INTRODUCTION
As everyone knows, every dispute has its own solution. The only difference is the way or menthod to settle the dispute. One may adopt a long harsh and hard trial procedure just to insure his right is protected even though he has to wait for a long time. But a wise man wil pock a painless tool of dispensing justice to fight for his right. The latter will choose an amicable settlement without facing a long waiting trial and preserve good relationship with the other party. A Chinese proverb says "It is better to die of starvation than to become a thief; it is better to be vexed to death than to bring a lawsuit" i
Sulh in an alternative way of dispute resolution. It is a menthod of dispute resolution of very ancient origin before the coming of Islam where disputes were entrusted to their elders (kaahin) to dicide. It can be defined as reconciliation or mediation. This is a process where disputed parties come for a discussion and will strive to reach a mutually agreed and workable resolution through the assistance from a mediator or a sulh officer. The purpose of sulh is to end conflict and hostility among muslims so that they may conduct their relationship in peace and harmony. ii The key point in establishing sulh is mutual understanding between the disputants by taking into consideration the consequences of the outcome towards both families and individual interest.
DEFINITION
Sulh derivers from the Arabic word salaha which means to do good deeds. According to Ibn al-Hummam, Al Kasani, 'Ala' al Din Afandy and Ibn Nujaym, Sulh is difined as an agreement (aqad) to end dispute. In the Majallah Al Ahkam Al Adliyyah, the author added that it is an agreement to end dispute voluntarily. The School or Hanbali and Syafie agreed with the latter definition even though in different wordings. However, the School of Maliki defines sulh as an agreement to end dispute even though it is not yet happen. iii
The word salaha and its derivatives have appeared 179 times, in the Al Quran. However, the word salaha itself appears only once Surah An Nisa' verse 128 (4:128) "And sulh settlement is best, even though men's souls are swayed by greed". There are others quranic verses which Allah (swt) commands us to reconcile and make peace between two disputans. Among of them are,
" If two parties among the believers fall into a fight, make peace between them; but if one of them transgresses beyond bounds against the other and fight 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 ang just". (49:9)
" The Believers are but a single brotherhood: So make peace and reconciliation between your two (contending) brothers; fear Allah that you may receive mercy". (49:10)
In one hadith, Prophet Muhammad (saw) was reported to have said that,
"He who causes intentionally to death of another, it is left to the family of the deceased to decide on qisas ot the taking of diyyah….and if they agreed on sulh, it is for them".
Proptet Muhammad (saw) was also said to encourage compromise and mediation in both public and private matters. A well knon hadith on this matters states:
"You bring me lawsuits to decide, and perhaps one of you is more skilled in presenting his plea than the other and so I judge in is favor according to what I hear. He, to whom I give in judgment something that is his brother's right, let him not take it, for I but give him a piece of the Fire". iv
The trial process is not regarded as an ultimate-truth-finding menthod that will lead to uphold justice. It can be tainted and subverted by the imperfect nature of man. In order to find for the truth and at the same time no seeds of hatred and enmity grows between the parties, an alternative way of dispute resolution whether through mediation or arbitration must be uphold and practiced widely.
HISTORY
Sulh comes into picture since since before Islam. In Jahiliyyah period, which is known as tribal arab society era, the tribers adopted mediation as an alternative way in solving problems within tribes or between tribes. It could be done in various menthods such as hakam or tahkim, sulh or peacemaking agreement. However, the tribes preferred hakam than sulh.
During that day, every clan or tribe has its own head or leader. The disputants, normally, would elect their head or leaders to be a hakam in settling their arguments. They also appointed a respected, noble or influential man to solve their disagreements. However, most of disputants would choose a leaderwhich more respected, influential and the most important thing is the hakam must be a healer (kaahin) who has supernatural power. v It is no doubt that the man who would be appointed as a hakam must has certain qualities such as just, fair, non, partisan and respected.
According to Zuhayr ibn Abi Sulma, during those days, in order to persuade mediation, to extent to which some of those mediators would go is by producing necessary compensation or inducement out of their own pocket. However, there was a difference between that practice of a mediator and a hakam in Medina. The Hakam in Medina, would take a more coercive role and denial on an outcome based on arguments presented an customary law. vi
The Prophet Muhammad (saw), before his prophethood, had been elected as a mediator to place the Hajarul Aswad (the black stone which is situated at one of the corner of Ka'abah) back to its place. According to history, Mecca was put in chaos when it fell down from its normal place. The head of qabilah in Mecca were fighting each other to place it back. At last, they had agreed to choose Prophet Muhammad (saw), who was called Al Amin (the most trustworthy person) to be the problem-solver. Rasulullah (saw) had spread away his turban on the ground and put it on its turban. Then he called the head pf each qabilah in Mecca in which every one of them would hold every corner of the turban to carry the hajarul aswad back to its place.vi
After the coming of Islam, as Medina was being the central of Islamic government, the practice had changed. The disputants were no longer in authority would appoint their own mediator or hakam but rather the Islamic government would. The merging of political and adjudicative powers meant the shifting of the locus of the authority from the people and customsto the representive of the central Islamic government. For example, the Prophet Muhammad (saw) had been the mediator in a argument between Al Zubayr bin Al Awwam and an Anshar man regarding a small well situated on Al Zubayr's agricultural land. As a mediator, even it was situated on Al Zubayr's agricultural land, he suggested that the exclusive right and control will be bestowed to Al Zubayr while the latter might consume the water for nonagricultural purposes. The latter did not safisty with the suggestion. Then, Rasulullah (saw) sit as a judge and ordered that Al Zubayr would be given the exclusive right and control over the well while the Anshar man have no right to consume it for any purpose. viii
During the regin of Khulafa' Ar Rasyidin particularly in Saidina Umar Al Khattab's era, he had encouraged and promoted sulh as an alternative mean to settle disputes. As such, the Caliph sent over Abu Musa Al Ashaari abroad as a judge. He wrote a letter and laid down guidelines and advices on how to act as a judge. Among the guideline was "sulh is permissible among muslims expect sulh that makes haram that which is halal and makes that which is haram". In another report in the Al Musannaf of Al San'ani attributed to the Caliph which clearly shows an unequivocally critical of adjudication "Dispel the disputants until they settle amicably with one another, for truly adjudication leads to rancor" ix
Classical sulh laws have made their way into medieval laws from Ottoman Empire as well as the Modern codes of muslim countries such as Egypt. The earlist known is perhaps the provisions on sulh in penal matters in the Dulkadir Penal Code, named after the dnaysty which ruled in several regions from approximately 1335 until their annexation by the Ottomans in 1522. The Ottoman Mejelle 1885 has two (2) Chapters of sulh and Ibra' which incorporating the principles of the Hanapi School of Law.
Studies on the Ottoman qadi court records, they revealed that a considerable portion of court register' entries were records of disputes settled through sulh with the aid of a group of mediators called the muslihun who most probably were attached to the court system. x
Meanwhile in Egypt, representing the implementation of sulh in modern times, Section 64 of the Civil Procedure Law (Egypt) (Law No. 13 of 1968) provides for the formation of Majlis Sulh.
With the effect of that section, the President of Arab Republic make an order namely Order No. 1173 of 1968 to from a Majlis Sulh. xi
With the effect of that section, the President of Arab Republic make an order namely Order No. 1173 of 1968 to from a Majlis Sulh. xi
Sulh or mediation also applicable is non Islamic states such as Australia and Singapore. Singapore which is led by a Chinese ruler adopts mediation in both civil and syariah matters. The Syariah Courts in Singapore adopts this type of dispute resolution in both approach namely mediation (sulh) or tahkim.
In Malaysia, where Islam is the official faith, the practice of alternative dispute resolutions such as mediation or conciliation maintains since before the colonial period. In those days, family matters were kept secretly without interference of third party. They would as much as they can try to conceal the dispute and solve it by themselves. The most important thing is to avoid crowd attention and adjudication by judge on that dispute. However, they would refer the dispute to third party when they Fail to solve it. The third party who is definitely not an outsider normally was an elder, respected and close relative. Sometimes they also would refer the dispute to Imam or head of village.
The practice is accepted and applied until Malaya gains independence in 1957. The Department of Syariah Judiary Malaysia officially introduced sulh which is administered under the Syariah Courts system. Each state in Malaysia has its own administration of Syariah Court where each syariah court has its sulh unit. It is first practiced in Federal Territory Syariah Court of Kuala Lumpur. This was followed bySelangor in June, 2002 and Malacca in September, 2002. The number of state which have adopted this process have increased including Negeri Sembilan and Pulau Pinang. As a Kuala Lumpur and Selangor are two major cities in Malaysia which become the centre for population and commercial, the practice of sulh as an alternative menthod of dispute resolution helps a lot in reducing the numbers of unheard cases. Later, this mean of dispute resolution has been welcomed and followed by all states in Malaysia without hesitation.
4) THE PRACTICE OF SULH IN THE SYARIAH COURT OF MALAYSIA
The position of Syariah Court in the context of Malaysia Legal System.
Basically, in the context of Malaysia Legal System, Syariah Court just like any other court which is a place to administer justice and to have a proper trial. Philosophically, it is one of the places to abolish persecution, cruelty and ultimately to uphold justice according to hukum syara'. However hukum syara' practically in the context of Malaysia legal system means Islamic Law which has been defined according to the specific jurisdiction by virtue of the Federal Constitution of Malaysia.xii
The function of Syariah Court will always be as an institution for the upholding of truth and justice in a professional, effective, efficient and modern manner. In fact, the settlement of disputes out of court is highly commended in Islam. By realizing the importance of sulh in islam, it is right to place sulh process under the jurisdiction of Syariah Court in Malaysia.
How sulh is practiced in Syariah Courts of Malaysia
Chronologically, since August, 1996, a practice of sulh at the Syariah Court of Malaysia has been discussed in several discussions and meeting particularly which have been organized by Islamic Affairs Unit of Prime Minister Department collaboration with the Syariah Judicial Department of Malaysia (Jabatan Kehakiman Syariah Malaysia) and relevant states Islamic Council. Among the important decisions which has been made between the aforesaid parties was to apply officially to Prime Minister Department to institute unit of sulh as a test at Federal Territory Syariah Court. This was happened in 13 th July, 2000. xiii
In the circumstance, the sulh process was introduced and practiced in the Syariah Court in Malaysia in 2001. The Federal Territory Syariah Court Kuala Lumpur was the first to operate sulh in it's court process. This was followed by Selangor in June 2002 and Malacca in September, 2002. The number of states which have increased including Negeri Sembilan and Pulau Pinang.xiv
The sulh process is assigned under the jurisdiction of Syariah Subordinates Court and High Court in the respective states in Malaysia. The legal provosins and authorities of sulh as a method of setting disputes sre provided in each state. For examples, the Syariah Court Civil Procedure (Sulh) Malacca Rules 2004 and Syariah Court Civil procedure Enactment, Selangor 2003.
Here, as an example we will look into the practice of sulh particularly in the Syariah Court of Federal Territories consisting of three Federal Terrrtories which are Kuala Lumpur, Labuan and Putrajaya. The relevant legal provisions, rules and regulations relating to the sulh process are as follows :-
Section 99 of the Syariah Court Civil Procedure Federal Territory Act 1998 which provides that : " The parties to any proceedings may at any stage of the proceedings, hold sulh to settle their dispute in accordance with Hukum Syara'.
Section 247 (1) (c) of the Syariah Civil Procedure (Federal Territories) Act 1998 which clearly states to provide the procedure of sulh.
The Syariah Court Civil Procedure (Sulh) (Federal Territories) Rules 2004 (PU (A) 18/2004
The rules came inti force on 8 January, 2004 and it is applicable in all matters axcept in application for divorce.
Under Rule 3, it provides that where, after receiving a summons or an application for any cause of action, the Registrar is of the opinion that there is reasonable possibility of a settlement between the parties to the action, the Registrar shall-(a) not fix a date for trial of the action within a period of three months from the receipt of the summons or the application; (b) fix a date, as asoon as practicable, for the parties to hold sulh; and (c) serve the notice of the date fixed for sulh on the parties. Here, it is the duty of the Registrar of the Syariah Court to look into the case and use his discretionary power to decide on the date and to issue the notice of the Sulh Session. Futher, where any party, to whom a notice under Rule 3(c) has been serves, without reasonable cause, fails to appear in the date fixed for sulh, such non-appearance shall be treated as a contempt of court and the court may commence proceedings for contempt of court in accordance with Section 229 of the Act.
Under Rule 5 it provides that the procedure of Majlis Sulh shall be conducted in the presence of the parties of the action, chaired by Registrar or any public officer appointed for such purpose by the Chief Syariah Judge. Then, every party shall appear in person and no syarie lawyer may appear or act as such for any party and no party shall be represented by any person without leave of the chairman. 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 apportunity to be heard. Besides, the chairman may take evidence from the parties, accept any document submitted and may, if he thinks necessary, adjourn Majlis Sulh from time to time.
Under Rule 6 it provides that where the parties have reached and 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 consent under Section 131 of the Act.
Under Rule 7 it provides that if however, the action is unable to be resolved in a Majlis Sulh, the chairman shall report the matter in writing to the court and may append to his report any note taken in the Majlis Sulh. And may make such recommendation as he thinks fit.
Under Rule 8 it provides that the court, that receives the report, shall fix a date for hearing, to continue the proceedings for thr purpose of disposing the case. Under Rule 8, its provides that no cost shall be allowed for Majlis Sulh. However, the parties are required to pay a small sum of money as registration fee.
Practice Direction No.3 year 2002 –
According to Practice Direction No. 3 year 2002, JKSM has directed that for each case, which is eligible for sulh, notice must be issued not more than 21 days after it was registered. This is to ensure that justice can be assured through a speedy sulh process.
The concept of sulh in Malaysia is quite different from what the classical Muslim jurists has discussed. The difference relates to the procedure prior to the sulh session and after the session is over. As a court procedure, each case has to be registered in the registry og Syariah Court and will be evaluated by the Court registrar. The second difference concerns the scope of sulh. The scope of sulh pertains to matrimonial matters within and after the marriage including maintenance, jointly acquired property, custody of children, consolatory gift (mut'ah) and others and it is not applicable in matters relating to divorce.xv
Sulh can be categorized as a process where disputed parties in any relavant case are called to the proper session (Majlis Sulh) organized by the Syariah Court following a proper procedure.
Supposing that a settlement has been achieved, an agreement will be signed by both parties based on the stipulated conditions which they have agreed earlier in the Majlis. The agreement will be prepared and signed by both parties. Later, it will be issued as a court's order, whether by the Syariah Subordinate Court judge or Syariah High Court judge.
As a procedure to be complied with after a party filed his or her application in the Syariah Court, the sulh Process will beinn 21 days after the case has been registered. The settlement duration given to the disputed parties is three (3) months.
In a process of sulh, there is a Sulh Officer who will conduct throughout the process by complying certain rules and regulations. The sulh Officer has been created in every Syariah Court in Malaysia. The main function of sulh officer is as facilitator in the process so that the parties are satisfied with the process and achieve an amicable result. Sulh officers in the court institution are not confined to just holding sessions for the sulh process. Some of them have been given "Tauliah Hakim" to act on behalf of judges if the latter is on leave or attending o course. The purpose of doing so is to ensure that there will be no delay in hearing the case and ultimately to follow the practice of fixing a trial date within 21 days. Technically, a sulh officer could become a judge, have a trial, and give a judgement provided he has the tauliah hakim.
Sulh Working Manual
There is a Sulh Working Manual for the Sulh Officers as a guideline throughout the process In order to help the Sulh officer manage the sulh session. Pursuant to the aforesaid sulh Working Manual the process of sulh will be conducted as the following :-
Firstly, the Sulh Officer will have an introduction with all the parties including himself and explain the purpose of having sulh session.
Later, the sulh officer will recite the surah al fatihah and prayer.
Then, the Sulh Officer would be to remind all the parties to observe certain rules in the course of the process, such as the party to be given an opportunity to talk, and whenever one party is talking, the other one should listen without interruption.
The Sulh Officer would always remind the parties that they are not forced to agree on anything.
They must try to understands each other's problem but not at the expense of one's right.
After the reminder is read, there will be submission by the parties in dispute at the joint meeting. They can express the issue and describe the main problem if they cannot comply with it.
They can state the reasons they have to agree or not to agreed
If the joint meeting does not work, then the sulh officer can ask one party to leave the session and conduct the session with one party in attendance. This is known as Caucus meeting.
This is done through the discretionary power of the sulh officer by looking into any anticipated situations that may prolong the case.
Then, ever after the caucus meeting is done there is still no settlement is agreed upon, the disputed will be brought for trial.
Otherwise, if the settlement is agreed upon by both parties then the settlement shall be endorsed as a court order.
The Sulh officer is obliged to keep secrecy of the sulh process.
There is an Ethical Code for Sulh Officer which is to govern the conduct of the Sulh Officer in handling the sulh cases.
It is divided into two parts which are the First part deals with general responsibilities of sulh officer when holding the post. Among the responsibilities are that he is not to indulge in behavior that would jeopardize the sacred name of the Syariah Court as an institution of justice. He or she is not allowed to socialize in a suspicious situation where his or her credibility as a person to uphold justice iis questioned.
The Second part deals with special responsibilities for a sulh officer while conducting the sulh process. Among others, the officers is not allowed to conduct the case while he or she unwell, hungry or angry. He or she is also not allowed to hear any case of his enemy or his friends to avoid bias in facilitating the case.
Despite sulh has been applied in the Syariah Courts of pertaining of civil cases, there is no provision to grant sulh in criminal law cases. The reason could be that the maximum punishment provided for Syariah criminal offences is not severe enough as such it is not necessary to grant sulh. Futher this could be due to perception which claims that since syariah Court of Malaysia is not implementing hudud and qisas hence, it is not necessary to apply sulh as part of procedure in setting criminal disputes.xvi
STATISTIK KES SULH MAHKAMAH SYARIAH WILAYAH PERSEKUTUAN TAHUN 2005 - 2008
BIL | TAHUN | DAFTAR | SELESAI | JUMLAH SELESAI | DALAM PROSIDING | ||
BERJAYA | GAGAL | TIDAK HADIR | |||||
1. | 2005 | 340 | 178 | 154 | 332 | 60 | |
2. | 2006 | 577 | 326 | 124 | 110 | 560 | 77 |
3. | 2007 | 779 | 362 | 218 | 176 | 756 | 86 |
4. | 2008 (Jan-Jun) | 443 | 207 | 108 | 133 | 448 | 527 |
JENIS KES | 2006 | 2007 | ||||||||
BAKI | DAFTAR | SELESAI | BAKI | DAFTAR | SELESAI | |||||
BERJAYA | GAGAL | TIDAK HADIR | BERJAYA | GAGAL | TIDAK HADIR | |||||
Mutaah | 75 | 85 | 47 | 20 | 16 | 108 | 99 | 50 | 33 | 19 |
| Harta Sepencarian | 29 | 48 | 25 | 11 | 10 | 87 | 64 | 29 | 24 | 18 |
Nafkah Isteri | 9 | 12 | 11 | 4 | 0 | 26 | 27 | 10 | 6 | 7 |
| Nafkah Iddah | 78 | 79 | 46 | 16 | 13 | 103 | 86 | 46 | 21 | 14 |
| Ubah Perintah Nafkah | 21 | 12 | 7 | 2 | 2 | 38 | 35 | 9 | 13 | 13 |
| Tunggakan Nafkah | 9 | 12 | 5 | 4 | 1 | 19 | 16 | 4 | 7 | 8 |
Nafkah Anak | 115 | 129 | 80 | 23 | 29 | 141 | 145 | 73 | 39 | 26 |
| Ubah Perintah Hak Jagaan/Nafkah anak | 10 | 8 | 3 | 2 | 1 | 9 | 12 | 4 | 5 | 3 |
| Ubah Perjanjian Hak Jagaan/Nafkah Anak | 0 | 0 | 0 | 0 | 0 | 1 | 2 | 0 | 1 | 0 |
| Membatal Perintah Nafkah | 0 | 2 | 1 | 0 | 0 | 4 | 2 | 2 | 0 | 1 |
Hadanah | 163 | 153 | 86 | 30 | 33 | 195 | 208 | 107 | 45 | 50 |
Pelaksanaan Perintah | 0 | 0 | 0 | 0 | 0 | 1 | 2 | 1 | 0 | 1 |
| Wali Enggan | 5 | 3 | 0 | 1 | 2 | 4 | 9 | 3 | 1 | 4 |
| Perintah Taat | 18 | 20 | 8 | 6 | 3 | 30 | 28 | 13 | 10 | 6 |
| Selain kes diatas | 24 | 14 | 7 | 5 | 0 | 21 | 29 | 13 | 11 | 5 |
Jumlah | 556 | 577 | 326 | 124 | 110 | 787 | 764 | 364 | 216 | 175 |
560 | 755 | |||||||||
JENIS KES | JAN – JUN 2008 | |||||
BAKI | DAFTAR | SELESAI | DALAM PROSIDING | |||
BERJAYA | GAGAL | TIDAK HADIR | ||||
| Mutaah | 74 | 57 | 20 | 24 | 15 | 72 |
| Harta Sepencarian | 69 | 50 | 25 | 7 | 5 | 82 |
| Nafkah Isteri | 14 | 9 | 4 | 2 | 3 | 14 |
| Nafkah Iddah | 85 | 55 | 28 | 16 | 18 | 78 |
| Ubah Perintah Nafkah | 16 | 14 | 7 | 2 | 4 | 17 |
| Tunggakan Nafkah | 8 | 9 | 1 | 4 | 3 | 9 |
| Nafkah Anak | 84 | 85 | 44 | 22 | 27 | 76 |
| Ubah Perintah Hak Jagaan/ Nafkah Anak | 10 | 15 | 5 | 2 | 4 | 14 |
| Ubah Perjanjian Hak Jagaan/ Nafkah anak | 0 | 0 | 0 | 0 | 0 | 0 |
| Hadanah | 136 | 115 | 58 | 23 | 43 | 127 |
| Wali Enggan | 6 | 12 | 4 | 2 | 7 | 5 |
| Perintah Taat | ||||||
| Selain kes diatas | ||||||
JUMLAH | 532 | 443 | 207 | 108 | 133 | 527 |
448 | ||||||
Berdasarkan kepada statistic di atas, kes sulh semakin menunjukkan peningkatan dari tahun ke tahun iaitu dari 340 kes kepada 557 pada tahun 2006 dan 779 pada tahun 2007. Majlis Sulh dilaksanakan di Mahkamah Syariah Wilayah Persekutuan secara keseluruhan pada mei 2005 dengan tenaga kerja sebanyak 3 orang pegawai Sulh dan 2 orang pembantu. Pelaksanaan majlis sulh di Mahkamah Syariah member kesan yang positif dalam mempercepatkan kes dan membawa kebaikan kepada kedua-dua pihak disebabkan hasil perbincangan daripada persetujuan bersama
5)
ADVANTAGES
ADVANTAGES
Sulh by the name itself means to do good deeds. Definitely, it brings more benefits too mankind especially muslims. Among the advantages are :-
Settlements of dispute(s) without go through court process.
Normally the disputant who adopt this method of dispute resolution can settle their disputes faster than those who go through court process. It is because the parties need not to follow each and every single procedure before a judgement is pronounced. The parties or their syarie lawyers need not to make submission or produce any evidence to strengthen the case. Through sulh, after explanation is given by the sulh officer, if the parties understand and willing to cooperate, they may settle the dispute even in one session i.e one day. This process will save time and cost including fee for syarie lawyer.
The relationship between the disputants and families is well preserved
The decision in sulh process is reached by both parties voluntarily without coercion or intervension of anybody. The parties have to throw away hatred and enmity between them. In other to reach a mutual settlement, one party has to respect right of another party. It may occur that one party has to give away his right to ensure both parties settle the dispute without fighting in court. For example, in custody and jointly acquired property cases, a father may loss his car rather than loss love and affection of his children. Protection of welfare of children who are the victims of a divorce will be maintained.
Mutual agreement is more be respected and blessed.
The parties who are agree to settle their dispute through sulh process is blessed because they follow the teaching of Islam and the tradition of Rasulullah. They adopt a peace making solution and their heart will feel safe, no hesitation and tranquil. The children will respect more their parents because the latter display a good character towards them. Both families will continue their relationship even the parties are separated. The parties will become model to other partners and crowds will follow their footsteps.
Protection of dignity and privacy.
A sulh process is attended by the disputants and a sulh officer. He or She has to keep secret all information reveals by both parties during sulh process. No lawyer or representative is allowed to attended the session. Sulh session is done in a special room with surrounded with a four walls. It means no matter what secret to be revealed during that session, no one will know except the parties and the sulh officer. So that, by avoiding court process, the parties will preserve their life dignity and matrimonial privacy from crowd's attention.
6) DIFFERENCE (S) BETWEEN SULH AND TAHKIM (HAKAM)
Sulh and hakam are two kinds of alternative disputes resolution. They have their own character and function. However, their aim is the same that is to resolve the disputes between the disputants who voluntarily agree to solve their dispute amicably without going to court.
As far as subject matter is concerned, both hakam and sulh have something in common where whatever can be solved by tahkim can also be solved by sulh.
But both of them differ in certain aspect, They are:
Firstly, in sulh an amicable settlement may be reached between the parties with or without the involvement of other, whereas in tahkim the appointment of a third party is indispensible.
Secondly, the agreement concluded during sulh process is not binding upon the parties. It has to be brought before the court to be endorsed as a legal and enforceable agreement. However, according to majority of jurists, the agreement concluded in tahkim process is binding upon the parties without intervention of the court. In Malaysia, the practice is quite different where agreement or report of hakam must be presented to court. For example, a hakam reported that a divorce is better for the parties. Then, the report will be presented before a syarie judge and the judge will order the husband to pronounce talaq before the court.
Thirdly, sulh can only be resorted to if the dispute has already occurred which means it cannot address a prospective dispute, but tahkim can address both existing and prospentive disputes.
Fourthly, the job scope of a mediator is her or she gives opportunity to the disputants to discuss their argument. He attempts to reconcile both parties to reach an amicable settlement. However, a hakam plays a more coercive role and dicide on an outcome based on arguments presented before him.
No matter what are their differences, the most important thing is both mentods really help the court in reducing the number of backlog case and silaturrahim between the parties is well preserved and maintain.
7) PROPOSED IMPROVEMENTS OF SULH IN FUTURE
Before sulh comes into picture ten (10) years ago, public has no confidence in Syariah courts. It is because they have to wait for years to settle their problems. Because of that matter, the Department of Syariah Judiciary Malaysia introduced sulh process. Since that time, according to statistic, it reduces a lot number of backlog cases. After ten (10) years, it needs improvement to be more efficiently practiced in future.
There should be a body perhaps government body to promote and encourage sulh or other alternative dispute resolutions. It will organizeconference, seminars, workshops on sulh which is acces able to public so as they will gain knowledge and get more information regarding alternative disputes resolutions. Campaings on sulh awareness should move cross country to create awareness on sulh and inform its advantages to public.
Meanwhile, syarie lawyers also could help the government in promoting sulh. They should encourage their clients to settle their problems through sulh rather than going through court process. They have to explain the pros and contras when facing with court process. Moreover, if the disputes not only between the husband and wife but also their children and both sides family. Because of that, as syarie lawyerwho are well versed on Islamic law, they should elaborate to their clients the beauty of sulh as it had been practiced since before the Prophet Muhammad (saw) prophethood.
Besides, sulh should have its own laws, rules and procedures. So far, only Selangor has its own codified laws on sulh namely "Kaedah – Kaedah Tatacara Mal (Sulh) Selangor 2001". In other states in Malaysia, section on sulh is provided in syariah civil procedure rules/enactment of states. As sulh plays an important role in syariah judiciary system, it should have its own rule to state the laws and procedures on sulh.
In respect of administration of sulh, particularly in Syariah Court Federal territory of Kuala Lumpur, administration of courtrooms and sulh unit totally separated. Every case registered will be distributed to courtrooms within jurisdiction of the case. Any case which has to undergo sulh process, it will be transfer to sulh unit. The sulh Unit has its own officers and assistants. These two units only connected after a sulh session is over. It is because if the session successful the sulh assistant will transfer back the report to the pre-determined court to be endorsed as an order. If it fails the case will be transfer back to undergo court process. The practice may cause problems such as a file missing, misunderstanding between the two units and time management. It is suggested that each courtroom has its own sulh officers and assistants. So that, sulh process and trial could be done within the same vicinity and the problems could be cured.
Unlike the practice of Singapore Syariah Court, xvii application for divorce cases is not open for sulh. But these cases are the most registered cases in Kuala Lumpur Syariah Court. They are also among the backlog cases in the category of case which is open for sulh. Through sulh, hopefully, a marriage could be saved or even a divorce is indispensible with it could be done in a rightful and respected manner. Furthermore, this process will protect dignity of the couple. It is because if a divorce application is brought before the court, both parties have to give evidence and statement regarding personal behavior and bad things about their spouse. Even though through sulh both parties have to reveal anything regarding their marriage but it is private and confidential between the spouse and a sulh officer.
In order to encourage sulh anf avoid court process, the administration of syariah court may impose a high fee for registration of cases. It is suggested that when a person comes to court, counter assistant should explain to him/her the advantage of sulh and no fee is charged. If he/she refuses sulh but insists court process, a high fee would be charged for example RM100. Or it can be that every case will go through a sulh process. If it unsuccessful, a high fee would be charged so as to encourager the parties to struggle for a sulh.
Then, it should be no time limit and fixed for a sulh session. For a case, it can be more than one session and the parties are free to fix the session on their own. For example, a wife comes to court for a divorce matter. She will be referred to a sulh officer will contact, either by phone or letter, the husband and fix a date for a sulh session. This effort may avoid one party does not turn up for a sulh session.
These are among suggestion that can be taking into consideration in improving sulh process. Perhaps from time to time more ideas could be given to improve this noble mean of dispute resolution. Improvements are needed sa as to bring a more reliable and effective sulh process.
8) CONCLUSION
Asulh practice in SYariah Court in Malaysia is proven practical, successful and vital alternative in resolving dispute in Islamic Legal System. Anyhow, although sulh is compulsory as a first step process before the case could be listed for hearing, the success rate of settlement of disputes is however not easily determinable because the jurisdiction of the Syariah Court in Malaysia is restricted.
Thus, the initiative taken to make sulh process mandatory before the case is listed for hearing in courts is highly desirable is settling disputes because of its potential of reducing the backlog cases. Iviii From the report provided by the Unit of Sulh, Syariah Court) Federal Territory of Kuala Lumpur for the past few years since sulh process has been started practicing, it shows a remarkable change for the administration of the Syariah Court in Malaysia especially in resolving dispute and at the same time managing to reduce the backlog of cases. As a matter of fact, the backlog of ceses varies from one state to another. However, there is much hope that the sulh process will eventually assist in clearing all the delays and justice will be served for the disputed parties.A Little Death In Dixie
A Little Death In Dixie