number 47 n 48, full name of act + tahun

explain about suluh or islah, explain gist of

ADR PROCESSES IN ISLAM the section.
DR. NORJIHAN AB AZIZ
how long - depends on the mark

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2,3,4 question. try to understand the
question
TAHKIM
•Tahkim is a verbal noun of the Arabic word hakkama.
•Al-Zamakhshari, in asas al-balaghah hakkam, hakkama means: making someone as an
arbitrator (hakam/muhakkam), for example, a person is arbitrating to Allah.
•Also means he is submitting to the law of Allah i.e., to the Qur’an
•It is also the same if someone is asking a judge to decide in his case.
•Tahkim: is an appointment, by the disputing parties, of someone (arbitrator) to judge between
them.
•Al-Mawardi: tahkim is the appointing, by two disputing parties, of a man amongst the
community to judge on a matter that both parties are in dispute.
•Wahbah AlZuhayli: tahkim as an agreement by the parties to appoint a qualified person to
settle their dispute by reference to Islamic Law.

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 •Abd al-Karim Zidan: tahkim is a process whereby the disputing parties agree to appoint
someone to act as an arbitrator (hakam) for the settlement of the issue in dispute between
them.
•An arbitrator has the power to give judgement.
•There should be clear pronouncement that a person has been appointed as an arbitrator
• E.g, “we have appointed you as hakam (arbitrator) to judge over the dispute between us.”
sulh:
1. tahkim (arbitration) - to end the dispute, determine/decide award
2. sulh (concilation) - require compromise, ada reconciltation, end dispute. conciliator advise the pary - not binding
3. ibra' - release his right to the opponent, to compromise:
4. hisbah (ombudsman) -
5. Expert
c

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 legality: try to memorize quranic verse.

definition
SULH V TAHKIM
SULH TAHKIM
a settlement may be reached between the parties with or Involved an appointment of a third party to settle the
without the involvement of others. dispute between them.

The agreement of sulh is not binding unless it has taken
place before the court.
There must be a dispute between the parties, and both
parties mutually agreed to settle their dispute between
them.
Decision is binding without court intervention.
can be resorted to although the dispute has not occurred
yet.

any agreement between the disputing parties to put an end Needs assistance of a third party to decide for the dispute
to their dispute,

General, it can be any process, wasata, hisbah, ibra’ and tahkim is one of the means of sulh
wakalah (representation)

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 IBRA’
•ibra’ is to free or release or avoid someone from something.
•Wahbah al-Zuhayli: “when someone releases or abandons his right against another person or
on his behalf.”
•For example, a creditor releases a debtor from an action to recover the debt or someone
releases another from his claim to a property.
•The Mejelle: “Ibra-i-isqat is for someone to make free another person by dropping all the
rights which he has against him, or by subtracting or diminishing a certain quantity of them.”
•E.g. if someone has released another from a right, that right is destroyed, and he can no longer
bring an action against the other party. It is important that the persons released must be known
and determined.

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 MUSTAHSIB/ OMBUDSMAN
•Surah al-Imran: 104 Forbidden what is wrong
•The Prophet s.a.w, umar al-Khatab and Sa’ad al-A’as as muhtasib
•The jurisdiction of the muhtasib covers areas generally considered outside the scope of the
court:
• To keep an eye on public morals
• To eliminate fraudulent practices of the traders
•To ensure the good health of the civil society

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•A muhtasib does not wait to be invited to settle a dispute.
•He or she must be proactive to identify potential areas of dispute within an administrative
set-up and processes in an organization.
•The muhtasib is empowered to question or summon people with questionable characters or
who are involved in suspicious circumstances to streamline the administrative process of an
organization towards its vision and mission
•Muhatsib investigate a complaint, has authority either to warn the offender, giving
opportunity to tawbah, or take legal action for the wrongful act.

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 EXPERT DETERMINATION/MUFTI
•Parties to a dispute seek the expertise of an expert in making a neutral evaluation of the
dispute.
• The assessment made by the expert is not binding but advisory in nature.
•Fatawa given by the Muftis closely resembles with expert determination.
•Fatawa is non-binding evaluative opinions by a mufti regarding a specific issue affecting
the whole society.
•The fatwa can be used as persuasive authority in the court of law while, in some cases it is
adopted by the judge as binding authority. kalau nak compare,
identify - definition, process,

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 -tribunal
- to end dispute
- merit based on facts, evidence, rulings WALI AL-MAZALIM
•It is an informal justice by a Chancellor
•Public officer appointed by the State to use the coercive authority of the ruler and
adjudicative function of a judge.
•All types of disputes were fit to be considered by him, including those which ordinarily were
referred to a qadi.
•This jurisdiction was exercised either on his own or on receiving a complaint.
•The dispute settlement was done in an informal manner, without conforming strictly to the
rules of evidence.

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 TYPES OF SULH
Between Muslim v non-Muslim
Between government v rebellion
Between husband v wife
Other than property dispute
Property dispute

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 ELEMENTS & CONDITION OF SULH
1. Sighah - agreement
2. Parties – Capacity (al-Ahliyyah) and qualifications
3. Thing/right that is disputed by the parties- individual rights
4. The replacement/the price of sulh -AlMusalah bihi

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 Sighah/ Agreement
•Statement of agreement from the disputing parties to stop the dispute
•This statement is interpreted through aqad and implemented through sighah i.e., ijab and qabul
•Jumhur agreed that ijab and qabul is one of the rukun of sulh
•Redha is the main element in every contract/aqad
• Redha is subjective that cannot be seen except through manifest expression of the parties
•Thus, it must be proved through sighah. Fuqaha has decided that sighah must be conducted.
• Ijab must immediately be followed by qabul.

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 Subject Matter
•No sulh in matters that involve the right of Allah e.g. hudud offences
• Sulh is allowed in matters that relate to the right of people.
•Qisas, takzir, property, family,
•In sariqah and hirabah, both crimes involve taking away the property of another person
infringe the right of individual as the property belongs to the victim.
•Sulh can be made between the offender and the victim as long as the crime is not brought to
the court.
•“Forgive each other among you for hudud offences (if committed). When an offence of hudud
reaches (informed to or tried by) me it becomes enforceable”

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 Parties
•The contracting parties are the party that makes a claim and the party that is
demanded to arrange sulh and both of them must have the authority to enter into the
contract of sulh.
•Sound mind, majority.
•Insane person, a minor cannot enter into a valid agreement of sulh.

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 Al-musalah Bih/ Sulh Replacement
•It must be valid according to hukum syarak.
• Replacement in the form of property or manfa’at must be in the possession of the party that
arranges for sulh.
•The placement must be something that is known by both parties. This is to avoid uncertainty and
doubtful.

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 THE APPLICATION OF ADR IN THE SYARIAH COURT OF MALAYSIA

ISLAMIC FAMILY LAW ACT: divorce application

sulh (conciliation) S47
Tahkim (arbitration) S48 for divorce

SYARIAH CIVIL PROCEDURE ACT & SULH RULES- sulh (mediation) other than divorce
Subject matter in the Practice Direction

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Section 47 IFLA
(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.
(6) the Court shall, where possible, give preference to close relatives of the parties having knowledge
of the circumstances of the case.
(7) The Court may give directions to the conciliatory committee as to the conduct of the conciliation and
it shall conduct it in accordance with such directions.
(8) If the committee is unable to agree or if the Court is not satisfied with its conduct of the conciliation,
the Court may remove the committee and appoint another committee in its place.
(9) The committee shall endeavour to effect reconciliation within a period of six months from the date of
it being constituted or such further period as may be allowed by the Court.

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(10) The committee shall require the attendance of the parties and shall give each of them an
opportunity of being heard and may hear such other persons and make such inquiries as it
thinks fit and may, if it considers it necessary, adjourn its proceedings from time to time.
(11) If the conciliatory committee is unable to effect reconciliation and is unable to persuade
the parties to resume their conjugal relationship, it shall issue a certificate to that effect and
may append to the certificate such recommendations as it thinks fit regarding maintenance
and custody of the minor children of the marriage, if any, regarding division of property, and
regarding other matters related to the marriage.
(13) Where the committee reports to the Court that reconciliation has been effected and the
parties have resumed their conjugal relationship, the Court shall dismiss the application for
divorce.
(14) Where the committee submits to the Court a certificate that it is unable to effect
reconciliation and to persuade the parties to resume the conjugal relationship, the Court shall
advise the husband to pronounce one talaq before the Court, and where the Court is unable
to procure the presence of the husband before the Court to pronounce one talaq, or where
the husband refuses to pronounce one talaq, the Court shall refer the case to the Hakam for
action according to section 48.
Seksyen 48: Tahkim
(1) If there are constant quarrels (shiqaq) between the parties to a marriage, the Court may appoint in
accordance with Hukum Syara' two arbitrators or Hakam to act for the husband and wife respectively.
(2) In appointing the Hakam under subsection (1), the Court shall, where possible, give preference to close
relatives of the parties having knowledge of the circumstances of the case.
(3) The Court may give directions to the Hakam as to the conduct of the arbitration and they shall conduct
it in accordance with such directions and Hukum Syara'.
(4) If the Hakam are unable to agree, or if the Court is not satisfied with their conduct of the arbitration,
the Court may remove them and appoint other Hakam in their place.
(5) The Hakam may, pronounce one talaq before the Court if so permitted by the Court, and in that event
the Court shall record that pronouncement of one talaq, and send a certified copy of the record to the
appropriate Registrar and to the Chief Registrar for registration.
(6) If the Hakam are of the opinion that the parties should be divorced but are unable for any reason to
order a divorce, the Court shall appoint other Hakam and shall confer on them authority to order a
divorce and shall, if they do so, record the order and send a certified copy of the record to the
appropriate Registrar and to the Chief Registrar for registration.

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 Syariah Court Civil Procedure (Sulh) (Federal Territories) Rules 2004

Rule 5:(1) Sulh shall be conducted in a majlis in the presence of the parties to the action.

(2) Majlis Sulh shall be chaired by a Registrar or any public officer appointed for such purpose
by the Chief Syariah Judge.

(3) In a Majlis Sulh, every party shall appear in person and no Peguam Syarie may appear or
act as such for any party and no party shall be represented by any person without the leave of
the Chairman.

(4) The Chairman shall, where possible, assist the parties to resolve the dispute concerning
the subject matter of the sulh and shall give each party an opportunity to be heard.

(5) In a Majlis Sulh, the Chairman may take evidence from the parties, accept any document
submitted and may, if he thinks necessary, adjourn the Majlis Sulh from time to time.

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Rule 6:Where the parties have reached an agreement to settle the action, wholly or partly, the
Chairman shall prepare a draft agreement and submit it to the parties for their confirmation
and signature and, thereafter, the Chairman shall transmit such draft agreement to the Court to
be recorded as a judgment by confession or consent

Rule 7:If the action is unable to be resolved in a Majlis Sulh, the Chairman shall report the
matter in writing to the Court

Rule 8: The Court shall fix a date for hearing to continue the proceedings for the purpose of
disposing the case.

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 ARBITRATION IN ISLAMIC BANKING/FINANCE DISPUTE
S56 of the Central Bank Act 2009: any proceedings relating to Islamic banking and
finance can be made through the courts and arbitration rules
The arbitration proceeding must be in reference to the Syariah Advisory Council of
Bank Negara
S57: Any ruling made by the Syariah Advisory Council is binding on the court and
arbitrator
Bank Islam Malaysian Bhd v Adnan bin Omar (1994) the parties may choose to settle
their disputes in Islamic finance matters through arbitration provided that there is an
arbitration clause in the agreement
Parties may appoint an arbitrator, the award is final
The SAC’s role in disputes over Islamic transactions is to ensure consistency and
certainty in the application of Islamic principles. SAC has no jurisdiction to examine
facts, apply the hukum on the facts, to decide

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•Manual for References to Shariah Advisory Council by the Civil Court and Arbitrator
•known as Manual Rujukan Mahkamah dan Penimbang Tara kepada Majlis Penasihat
Syariah Bank Negara Malaysia di bawah Seksyen 51 dan Seksyen 56 Akta Bank
Negara Malaysia 2009
•Provides a guideline for arbitration proceeding to the Syariah Advisory Council
relating to Islamic banking and finance disputes
•SAC must deliver the decision within 90 days after referral was made.

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 REFERENCE TO SAC FOR ARBITRATORS UNDER THE MANUAL
Dispute to arbitration
The arbitrator must Secretariat presents SAC decides &
refer to SAC published the outcome to SAC secretariat record
rulings

Arbitrator refers to Secretariat conduct SAC communicate the

SAC’s secretariat preliminary research SAC’s decision to
arbitrator

Secretariat arrange a
meeting with SAC SAC discuss the
within 7 days after arbitrator’s reference end
receiving the
reference

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 REFERENCE TO SAC UNDER THE I-ARBITRATION RULES 2018
Rule 11 of the i-Arbitration Rules provides a reference procedure on questions of Shariah, :
•The i-Arbitration Rules are not limited to issues of Shariah arising from an Islamic financial
business.
•It is not mandatory for a reference to be made on issues of Shariah under the i-Arbitration
Rules.
•Under the i-Arbitration Rules, a reference may be made either to a “Shariah advisory council
of accepted Islamic scholars or experts that are qualified to issue religious rulings” (“Shariah
Council“), or a “qualified expert in the field of Shariah“. Specifically, the reference is to be
made to the Shariah Council under whose purview the Shariah aspect to be decided falls,
where there is one. Where there is none, the parties can agree on the identity of the Shariah
Council or Shariah expert. If the parties fail to agree, the expert would be appointed by the
arbitral tribunal.

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•If a reference to the relevant Shariah Council or Shariah expert has been made, the arbitral
tribunal must then adjourn the arbitration proceedings until a ruling has been given.
•The Shariah Council or Shariah expert must deliver its ruling within 60 days from the date the
reference is made
•If no ruling is delivered within this time period, the arbitrator may proceed to determine the
dispute and give its award based on the submissions it has before it.

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