for jungle
justice where people primarily took law into their own hands.
• With the advent of Islam, landmark reforms were introduced in all spheres of life,
including the aspect of dispute resolution. The Qur'an has repeatedly emphasised
that Allah is the ultimate judge and all issues must be referred to Him. The meaning
of this general prescription is that the Qur'an and Sunnah should form the basis of
every dispute resolution mechanism. This covers both the substantive, as well as,
the procedural aspects of the law.
The Period of Prophet Muhammad (SAW)
• The Qur'an establishes the position of the Prophet Muhammad as a judge (and
arbitrator) to whom all cases should be referred at this blossoming stage of the
development of the Muslim Ummah. Therefore, the Prophet combined the
functions of the Head of State, Imam, and the Judge of the then emerging Islamic
state.
• It is documented in fiqh books that the Prophet appointed a number of judges to
new cities, which fell under the expanding Islamic state.
• Ali bin Abi Talib and Muadh bin Jabal were appointed as judges to Yemen. Abu
Musa al-Ashari was also entrusted with judicial powers.
• So many legal principles, regulations and prescriptions are contained in the Quran and
Sunnah as explicated by the Prophet. When the Prophet intended to send 'Ali bin Abu Talib
to Yemen as a judge, the Prophet outlined the basic principles of fair adjudication:
• “Allah will guide your heart and keep your tongue [on the path of] truth. When two litigants
sit in front of you, do not decide until you hear what the other has to say as you heard what
the first had to say, for it is better that you should have a clear idea of the best decision."

• This is a clear enumeration of the principles of fair hearing in court adjudication and
arbitration. This principle later became known in the western world as audi alteram patem.
• During this period, such sophisticated procedures were unprecedented. These reforms had
far-reaching effects on the development of the judicial procedures in civilizations which
emerged hereafter. So too, the idea of ADR is well established in the Qur'an and Sunnah of
the Prophet Muhammad SAW.
• The details of the procedure of the administration of justice during the life-time of
the Prophet are not known to us.
• The hadith literature provides us with principles and instructions in this
connection. The letters of Umar and Ali provide us with the outlines and the
fuqaha give us its form based on inferences and (analogical) deductions drawn
and derived from the Qur'an and Sunnah.
• Judges, were not appointed during the time of the Prophet, but arbitrators and
mediators were appointed to amicably settle people's disputes.
• Those Companions, like Ali bin Abi Talib, Muadh bin Jabal and Abu Musa al-
Ashari, combined the roles of modern mediators, arbitrators, and judges in their
dispute resolution functions entrusted to them by the Prophet, since there was no
clear line of demarcation between these processes at that time.
The Period of the Rightly-Guided Caliphs
• The prominent Companions of the Prophet were directly involved in the
administration of the Islamic state during the Prophet's lifetime and this continued
after his demise.
• Since the general laws have been established, as contained in the Qur'an and
Sunnah, the rightly-guided caliphs only needed to consolidate the golden
regulations and precedents through facilitative policies as part of the
administration of the Islamic State.
• Major reforms were experienced during the time of Umar as the Caliph of the
Islamic State. Even though foundational principles for dispute resolution were laid
down by the Prophet through the Qur'an and divine inspiration, the
administration of justice system was consolidated by 'Umar with ground-breaking
reforms premised on the relevant provisions in the Qur'an and Sunnah.
The Period of the Rightly-Guided Caliphs
• He firmly upheld the Islamic prescriptions on justice and equity and enforced
them to the letter.
• It was during Caliph Umar's reign in which separation between the executive arm
of the government and the judiciary was enacted although he was sometimes
seen adjudicating very serious disputes especially criminal cases. He was a
judge, an arbitrator and a skilful mediator who handled a number of cases.
• The nature of the case determined the process he used in its resolution to the
betterment of the whole State.
• In order to ensure fair administration of justice, Umar determined the monthly
salaries of the judges and made their offices independent of the executive
administration.
• There were instances where he, as the Caliph had to appear before the judges (or
arbitrators) to defend himself. His pivotal role in the consolidation of the
fundamental policies of his predecessors makes him a leader that will be
remembered for years.
• In his appointment of judges (and arbitrators), he placed emphasis certain qualities
for fair administration of justice.
• Piety, trustworthiness, truthfulness, eminence, and sound knowledge of fiqh were the
main qualities he placed importance.
• The third rightly-guided Caliph, Uthman bin Affan followed tenaciously the path of
his predecessors in the furtherance of fairness and equity in administration of justice.
• Uthman himself has been a judge in Madinah as a leading Companion of the
Prophet and his two predecessors. However, during his reign as Caliph he upheld
the judicial policies of his predecessor and later had the course to appoint
judges to resolve disputes among the people in specific circumstances.
• It was narrated that he was sitting in the mosque when two disputing parties
approached him to mediate between them on a certain issue. Before consulting
the mediation and in order to ensure proper guidance from leading
Companions, he sent for Ali bin Abi Talib, Talhah bin Ubaidallah, Zubayr and
AbduL Rahman. When these companions arrived, he asked the two disputing
parties to state their cases before the panel of mediators.
• Furthermore, the fourth rightly-guided Caliph, All bin Abi Talib, who held the role
of a judge, mediator and arbitrator before he ascended the position of the
Caliph, also upheld the judicial policies of his predecessors.
• The three earlier Caliphs depended a great deal on 'Ali's advice and juristic
diligence.
• It has been reported that the second Caliph, Umar, used to say: "Ali is the best
judge among us".
• All the four rightly-guided caliphs followed the legacies of his predecessors who
never believed they were above the law.
• They submitted themselves to the jurisdiction of the court or arbitration tribunal
whenever they needed to defend themselves.
• This level of executive humility, devoid of any form of immunity, is
unprecedented in the history of mankind.
The Period between the Umayyad and Ottoman Empires
• Continuing the legacies of the four rightly-guided caliphs, the Umayyad
caliphs held their own courts as judges and arbitrators, and also appointed
learned jurists to resolve disputes among the conquering tribes.
• There was great transformation in the organization of the Shariah Court during
subsequent Umayyad and Abbasid eras. The title of qadi al quda (Chief
Judge) was first conferred on the Ilanafi jurist Abu Yusuf by the Abbasid Caliph,
Harun ar-Rashld. This office was introduced to appoint a leading jurist who is
saddled with the responsibility of advising the Caliph on the appointment of
new judges.
• It is believed that during this period, administrative dispute resolution was
further streamlined due to the growing violation of laid down rules by public
officials in the day-to-day running of the Islamic State.
• This led to the establishment of Diwan al-Mazalim which heard and determined
complaints against public functionaries with regard to allegations of
maladministration committed in their official capacities.
• A modern form of this systemic arrangement is the ombudsman institution. This
establishment, as well other para-judicial bodies, was established to fortify the
dispute resolution framework of the Shari'ah.
• The practices followed during Abbasid and post-Abbasid period were carried
on until the end of the Ottoman Empire, which marked the end of the history of
Islamic caliphate.
• The Ottoman courts operated a model of Court-annexed Sulh programme and
most cases were resolved at the mediation stage. There is modem evidence of
the ADR method employed during the Ottoman caliphate. These can be found
in numerous provisions of The Mejelle or Mahallahl al-Ahkam al-Adliyyah, the
codified Islamic law based on the Hanafi doctrine.
• However, some elements of decline set in during the twilight of the Ottoman
Empire with the adoption of the English-styled courts, which was occasioned by
the dominant effect of colonialism across the world.
• Just before the fall of the Ottoman Caliphate, certain colonial rules and
procedures gradually crept into the area of administration of justice system in
the Shari'ah courts across the Muslim world.
• This led to the over-formalization of court procedures and colonization of the
Shari'ah courts.
• In the modem world many Muslim countries, such as Malaysia, Egypt, Brunei,
Singapore, Saudi Arabia and United Arab Emirates, have introduced reforms to
allow for amicable resolution of disputes particularly those relating to the marital
affairs.
• Efforts are also being made by modem scholars to propose sulh and tahkim in
other areas of the Shari'ah such as commercial transactions including banking
and finance cases.
Application of ADR in Islam
• Islam introduced the rule of law to solve disputes and ensure the smooth running
of our worldly affairs.
• Verses of Quran, such as: 'O you who believe! Obey Allah, and obey the
Messenger and those of you who are in authority; and if you have a dispute
concerning the matter, refer it to Allah and His Messenger if you believe in Allah
and the Last Day; that is best and more suitable to the end.' (An-Nisaa: 59).
• Hadiths of Allah's messenger (peace be upon him) such as
• “ All of my Ummah will enter paradise except those who refuse”.
• The companions asked: 'But who would refuse!' He, (peace be upon him)
replied 'Whoever obeys me will enter paradise and whoever disobeys me has
refused to enter paradise'.
Application of ADR in Islam
• Islam, while establishing the rule of law, it has also encouraged and rewarded
peaceful dispute and conflict settlement and made it Shari'ah compliant as long
as it is within the principle of Islamic Law.
• The Qur'an, the Sunnah of Rasullulah (SAW), his Companions and their
successors, Muslim jurists and administrators promote peaceful conflict
settlement within the Muslim community; between Muslim and non-Muslim
communities; and within non-Muslim communities.
• In Islamic law, peaceful conflict settlement is a primary requirement to solve any
type of conflict.
• This peaceful settlement is to be achieved either by means of conciliation (Sulh)
or arbitration (Tahkim) or mediation (Wasaata).
• .
• Nasihah (Counselling)
• Counselling is a form of psychotherapy with spiritual undertone to psychologically
advice the parties to cool their nerves in order to agree to negotiate a settlement.
It serves to give necessary initial advice to parties who may not have thought it
right to negotiate settlement terms as a preliminary step to dispute resolution.
• Counselling also helps to forestall further escalation of the dispute since the parties
are passionately advised to bury the hatchet and think of sustainable means to
maintain the on-going relationship.
• Counselling is a process of building bridges without going into the subject matter
of the substantive dispute. For this reason counselling is considered to be a
preliminary step in dispute resolution.
• Nasihah (Counselling)
• The Islamic socio-legal history is replete with authoritative narrations on the
importance of nasihah.
• The importance of nasihah is found in the story of the Companions of the Prophet
who chose to use nasihah in order to resolve an impending upheaval among the
Muslims.
• One can recall many an instance when a few words from the Prophet, spoken in
the right manner at the right moment, helped resolve situations which might have
developed into major crises with the slightest tactlessness in handling them.
• The Islamic history recorded the deep sense of enmity which had existed for ages
between the tribes of Aus and Khazraj in Madinah. The irreconcilables were
welded into the unity of lasting love by the patient and tactful handling of a
leader who knew the value of peaceful negotiations.
• There was a time before the battle of Badr when both the tribes were so poised
against each other that the slightest provocation might have ended in their
mutual destruction.
• It was on one of these explosive days that the Prophet happened to pass their
way. Both Muslims and hypocrites were sitting together at a place but the former
got up as the Prophet approached and offered all courtesies due to his station;
while the latter, instead of salutations, came out with an impertinent remark.
• But the Prophet rose far above petty considerations of personal dignity and
controlled the situation with a tactful remark.
• The Prophet counselled the people vis-à-vis the tactful remark and quelled the
sparks that were about to be re-ignited between the two groups. His remark in this
seemingly irreconcilable circumstance averted the crumbling of the Muslim bloc.
• The companions of the Prophet like, Abu Bakr and Umar, used to give sincere
counselling to people in distress who were faced with personal and interpersonal
problems.
• This typifies the significant position occupied by sincere counselling in dispute
avoidance-cum-resolution in Islamic law. These historical precedents are binding
standards for modern Muslim communities.
Muhtasib (Ombudsman)
• The institution of hisbah has been in existence since the time of the Prophet.
• From a mere market supervisnce and reor, the office of the muhtasib has
crystallised into a modem institution of dispute avoidance and resolution.
• The emergence of the antiquated institution of ombudsman in the modem
world is a re-enactment of the administrative grievance-remedial scheme that
was introduced over 1,400 years ago in Arabia.
• The history of the institution of modem ombudsman is often traced to the
practice in Sweden introduced in 1809.
Muhtasib (Ombudsman)
• However, historical facts have it the institution of muhtasib dates back to 6th
century during the advent of Islam.
• The functions of the early muhtasib relates primarily to market supervision, the
role of the modem muhtasib has become formalised and proactive.
• The popular legal historical background for the institution of ombudsman has its
source in the Justitieombudsman created in Sweden in 1809. He was given the
important task of prosecuting culpable administrators and judges.
• Etymologically, "Ombudsman" is Swedish word which means a representative or
agent of the people or group of people. The modem Swedish ombudsman
ensures that public office holders respect the law and properly fulfil their
entrusted obligations.
• The office of the muhtasib is based on the concept of hisbah —the third branch
of the administration of justice system in the Islamic state.
• Muslim jurists regard hisbah as the intermediate point between the decisions of
a court of law and that of the Special Tribunal for Wrongs.
• In comparison with sulh, the muhtasib is more proactive in dispute resolution of
administrative grievances, which are constructively resolved at this initial stage.
• Most organizations have their grievance remedial system where aggrieved
parties may seek redress within such an organisation. The office that handles
such disputes is that of the muhtasib.
• According to Al-Mawardi, the functions of a muhtasib are:
• 1. To investigate manifest immoral actions in order to have them reprehended
and to look for any good conduct that has been abandoned in order to re-
establish same;
• 2. To hear appeals about reprehensible conducts by listening to complainants or
informants;
• 3. To question individuals found in questionable or suspicious situations in the
society;
• 4. To employ and use his deputies to help in the corrective and investigative
measures to effectively discharge the responsibility with which he is charged;
• 5. To levy penalties for a minor violations which are evident but penalties must not
reach the level of legal punishment; and
• 6. To exercise freedom of his independent judgment in conventional matters
which are customary to a particular profession.14
• A close look at these functions reveals the inextricable link between sulh and
muhtasib. The muhtasib applies sulh in the resolution of disputes and in taking
corrective measures in administrative matters.
• Furthermore, the muhtasib investigate reports of maladministration in an
organization with a view towards suggesting preventive measures to avoid future
disputes.
• The primarily difference between the office of the muhtasib and the sulh process
in the type of cases which they handle.
Wali al- Mazalim (Special Tribunals or Chancery)
• The Special tribunals or chancery in an Islamic state is a unique dispute
resolution body.
• In the administration of Islamic state,
• This special jurisdiction is known as wali-al-mazalim because it has the power to
compel people to mutual justice that will benefit all.
• The Prophet introduced the department of al-Mazalim which had a special
jurisdiction of compelling persons doing each other wrong, mutazalimun, to
mutual justice, restraining litigants from repudiating claims by inspiring fear and
awe in them.
Wali al- Mazalim (Special Tribunals or Chancery)
• The Prophet invoked the jurisdiction of mazalim during a dispute regarding
priority of right to irrigation. He decided the case accordingly and his decision
became the classical precedent on al- mazalim.
• According to Al-Mawardi, the following types of cases fall within the general
ambit of the jurisdiction of wali al-mazalim:
• 1. Complaint against oppression and maltreatment of the public by any
government official;
• 2. Complaint against unlawful and excessive remuneration due to public officers
for the taxes collected;
• 3. Complaints against irregularities in the public records and falsification of
records by registrars, clerks and accountants in the government departments;
• 4. Complaints about the inadequacy of pensions, delay in issuing them and
maltreatment of the beneficiaries;
• 5. Complaints against illegal usurpation of properties by government officials or
influential private individuals;
• 6. Complaints against misappropriation and mismanagement of endowments;
• 7. Implementation of sentences in circumstances where the judges are too weak
to enforce such due to the influential power or high social ranking of the
convicted person in the society;
• 8. Complaints regarding matters that necessarily fall within the jurisdiction of the
muhtasib like infringement on public morality and related issues, where the wall
al-mazalim is required to force the violators to mend their ways;
• 9. Ascertaining that congregational public acts of worship like the weekly Friday
prayers, biannual feasts prayers, pilgrimage, jihad are performed accordingly
without the violation of any relevant condition attached to such act; and
• 10. Settlement of disputes in accordance with what is right and established rule of
law.
Med- Arb
• Med-Arb is a two-tier process, which involves both mediation and arbitration.
Within the context of Islamic law, Med-Arb is the hybrid of both the sulh and
tahkim processes the goal of which is to arrive at an amicable resolution of the
dispute.
• This hybrid process is well known within the conventional practice of ADR. The
Med-Arb process has been recognized and prescribed by the Qur'an and has
been one of the major dispute resolution techniques in Islamic law for more than
1,400 years.
• The Med-Arb process is a mechanism for dispute resolution enmeshed within the
general framework of sulh (amicable settlement) in Islamic jurisprudence.
Med- Arb
• Sulh is a broad term, which literally means amicable settlement. Its juristic
meaning is all-embracing as it includes good faith negotiation,
mediation/conciliation, and compromise of action.
• In most cases during the Tahkim proceedings, both sulh and tahkim are
combined to facilitate the process of dispute resolution.
• This combined practice is encouraged in most cases because employing the
Med-Arb process is considered an obligation for the arbitrators in Islamic
jurisprudence.
• Sullh is different from Med-Arb as the former forms part of the latter. The
procedure for dispute resolution in sulh may be informal and the parties may
decide to resolve their disputes on their own without entrusting the process to a
neutral third party.
• But in Med-Arb, a neutral third party is involved from the onset. They act as a
mediator who then begins the mediation proceedings and endeavours to
reconcile the parties through the sulh process.
• Once the sulh process fails, the parties will proceed for arbitration as earlier
agreed and the neutral third party may or may not act as an arbitrator. This
depends of the agreement of the parties. Sometimes, there is the fear of
prejudice where the mediator is not allowed to proceed with arbitration in the
event of the unsuccessfulness of the mediation proceedings.
• Arbitrators in an arbitral proceeding may commence the process of dispute
resolution in an informal manner through the use of equity and amiable
composition. Such a preliminary step towards settlement may be referred to as
the mediation or sulh phase of the proceedings. Once, there is a deadlock in the
negotiation towards amicable settlement, the arbitrators may assume their
responsibility of conducting an arbitral proceeding by adding some formality in
the proceedings.
• Med-Arb is therefore a step towards the amalgamation of sulh and arbitration in
two-tier proceedings in order to reach a common goal of dispute settlement.
• (i)Sulh
• Conciliation (SuIh):
• The word SuIh in Arabic language is derived from the root Salahah or Salohah
which means to be good. The word al-sulh in Arabic. means to reconcile and to
make peace and to settle any dispute between opponents by relying on the
prescribed conditions.'
• SuIh is also one of the names of Mecca, the holiest city of Islam, described in the
Qur'an as a safe city, free of conflicts and a place of peaceful coexistence.
• As for the technical definition, Al-Jurjani in his Taarifat defines Sulh as: ‘an accord
to end a dispute. '
• The Ottoman Code Mejelle defines Sulh in Article 1531 as:
• 'A contract removing a dispute by consent. And it becomes a concluded
contract by offer and acceptance.'
• Sulh is also defined as, 'An accord between two parties or more to resolve a
specific dispute by ending its causes.'
• (ii)Tahkim
• Arbitration (Tahkim):
• The word Tahkim is mentioned in the Qur'an and the Sunnah of
messenger of the Prophet (peace be upon him).
• The word is derived from the root hakama which means to delegate to
someone the decision making, or the making of legal rules.
• As for the technical definition of arbitration, it is defined as 'the
appointment of a judge or judges by the disputed parties to adjudicate
a certain dispute or issue'.
• It is also defined as: 'a contract between two conflicting parties where
they freely choose an arbitrator to end their dispute.'
• (iii)Wasaatah
• Mediation (Wasaatah):
• Wassatah is the common term for mediation, and is used in Islamic law.
• Al-Jahshiary (331AH-943 AD) in his book Kitab Al-wuzaraa (The Book of
Ministers), has used tawasut in the case of the mediation of Muhammad
lbn Muslim to end the hardship of land tax (kharaaj) payers, and
• Also the mediation of Yahya between a man and the Abbassid Khalifah
Harun al-Rashid (198 AH- 814 AD).
• Nevertheless, the common word for mediation in Islamic law is (Al-
Mashyu Bayna Al-Mutanaziinah); 'walking between the disputants'.
• Al-Shafa'a, Aljaryu and Husnu Al-Sifara are also terms used for
mediation.
• Similarities and Differences
• In terms of similarities, there are forms of alternative dispute resolution, and are
conditional on the choice of the disputants and possible, settlement of the dispute.
• As for the differences, arbitration tahkim, for instance, differ from conciliation (Sulh) in
two aspects:
• (1) arbitration tahkim results in a binding, judicial decision, whereas conciliation or sulh
results in a non-binding proposal for settlement;
• (2) conciliation or sulh usually, one or both parties renounce some rights; whereas in
arbitration no one renounces any of his rights.
• Arbitration also differs from mediation; where the former ends in a binding judicial
decision, the latter facilitates negotiation.
• As for conciliation or Sulh and mediation or Wasaata they are considered by some
Muslim scholars to be similar in general terms.
• Conciliation in Islamic Law is a means of amicable dispute settlement,
• whereas mediation is one approach for the amicable settlement, and arbitration is
another one.
• As for the definition of mediation (wasaata), it is a benevolent and
non-binding procedure to end a dispute.
• It is characterised by one or more persons intervening in a dispute
either of their own initiative or at the request of one of the parties.
• The independent mediator must then seek to achieve an amicable
settlement by proposing solutions to the parties.
• In terms of similarities, these are forms of alternative dispute
resolution, and are conditional on the choice of the disputants, and
possible, settlement of the dispute.
Proof of Legality of Mediation
• A quick examination of the source of Islamic law provides two
categories of proof with regards to the legality of mediation.
• The first category consists of general Shariah evident commending
assistance and stressing on the human nature (need) of bringing
people together:
• Allah (SWT) says in Surah AI-Maidah : 2.
• Help ye one another in righteousness and piety. But help ye not one
another in sin and rancour. (Al-Maidah: 2)
• His Messenger (SAWS) said:
• The best of you in Allah's eyes are those who are more beneficial
to others and amongst the best deeds in Allah's eyes are: creating
happiness in the heart of a Muslim, or paying his debt, or satisfying
his hunger….
• The second category consists of Shariah evidences
recommending peaceful settlement of conflict in general and
mediation in particular.
• With regards to the evidence recommending peaceful settlement
of conflict, we can find numerous verses of the Qur'an and many
Hadiths.
• Allah says in Surat Al-Nisaa:
• In most of their secret talks there is no good; but if one exhorts to a
deed of charity or justice or conciliation between men, (secrecy is
permissible): to him who does this, seeking the pleasure of Allah, We
shall soon give a reward of the highest (value). (An-Nisaa: 114)
• An-Nisaa: 35
• If you fear a breach between a man and his wife, appoint an arbiter
from his people and another from hers. If they wish to be reconciled
God will bring them together again. God is all-knowing and wise.
• An-Nisaa:128
• If a wife fears cruelty or desertion on her husband's part, there is no blame on
them if they arrange an amicable settlement between themselves; and such
settlement is best; even though human inner-selves are swayed by greed. But if
ye do good and practise self-restraint, Allah is well-acquainted with all that ye do.

• Al-Hujurat: 9
• And if two parties among the Believers fall into a quarrel, make ye peace
between them: but if one of them transgresses beyond bounds against the other,
then fight ye (all) against the one that transgresses until it complies with the
Command of Allah; but if it complies, then make peace between them with
justice, and be fair: for Allah loves those who are fair (and just). (Al-Hujurat: 9).
• Beside these verses Hadiths of the Prophet (SAAS) are loud in supporting
peaceful settlement.
• The Prophet says:
• Should I inform you of something that is higher in virtue than fasting, praying and
charity?' They said, 'Yes Messenger of God: Then the Prophet said 'To make
reconciliation between peoples that are in conflict: Enmity and malice tear up
heavenly rewards by the roots.
• He says in another hadith:
• Conciliation between Muslims is permissible, except for a conciliation that
makes lawful unlawful and unlawful lawful.
• As for mediation as mean to conciliation, the direct evidence is
verse 85 of Surat Al-Nisaa.
• Allah Says:
• Whosoever intercedes for a good cause will have the reward
thereof, and whosoever intercedes for an evil cause will have a
share in its burden. And Allah is Ever All-Able to do (and also an
All-Witness to) everything. (An-Nisaa: 85)
• As for proof of legality of mediation wasaata in the Sunnah these are:
The Prophet (SAAS)'s statement about the prisoners of the battle of Badr:
• 'If Mutaam lbn Adii was alive and intercedes to free the prisoners, I'll do it for him'.
• The prophet willingness to make such favor to Mutaam lbn Adii, despite being a
polytheist Mushrik, because Mutaam had interceded for Rasulullah to enter
Mecca from Taaif, when he was denied the entrance by the tribes of Mecca.
• Furthermore, he was amongst the prominent mediators to end the economic
ostracism imposed on Muslims and the tribe of Bani Hashim by the tribes of Mecca
in the year 4 (BH).
 Procedure Mal in Syariah Court
Konsep sulh telah diterima
PERKARA ------ ADUAN ------ Pejabat Agama [Pengadu] dan dikanunkan, di
KAUSA v [Notis Kehadiran] Kaunseling [Pejabat Agama] dalam Akta Tatacara Mal
v [Saksi-Saksi]
Mahkamah Syariah
v
SAMAN ------Di Failkan----- [Plaintif] (WWP) 1998 Seksyen 99,
& TUNTUTAN ---Penyampaian--- Dalam Bidangkuasa [Mahkamah/Plaintif] dan beberapa Enakmen
v Luar Bidangkuasa [Mahkamah/Plaintif] di negeri lain, contohnya:
v ---Penyampaian Ganti--- Kanun Prosedur Mal
Syariah (Selangor) 1991
PEMBELAAN / TB > Jawapan ---Bertulis/Lisan--- [Defendan/Plaintif] Seksyen 87, dan seksyen
yang sama dalam
v
Ordinan Acara Mal
SEBUTAN ---KEHADIRAN--- Sah Penyampaian [Plaintif/Defendan]
v (S.120/121) (Saman & Tuntutan) [Afidavit Penyampaian] Syariah (Sarawak) 1991.
v ---Tarikh Bicara--- [Mahkamah]
v
PERBICARAAN --Keterangan-- Fakta Persoalan/Isu [Plaintif/Saksi/Eksibit]
v & Bukti Fakta Berkaitan/Qarinah [Defendan/Saksi/Eksibit]
v
PENGHAKIMAN/PERINTAH >>>>>>>> PENGUATKUASAAN
v v
v v
RAYUAN >>>>>>>>>>>>>>>>>>>PERLAKSANAAN
Proses Kerja Sulh- Kaedah-kaedah Tatacara Mal (Sulh) 2002 Mahkamah Syariah

Jawatan Proses Kerja

Proses Pendaftaran
Pendaftar/ •Terima fail kes dari pembantu Pendaftar
Penolong Pendaftar •Tetapkan tarikh sebutan/sulh kepada pihak-pihak

Pegawai Sulh •Majlis Sulh dijalankan di hadapan Pengerusi Sulh

•Jika tiada pesetujuan untuk melaksanakan sulh
tetapkan tarikh perbicaraan

Pembantu Pendaftar •Jika ada persetujuan kesemuanya atau

sebahagiannya, rekodkan dan kemukakan fail
kepada hakim untk dibicarakan.

Hakim •Buat Penghakiman dan Perintah Persetujuan.

Proses Kerja Sulh

Jawatan Proses Kerja

Proses Pengeluaran Perintah
Pendaftar/ •Sedia/semak draf perintah dari pihak-pihak
Penolong Pendaftar •Rujuk kepada hakim untuk pengesahan
•Kemukakan draf perintah kepada pihak-pihak
dengan atau tanpa pindaan (jika ada peguam)
•Terima perintah muktamad untuk dimeterai dan
tandatangan (jika ada peguam)
Hakim •Tandatangan dan meterai perintah.

Pendaftar/ •Penyampaian perintah kepada pihak-pihak.

Penolong Pendaftar
• Datuk Seri Dr Zulkifli Mohamad Al-Bakri: Menteri di Jabatan Perdana
Menteri (Hal Ehwal Agama);
• YAA Dato' Dr. Hj Mohd Na'im bin Hj Mokhtar: ketua Pengarah / Ketua
Hakim Syarie.